It is difficult to think of another time when the public agenda was set in so sharp a way by judicial pronouncements. The judgments of the higher courts matter in most democracies where there is a separation of powers, but the sheer frequency of socially relevant judgments in today's India is quite staggering.
It is tempting to attribute this onrush of judgments to the fact that Chief Justice Dipak Mishra retires on October 1 and, consequently, there was a need to conclude all cases involving him. Yet, what is significant is not merely the timing but the subject matter of the cases that the Supreme Court has decided. First there was the case of disqualifying potential — as opposed to convicted — criminals from holding public office. Then there was the issue of the legality and scope of Aadhaar, a subject that involves the future of India's elaborate network of welfare payments and tax revenues. That was certainly an issue the Supreme Court needed to settle once and for all, if only to remove the lingering uncertainty. Apart from that, there was the petition seeking a review of an Allahabad High Court judgment over the status of mosques in property disputes — a judgment that has a direct bearing on the never-ending litigation on the mandir-masjid dispute in Ayodhya.
However, apart from these crucial disputes involving public policy and questions of law, the Supreme Court appears to have focused its interest on social policy. Thus, in less than a month, the country has witnessed the decriminalisation of homosexuality and adultery and a sanction to modify a traditional (but discriminatory) practice in the famous Sabarimala temple. These judgments involving personal laws and the conduct of religious practices are highly significant and overturned old laws and customary practices.
An incidental feature of these judgments is that apart from those involving homosexuality between consenting adults and criminal prosecution for adultery, the decisions weren't unanimous. There were dissenting judgments on the Aadhaar case, the status of mosques and the Sabarimala temple entry issue. Some of these dissenting judgments were diametrically opposed to the majority judgment. Justice Chandrachud, for example, argued that Aadhaar was unconstitutional and should not have been passed as a Money Bill. He even questioned the right of the Speaker of the Lok Sabha to determine what should be a Money Bill, without judicial review. Justice Indu Malhotra in the Sabarimala case made out a persuasive argument against judicial interference in matters of faith, even when they failed the test of rationality.
Another curious feature of the minority judgments is that they were held up as the “correct” judgment by those who were unhappy with the majority judgment. In the social media, at least, Justice Chandrachud was painted as a poster boy by those who put privacy over financial integrity. Likewise, many Hindu traditionalists found it significant that the only woman judge hearing the case chose to be on the side of custom.
The cherry picking of judgments is an occupational hazard and the Supreme Court can at best smile indulgently at the attempts to secure consolation prizes. Their celebration or otherwise won't affect the final discourse, even though the terms of public discourse can be affected.
However, that such sharply different opinions can be expressed in judgments that are said to embrace interpretations of the law, raises some troubling questions. These are not original questions but it is noteworthy that they haven't been raised in the context of the public discussions on the judgments.
The most important concern the philosophy behind the judgments. It is strikingly clear that the judgments reflect — in some cases subtly and in other cases explicitly — the orientation of the judges. I hesitate to call these political orientation because there is an inclination in India to equate political with party-political. There is a big difference. However, considering the sensitivities involved, it is more appropriate to describe the differences as differences in legal philosophies. One set of judges viewed the concerns of the state as legitimate but sought openings to accommodate the rights of the individual. The other philosophy considered individual rights as supreme and which had to be protected against encroachment by the state.
Then there were questions regarding the role of the Supreme Court, always the last word on legal issues. The majority saw the vourt as the upholder of contemporary cosmopolitan values. A minority said that the court should hesitate before jumping in as the big social reformer.
All these raise a big question: where was the law involved? Common sense would argue that there should a great deal of commonality when issues of law are involved, although there could be scope for variations. But when the differences between the majority and minority judgments are so huge, it is clear that the definition of what is the law is subjective and entirely dependant on the legal philosophies of the judges.
In the United States, there is always a huge tussle between “conservative” appointees and “liberal” appointees during the confirmation hearings. Although some of the controversies involve the moral character of the nominees of the President, the positions are almost entirely based on partisan politics. In India, politics is only discussed in hushed whispers and the discussions in secret conclaves are centred on competence in law and — of late — the “connections” of those to be elevated to the bench.
These recent Supreme Court judgments make it very clear that there is no such thing as the absolute law. The law depends entirely on who is interpreting them. A different bench may well have produced different verdicts.
I guess it had to happen. Sooner rather than later, the philosophies of those being considered for higher judicial appointments will start playing a big role in appointments. Should judges be the vanguard or should they epitomise consensual wisdom of the age?
