PHOTO: Reuters
The Indian SC’s inaction over the current Kashmir crisis, and its troubling verdict on the Ayodhya dispute this past week, are both major disappointments. The Indian apex court is now being criticised widely for having undermined its earlier record of progressive and tempered jurisprudence.
The SC had become very proactive during the 1980s, perhaps impelled by the need to resuscitate its image as an abettor to Indira Gandhi’s emergency rule (1975 to 1977). In subsequent years, the judiciary issued numerous directives to protect the rights of prisoners, slum-dwellers and bonded labourers. It took up major environmental disputes ranging from efforts to curb industrial pollution to the protection of water bodies.
In more recent years, judicial activism in India has championed the cause of freedom of information, it has put pressure on government entities to improve the provision of social services, and it won accolades from human rights groups for decriminalising homosexuality.
In a 2017 judgment, the Indian SC declared Talaq-e-Biddat (triple or instant divorce) unconstitutional. While some saw this decision as a precursor of an anti-Muslim agenda, others hailed it as a necessary step to protect women’s rights. Conversely however, this past year the SC did also uphold the right of Indian citizens to choose their spouse and convert to another religion, which was a landmark ruling in a case involving what right-wing Hindu nationalists refer to as the phenomenon of “love jihad”.
Legal experts have been somewhat uncomfortable with the Indian judiciary asserting its authority on the executive via public interest litigation (PIL). Taking advantage of weak coalition governments during the 1990s, the Indian SC had been able to assert the collegium right of judges appointing judges. However, since the rise of the Modi government, there has been a considerable shift in the power dynamics over judicial appointments.
The central government in India has succeeded in making the judicial system more compliant to the political mandate of a populist and increasingly authoritarian government. The unfortunate victims of this wrangling between institutions of the Indian state, is the Muslim minority in the country.
The apex court is delaying hearings concerning the legality of the Modi government’s decision to revoke the special status of Kashmir. In mid-September, the court asked the federal government to restore normal life in Kashmir as soon as possible, but it has not done anything to challenge the government’s chokehold over the region. It has also deferred hearing challenges to the government’s revocation order till November, and chances of judicial activism on this issue seem dim.
With the Ayodhya verdict, the SC has given in to claims of Hindu fundamentalists being backed by the BJP and RSS concerning their right to build a temple at the site of the razed mosque, the demolition of which had sparked widespread communal violence in the early 1990s.
Instead of upholding the Allahabad High Court decision which had divided the disputed Ayodhya site into three portions (and giving Muslims one-third of it), the SC has ruled that Muslims be completely excluded from the right to rebuild at the Ayodhya mosque site. Instead, they have been offered five acres at another location as compensation.
It is now feared that the Ayodhya verdict will become a precedent which can be applied to other disputed religious sites, which will likely worsen the already fraught relationship between India’s Hindus and Muslims.
With the superior judiciary having been tamed thus, there are unfortunately no other state institutions which now stand in the way of tempering excesses of an ultranationalist government, as it continues undermining India’s claim of being the largest secular democracy in the world.
Published in The Express Tribune, November 15th, 2019.
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