Satya Prasoon, Disha Chaudhry & Jai Brunner
Centre for Law and Policy Research, Bangalore, India
There are many academic traditions of interdisciplinary enquiry and critique that can be employed to interpret the Indian Supreme Court's record in 2018. Each has its own sets of presuppositions and points of departure, and each might interpret the judgments differently and view the Court's performance as efficient, counter-majoritarian, mediative, incremental, transformative, or revolutionary. Since the Indian Supreme Court is a polyphonic institution, speaking through different benches in different tones, such miscellany is inevitable. We can, however, see some general trends and safely draw provisional conclusions. Despite this, the expanding role of the Supreme Court in public life cannot mask the crisis of accountability and public reasoning function which continues unabated despite the unprecedented 2018 press conference (previously discussed on this blog).
In 2018, the Court preoccupied itself with conventional questions of constitutional review, interpretive tasks of giving meaning to contested values of equality, religious freedom, federalism, and privacy, even as it mediated disagreements of policy and governance. There was a concerted effort to clarify and consolidate precedents on long-simmering disputes in constitutional law with the formation of numerous constitution benches. The centrality of the Supreme Court to Indian politics has been a given for quite some time now, even as its control has deepened. This trend is nearly inexorable now as the judicialisation of political and policy questions continues unabated.
By any standard, 2018 was a big year for the Indian Supreme Court, due to the number of ‘politically charged' cases and constitution bench judgments, controversies within and beyond the courtroom, and the huge expectations placed on the Court. 1166 judgments were delivered through the year in the Court’s role as the apex appellate and constitutional court of India. We have profiled ten cases that captured public imagination deeply and shaped political-constitutional discourse in substantive ways. The list, far from being exhaustive, is nonetheless a fairly representative slice of the Supreme Court's imprint on national discourse. It is gradually becoming apparent that the growing profile of the apex court in national politics survives its uneven record as a forum of public reasoning and a lighthouse for accountability and transparency.
The discussion of the ten cases is divided into themes and split across two posts. This week’s post deals with themes of substantive equality, reservation policies and counter-majoritarianism. Next week’s post will deal with themes of civil liberty, federalism, privacy and biometrics, and religion and gender equality.
Towards Substantive Equality
Two big decisions by Constitution Benches in Navtej Johar v. UOI and Joseph Shine v. UOI illustrated the Supreme Court’s deepening commitment to substantive equality. The Court struck down colonial penal provisions – Section 377, which criminalized consensual same-sex intercourse, and Section 497. The latter section dealt with adultery, but only made provision for a man to be punished for having consensual sexual intercourse with the wife of another man (previously discussed on this blog). By decriminalizing sodomy and adultery through multiple concurring opinions, the court signalled that penal provisions couched in Victorian morality cannot have a place in modern India. The judges made the non-discrimination clause under Article 15 of the Indian Constitution more robust by expanding it to sex-based stereotypes, indirect discrimination and forms of benevolent patriarchy (which gave penal immunity to married women under the adultery provision). Further, the Court found an opportunity to apply the 2017 Puttaswamy judgment, which established privacy as a fundamental right. Hopefully, these judgments will send a decisive signal against state intervention in matters of personal morality.
Balancing Reservation Policy
Equality clauses in the Indian Constitution allow compensatory affirmative action through reservation policies, in favour of disadvantaged sections of society. The courts are often required, when dealing with reservation claims, to balance the interests of the "disadvantaged groups" with claims of reasonableness and non-arbitrariness; so that the general principle of equality is not sacrificed at the altar of social justice. Reservations have been litigation-prone, as, often political, consensus, due to vote bank politics, does not ensure a reasonable policy.
In Jarnail Singh v. Lacchmi Narain Gupta, the core question was whether constitutional reservation for Scheduled Castes and Scheduled Tribes (‘SC/STs’) applies at the entry level or at all ranks, to ensure their adequate representation at various levels of public employment. Moreover, it raised the question: can the claim of a fundamental right to reservation in promotion be made without States justifying it by producing evidence of inadequate representation? The Union and various States sought the review of Nagaraj, a 5-judge decision which made reservation in promotion contingent upon the States demonstrating the need for such reservation.
The Court in Jarnail Singh held that the Nagaraj judgment did not need reconsideration by a 7-judge bench, but it did extend the so-called “creamy layer” exclusion test to SC/STs seeking reservation in promotion. Previously inapplicable to SC/STs, the “creamy layer” exclusion entails denying an individual reservation on the basis of their high income. Nevertheless, the judgment modified Nagaraj in so far as it dispensed with the need to collect quantifiable data to demonstrate current backwardness of the prospective beneficiaries.
The Jarnail Singh judgment raises two important questions. Does removing the data collection requirement from Nagaraj, limit a State’s liability with respect to ensuring its reservation quotas are justified on reasonable grounds? Moreover, does extending the “creamy layer” exclusion to SC/STs hurt the interests of these groups? As often those who had the best chances of promotion, without foregoing administrative efficiency or general anxieties about ‘merit’, came from the creamy layer.
Looking forward, the debate surrounding what limits should be place on reservations will continue to stay in the headlines, given recent introductions of the EWS (Economic Weaker Sections) quota through a constitutional amendment, the Gujjar quota in Rajasthan and the Maratha quota in Maharashtra. In this climate of competitive populism, the Supreme Court’s model of modus vivendi in Jarnail Singh might be severely strained, and data collection might make a re-entry soon.
Record as a Counter-Majoritarian Court
In 2018, the court had a mixed record on protecting the rights of minorities as a counter-majoritarian institution. The Court has shaped the discourse on two key societal issues – cow protection and vigilantism, and the Love Jihad myth. Love Jihad is a term that arose from a right-wing conspiracy campaign, which accuses Muslim men of attempting to convert Hindu women to Islam by feigning love or promising marriage.
It acted as a moderate force in curbing vigilantism and lynching in one case even while its unintelligent intervention acted as a catalyst in normalizing the propaganda of fundamentalist groups in the other case. In Tehseen Poonawalla (the cow vigilantism case), the Court assessed the disturbing increase in incidents of mob vigilantism in the name of cow protection in the last few years. It responded by issuing a slew of directives to all State governments to curb the menace of cow vigilantism and asked the Union Parliament to draft an anti-lynching law. Unfortunately, even after the passage of 6 months, the Parliament, which is the supreme legislative body, is yet to draft an anti-lynching bill.
The same bench of the Supreme Court also acted as a naïve enabler to the Love Jihad myth, when it instituted a National Investigation Agency (NIA) probe into an ordinary case of interfaith marriage in Shafin Jahan v KM Ashokan (Hadiya Marriage case). A woman by the name of Hadiya Jahan (formerly Akhila Ashokan) converted to Islam and married a Muslim man, Shafin Jahan.
Hearing an appeal from the Kerala High Court, which had annulled Hadiya's marriage on imagined apprehensions, the Court converted a simple matter of annulment of an illegal marriage into a roving enquiry into alleged Islamic propaganda and Love Jihad. The Court made the unusual decision to institute an NIA probe into Hadiya's husband antecedents, keeping Hadiya under parental custody for over 100 days. Through its hearings, it gave credibility to the political propaganda of "Love Jihad."
It speaks volumes about our biases if the Constitutional Court of the world's largest and most diverse democracy casts a suspicious glance at inter-faith marriages. The Court eventually did restore Hadiya's marriage to Shafin Jahan and delivered homilies to the fundamental right to choose a religion and marriage partner, but the judgment cannot hide its unsuspecting, if only temporary, legitimization of the Love Jihad discourse.
With the analysis in these posts we present to the readers a 10-case series by the Supreme Court Observer, where we have detailed the journey and the reception of these cases. It is written with a common, non-technical, reader with an interest in public affairs in mind. However, the detailed references and hyperlinks allow the more informed reader to look into the journey of these cases more intensively. Below, find links to #10 Cases that Shaped India in 2018:
Constitutionality of Aadhaar Act (K.S. Puttaswamy v. Union of lndia)
Sabarimala Temple Entry (Indian Young Lawyers Association v. State of Kerala)
Constitutionality of Section 377 (Navtej Johar v. Union of India)
Arrested Activists (Romila Thapar v. Union of India)
Decriminalisation of Adultery (Joseph Shine v. Union of India)
Reservation in Promotion (Jarnail Singh v. Lacchmi Narain Gupta)
Electoral Disqualification (Public Interest Foundation v. Union of India)
Hadiya Marriage (Shafin Jahan v. KM Ashokan)
Cow Vigilantism (Tehseen Poonawalla v. Union of India)
Special Status of Delhi (Government of NCT of Delhi v. Union of India)
Suggested Citation: Satya Prasoon, Disha Chaudhry and Jai Brunner, ‘10 Cases that Shaped India in 2018’ IACL-AIDC Blog (1 March 2019) https://blog-iacl-aidc.org/2019-posts/2019/3/1/10-cases-that-shaped-india-in-2018