A floodgate opened

Sabarimala verdict

Alexander Hamilton, one of the founders of the US Constitution and authors of The Federalist Papers, in his paper titled “The judiciary department” (Federalist No. 78), published 28 May 1788, famously commented that the judiciary branch of the proposed government would be the weakest of the three branches because it had “no influence over either the sword or the purse…It may truly be said to have neither ‘force’ nor ‘will’, but merely judgement”.

So, there was nothing to ensure that judicial verdicts would be implemented. His solicitude was natural and justified as there was no history of judicial independence anywhere. Giordano Bruno was tried for heresy. Pope Clement VIII pronounced that he was a heretic and the Inquisition issued the sentence of death. Bruno is said to have made threatening gestures towards the judges and to have told them: Maiori forsan cum timore sententiam in me fertis quam ego accipiam ("Perhaps you pronounce this sentence against me with greater fear than I receive it”).

The US constitution did not provide for judicial review but Chief Justice John Marshall of the US Supreme Court in Marbury vs Madison (1803) asserted this right by way of an artful interpretation, “It is emphatically the province and duty of the judicial department to say what the law is…If two laws conflict with each other, the court must decide on the operation of each. So, if a law be in opposition to the constitution, if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”

He ruled that the constitution is superior to any ordinary Act of the legislature, and judges are bound by their oath to protect the constitution. The power of judicial review made the judiciary a very powerful organ of the State.

In India, after Independence, Chief Justice of the Federal Court H J Kania, in a letter to Prime Minister Jawaharlal Nehru dated 18 December 1947, expressed his concern about the independence of the judiciary: “It seems to me, however, fundamentally essential that the high courts, the Federal Court and the Supreme Court (when established) should not be considered a part of, or working under, any department of the executive Government of India. It should be an independent branch of the government in touch directly with the Governor-General or the President of the Dominion of India.”

Compared with the present massed weight of judicial opinion on invariably every issue from government formation in a state with a hung assembly to fixing the accountability of the high and mighty in corruption cases to deciding issues of faith from triple talaq to Sabarimala, it seems outlandish that in 1947 the chief justice was imploring the prime minister to make the judiciary independent. He had also written “to frame a statutory rule under the Act, defining the relations between the judiciary and the executive”.

From a technocratic court in the 1950s, the Supreme Court of India evolved into the most powerful court in the world, questioning and arraigning every authority and adjudicating on every issue. It sets aside not only Acts of Parliament but also constitutional amendments passed unanimously by both Houses of Parliament and more than half of the state legislatures.

However, the non-implementation of its judgement in the Sabarimala case allowing women of all ages to enter the temple raises questions of its efficacy. Political parties have taken stands with their eyes on the vote bank. Thus, judicial activism has reached a critical juncture when the wisdom of the apex court is being questioned: why does it pass an order that cannot be implemented?

This reminds one of Hamilton’s historic comment about the judiciary being the weakest organ. However, things have changed. While the credibility of all other institutions of the State are at a low, the judiciary still enjoys a better credibility, though certainly not a squeaky clean image. Courts are essentially anti-majoritarian. Democracy is not “the tyranny of the majority”, to use the phrase coined by Alexis de Tocqueville in his seminal book ‘Democracy in America’ and memorialised by John Stuart Mill (‘On Liberty’).

Again, one is reminded of Hamilton, who had warned much earlier against the danger of majoritarianism. Writing to Thomas Jefferson from the Constitutional Convention, he expressed apprehension regarding the use of pure direct democracy by the majority to elect a demagogue who, instead of working for the general welfare, may work for those of the upper echelon and harm those in the minority.

The court is a check against majoritarianism. But, in the case of Sabarimala, it was not a question of majority versus minority. The practice of not allowing women in the menstruating age may seem unreasonable to some but it has a rationale. All women are not forbidden and, like triple talaq, it does not victimise any women.

It may be debatable whether the freedom of religion as guaranteed by Articles 25 and 26 of the Constitution would prevail over the right to equality granted by Article 14 or vice versa, but it is essentially a question of faith, which non-believers and rationalists may describe as humbug. Believers as such are nincompoops in the eyes of non-believers. But the Constitution allows freedom of faith.

However, the larger question is that if the decision of the apex court is flouted to uphold the faith, then the numbers of people supporting or opposing a judgement will become important in other sensitive issues also which may be crying out for judicial adjudication. A dangerous floodgate has been opened. The apex court should have anticipated it.

Roscoe Pound has written, “Making or finding of law…presupposes a mental picture of what one is doing and of why he is doing. Hence, the nature of law has been the chief battleground of jurisprudence since the Greek philosophers began to argue as to the basis of the law’s authority. But, the end of the law has been debated more in politics than in jurisprudence.”