Secular judges, religious matters and liberal values

Analysing policy issues concerning religion and the judiciary in the Indian republic is complicated

In today’s lead column in The Hindu I argue that India runs the risk of slipping into a “judiciopapist” order, wherein judges have power over matters of religion. In the context of a case before the Supreme Court concerning women’s right to enter traditionally puritanical male domain of Sabarimala temple in Kerala, I argue that “we should be wary of a judiciary that encroaches on more domains, even for causes we consider as desirable and good.” The article reasons that state intervention in religious norms not only create resistance and backlash, but weakens the incentives for endogenous reform to emerge from within religious communities.

“The caveats [circumscribing the domain of religion] are eating into the right [to freedom of religion]. More significant than the issue of whether women should be allowed entry into the Sabarimala temple is the question of whether secular judges ought to be the ones making that call.” [Reform, only left to the judiciary?]

From this, a few readers promptly arrived at the conclusion that I was in favour of rules keeping women out of the temple, and further—on the basis of an older tweet applauding a Supreme Court ruling against polygamy among Muslims—that I was chauvinistic right winger. Amusing as these labels are, an explanation will certainly help.

Is there a contradiction between my support for the Supreme Court rejecting polygamy and my concern over the Supreme Court deciding on Sabarimala entry rules? Well, only if you presume I oppose women’s entry into the Sabarimala. The value judgement on a decision is quite separate from the value judgement on the process by which the decision was taken. As I spell out in the article, it is better for social reform to emerge within society. The position is the same, whether it is temple, church or mosque entry; or whether it is temple elephant markings, polygamy or voluntary suicide.

However, if the Court is seized with a case, it is just as well that it upholds the constitutional values of liberty and equality. It would be a “good” decision if the court permits women entry into Sabarimala, just like it was a good decision to disallow polygamy. Even so, we should be worried that secular judges are making those religious calls.

Related Links: More this issue by Gautam Bhatia in The Hindu and IndConLawPhil blog; and a monograph by Ronojoy Sen on the Indian Supreme Court and secularism (pdf)

Three thoughts on Independence Day

On freedom, constitutional balance & the dangers of majoritarianism

For quiet contemplation on Independence Day

— A good time to read and reflect on Tagore’s verse

Where the mind is without fear and the head is held high
Where knowledge is free
Where the world has not been broken up into fragments
By narrow domestic walls
Where words come out from the depth of truth
Where tireless striving stretches its arms towards perfection
Where the clear stream of reason has not lost its way
Into the dreary desert sand of dead habit
Where the mind is led forward by thee
Into ever-widening thought and action
Into that heaven of freedom, my Father, let my country awake.

— On freedom of religion

the emergence of contentious issues relating to the place of religion is also an opportunity for another generation to re-examine the balance the Indian Republic has struck on those very issues, and hopefully, allow us to get past them and onto the more important items on the public agenda. [More]

— On protecting liberty from democracy

we are used to thinking in terms of the majority and minorities in ethnic-religious terms. This is bad enough. But a majority is merely a number, and it is possible for majorities and minorities to form over political issues. Even in polities divided along religious lines, have we not seen conservative elements of religious communities come together to proscribe individual liberty? That is the danger. The biggest casualty of direct democracy will be the liberty of the individual. [More]


The Three Thoughts Archive:
It is a tradition on this blog to use Independence and Republic Days as opportunities for contemplation, reflection and introspection.

Three thoughts on Independence Day 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005, 2004.

and on Republic Day 2015, 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005;

A democratic death knell for individual liberty

A referendum is a bad idea

Caught in a political tussle with the Union government that has administrative and “superuser rights”, Delhi’s Aam Aadmi Party government has thrown up the idea of a referendum to decide whether the union territory should become fully a state. Since there is no scope for a referendum within India’s constitutional structure, everything about the proposal—from who are the voters, to who will conduct it to what does any result mean—is an open question.

Regardless, the proposal for a referendum is dangerous, poorly conceived and might destabilise India’s politics more than anyone has imagined. Not for the textual reason that the Constitution does not permit it, but for the deeper, conceptual reason as to why the Constitution does not permit it.

There are two broad arguments for representative democracy: first, the practical transaction costs of taking every issue to all the voters are massive for anything larger than a community of a few thousand people. It would be prohibitively expensive even for a small Indian state to decide every issue by asking voters directly. Technology reduces costs: it is possible that in the coming decades, the availability and adoption of technology will make referenda rather inexpensive to conduct.

So should human civilisation move ahead to direct democracy when transaction costs of referenda are lower than the transaction costs of representative democracy (all that money spent on parliament, legislators and so on)? Not quite. That is because the second argument for representative democracy–even with the quality of legislators that we often detest–is that direct democracy can lead to highly illiberal outcomes. It would be dangerous enough in a homogenous, egalitarian society. It would be extremely risky in a highly diverse society like India’s. Politics is often a contest for relative power among different communities, quite often expressed through imposition or prohibition of their mores. In India we are used to thinking in terms of the majority and minorities in ethnic-religious terms. This is bad enough. But a majority is merely a number, and it is possible for majorities and minorities to form over political issues. Even in polities divided along religious lines, have we not seen conservative elements of religious communities come together to proscribe individual liberty?

That is the danger. The biggest casualty of direct democracy will be the liberty of the individual. The Indian Constitution is a balance between a democracy that expresses the will of the majority, and the fundamental rights of the individual. Weaken this edifice and individual liberty will be the first against the wall.

Referenda are dangerous not merely because people in some states might choose to secede from the Indian Union, but really because rule-by-referenda will be the death knell for the rights of the individual. There is no safeguard for liberty in a referendum.

The AAP government in Delhi would do well not to stoke fires it cannot control. If it does want to assess public preferences–for administrative or political purposes–it can conduct large scale public consultations that ask thousands or hundreds of thousands of people for their opinion. Results of such a consultation will have no constitutional basis, but can go some way in bringing in popular sentiment into public policy.

Related Posts: Dogma, Reason & Democracy; and how to escape the tyranny of the ignorant.

Checking judicial populism & policymaking

Judges should not make policy

All manner of players moved into the space created by a combination of the extreme weakness of the Executive and the logjam of the Legislative over the past decade. In stepped ‘civil society activists’, large non-governmental organisations and the judiciary. Of these only the last has constitutional legitimacy and therefore, judicial actions deserve a lot more scrutiny by those who wish to safeguard the Indian republic.

Let’s set corruption and other malpractices aside for now. What should concern the republic is the role the judiciary sees for itself. Instead of concerning itself with its core functions: adjudicating on civil, criminal and constitutional matters, it has entered domains and taken positions that risk further damaging both constitutional balance and good policymaking.

This is about propriety of process, not merits of the outcome. For instance, it made little sense for the Supreme Court to rule that radio spectrum should always be auctioned. Sure, auctions are one of the best ways to allocate scarce national resources, but the absoluteness of a Supreme Court verdict makes it impossible for the government to say, promote innovation in the wireless industry through a different scheme of spectrum allocation. This is just an example: public policies are best made by the Executive because of the need for flexibility and discretion. When policies arise out of Supreme Court judgements, they do so at the cost of undermining democracy, federalism and quite often, common sense.

Yesterday, the Supreme Court announced that it will set up a “Social Justice” bench, for:

To mention summarily, about the release of food grains lying in stocks for the use of people living in drought affected areas; to take steps to prevent untimely death of women and children for want of nutritious food; providing hygienic mid – day meal besides issues relating to children; to provide night shelter to destitute and homeless; to provide medical facilities to all citizens irrespective of their economic conditions; to provide hygienic drinking water; to provide safety and secured living conditions for the fair gender who are forced into prostitution etc. are some of the areas where Constitutional mechanism has to play a proactive role in order to meet the goals of the Constitution. [Quoted from Bar and Bench]

This move is problematic along several dimensions. First, it is yet another “fast track court” among many fast track courts. Fast track courts sound good, but work well when there are very few of them, and used very sparingly. A lot of permanent fast track courts slow down the entire system (and according to Supreme Court’s latest figures, it has around 65,000 pending cases.)

Second, by shunting public interest litigations (PIL) onto this social justice bench, it is presuming the PILs only ought to be about social justice. Surely citizens of India must be allowed to file PILs about other important public matters, which may not concern social justice.

Third, the mandate of the special bench is a massive intrusion into policymaking and sets a particular social agenda in concrete. Even the founding fathers of the Indian Constitution were unwilling to do this, for they rightly felt that every generation must have the freedom to solve social problems in the light of their own wisdom and experience. The argument that the Preamble of the Constitution calls for social justice doesn’t wash: the preamble applies to the whole purpose of the republic, not a specific task for the Supreme Court. Moreover, going by the Court’s logic, will it now also create benches for economic justice, political justice, liberty, equality and fraternity as well, as they are all cited in the Preamble? If not, why single out social justice?

From recent comments and the announcement of this social justice bench, it appears that the Court is concerned that the Modi government is likely to reverse the social justice policies introduced by the UPA governments. Even if this impression is accurate, it is not for the Supreme Court to protect specific ideological persuasions, either its own, or of previous governments. In a famous case on Barack Obama’s healthcare policy, the US Supreme Court noted

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.[Reason]

That is a fine principle for the Supreme Court of India too.

The judiciary will fulfil its constitutional role if it performs its core functions well. This means dispensing justice, not hardcoding policy, and certainly not acting in ways that “satisfy the desire of society”. The best way to ensure justice—social, political and economic—is for it to speed up the judicial system. For all the Supreme Court’s exertions, there seems to be little by way of fixing this central problem. The Court should detail how it intends to become more efficient and effective, and demand the same of the Executive and Legislature.

Why protests are not constitutional methods

The right to protest peacefully is not in doubt. The wisdom is.

Longtime readers of this blog will know that The Acorn has been a relentless advocate of constitutional methods in conducting our public affairs. We never tire of citing Ambedkar’s Grammar of Anarchy speech (whose anniversary, incidentally, we celebrated yesterday). Ambedkar said:

“we must…hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us. [More here]”

One of the most frequent reactions to criticism of protests and advocacy of constitutional means is “Do you mean to say protests are unconstitutional?” The question has been raised frequently enough so it is important to answer it.

Ambedkar calls these actions “unconstitutional methods“. He does not say that they are unconstitutional. There is a difference. No serious person will deny that Indians have a constitutional right to protest. Article 19(1) explicitly guarantees as fundamental rights the freedoms of speech, expression and peaceful assembly. The constitutionality of peaceful protests is therefore unquestionable.

The question, though, is not whether we have a right to protest or not. The mere exercise of liberty is neither an indication as to its wisdom nor to its efficacy. The question is therefore, about the wisdom and the efficacy of particular actions and their consistency with constitutional morality. This is the crux of Ambedkar’s argument.

For instance, praying to the Almighty is a constitutional act. Sleeping over it is a constitutional act. Protesting peacefully is a constitutional act. Civil disobedience is a special case of peaceful protest, for where it involves disobeying laws of the land, it is an illegal and unconstitutional act. None of these are constitutional methods.

What are constitutional methods? The full answer deserves a book-length treatment. In short, constitutional methods involve engaging the executive, legislature and the judiciary. Through representations to government officials, through persuading and working with legislators, through voting and through actions in court.

These methods are regularly used, do work and in fact deliver the most substantive changes. But there is a curious asymmetry in terms of their standing in the public discourse. While protests and ‘unconstitutional methods’ are romanticised and have a reflexive public appeal, their actual achievements fade in comparison to those achieved by constitutional methods. As Rohit Pradhan asked in an article in Pragati, what are the achievements of Jayaprakash Narayan’s “total revolution” of the mid-1970s? Violence fares even worse. No insurgency has succeeded. We await rigorous empirical evidence but it does appear that change through politics, parliament, legislatures and courts has a much better record on delivering lasting change.

However there is less glorification of these methods and diminishing awareness of what they are and how they can be exercised. This last must be addressed. (At Takshashila, we are attempting this. We have an ongoing policy research project on constitutional methods for civic action and are introducing a course on constitutionalism in our GCPP programme)

Let’s Organise Indians for a Strong Republic

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The people around Anna Hazare in Ramlila Maidan have injected a dangerous element into the Indian polity that presents a threat to India’s national interest.

This is a Facebook page for people who believe in preserving and strengthening our democratic republic, regardless of political views or ideological persuasions.

Defending the Indian Republic by upholding the Constitution

We believe that preserving and strengthening the Indian Republic – by upholding the Constitution, constitutional institutions and constitutional methods – is the enlightened way to seek a better future for the whole nation.

To defend the Indian republic from being undermined from within and attacked from without.

To practice and promote constitutional methods in our society and polity.

A million ironies now – grammar of anarchy edition

Constitutional defence

B R Ambedkar’s grammar of anarchy speech at the Constituent Assembly—a perennial favourite with us at Takshashila—got several mentions last week in the light of Anna Hazare’s hunger strike demanding a draconian Jan Lok Pal bill against corruption. There’s no harm repeating the relevant words from his speech:

If we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgement we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us. [Pragati]

Anupam Kher, who was part of the celebrity set that supported Anna Hazare’s hunger strike, is alleged to have criticised the Constitution (drafted under Ambedkar’s chairmanship) on television. His exact words are in dispute but members of the Republican Party of India—a party once-led by Ambedkar—decided to take the decidedly unconstitutional route of vandalising Mr Kher’s house to protest the insult to the Constitution.

The Sanvidhan Bachao Manch (the Protect the Constitution Platform) of Mumbai has correctly arrived at the conclusion that “The Lokpal would be the ultimate authority if the bill is passed. He would be above Parliament and the Judiciary which challenges the basics of democracy.” So they have decided to organise a peaceful protest rally at, well, August Kranti Maidan, on April 14th, Ambedkar’s birth anniversary.

What would Babasaheb say?

Laws that don’t befit the Indian republic

Which outdated laws should we get rid of, and why?

The recent surge of opinions on whether India—a liberal, democratic republic—ought to retain the colonial-era crime of sedition on its rule books is a good opportunity to discuss the general topic.

Which of those laws, or crimes under the Indian Penal Code, according to you, must be repealed? Why?

(Note: Be brief—that’s the best guarantee that people will read you. Restrict your comment to 150 words or less, per law.)

More makers of modern India

Rajadhyaksha’s review of Guha’s book

Niranjan Rajadhyaksha has a fine review of Ramachandra Guha’s “Makers of Modern India” in Mint.

Reading through the selections of the 19 makers of modern India, one is struck by the sheer diversity of concerns that gripped their minds—the gradual reformism of Gopal Krishna Gokhale, the militant populism of Bal Gangadhar Tilak, the enlightened globalism of Rabindranath Tagore, the attacks on caste by E.V. Ramaswami, the feminism of Shinde, the nation-building of Nehru, the futile quest for alternatives to parliamentary democracy by Jayaprakash Narayan, the fight for a free market economy by C. Rajagopalachari, the sharp investigations into caste as a central fact of Indian life by Ram Manohar Lohia and the insights into tribal life by Elwin.

These and other leaders have continued relevance. The splendid economic boom that India is in the middle of will inevitably be socially disruptive as well. It is a well-documented fact that the social strain of such disruption often leads to rebellion or hyper nationalism, to anarchy or oligarchic rule. We see early signs of all these in India, in tribal rage harvested by the Naxalites and the flag waving encouraged by the mainstream political parties. It is critical at such as juncture that India remains in touch with the enlightened political thought that emerged in response to colonial rule and later gave us a liberal republic.

A sound understanding of Indian political traditions would also help us understand the importance of Ambedkar’s perceptive warning on 25 November 1949. [Read the whole thing at Mint]

That Ambedkar’s Grammar of Anarchy speech should make it into the book is appropriate. Contemporary India must read and reflect on perhaps the most prescient set of warnings that the republic’s founding fathers left behind. Ambedkar is well-known, even if his actual ideas are now forgotten, but Mr Guha has done well to commemorate lesser known, not no less brilliant thinkers too. (The book has Gandhi, Nehru, Tagore, Ambedkar, Periyar, Raja Rammohan Roy, Syed Ahmad Khan, Jotirao Phule, Gokhale, Tilak, Tarabai Shinde, Jinnah, Kamaladevi Chattopadhyay, Golwalkar and Lohia)

Mr Rajadhyaksha rightly points out that Mr Guha’s work will be contentious because of who it leaves out. I personally think Goparaju Ramachandra Rao, or “Gora”, should be more than a footnote in modern India’s intellectual history. There are many more.

So why not share who you think ought to be considered a maker of modern India in the comments space? (Note: if you are linking to a URL, please ensure that you enclose it in valid HTML tags)

Socialism and the Supreme Court (2)

Forcing parties to be socialist is not an academic question

Strange are the ways of the Supreme Court. Ruling against a petition to expunge the adjective “Socialist” to describe the Indian republic in January 2008, the Court said socialism “hasn’t got any definite meaning. It gets different meaning in different times.” If we are to accept this bizarre logic, why not declare India a Variable Republic, because the word variable is the most appropriate to describe something that “gets different meanings in different times.”

Yesterday, a three-judge bench of the Supreme Court, presided over by the Chief Justice, turned down the petition again:

saying though the PIL raised an important question of law, it was purely academic in nature at present. “The court will decide such a question as and when a political party which is refused recognition by EC raises it.” [TOI]

(Also see J Venkatesan’s report in The Hindu)

This is equally bizarre. Even if we were to grant that the Supreme Court should decide only on non-academic questions—and requiring every party to swear by socialism is certainly not academic—hasn’t the Bench heard of Swatantra Party’s case that is with the Mumbai High Court?

It may well be that the petitioners presented their case as a question of law and principle. That it is. But it is also more than that. Next time, the petitioners should present socialism as the cause of India’s poverty and a threat to its development. (See Atanu Dey’s recent post)

Related Posts: The background; the petition to expunge socialism from the Constitution; the first dismissal.