Pouring supreme scorn on liberty

The Supreme Court must not hold in contempt what it is mandated to uphold

At first glance, today’s Supreme Court ruling making it mandatory for cinema halls to play the national anthem before screening movies, and requiring cinema-goers to stand up while it is being played, can be seen as yet another decision that appears more whimsical than grounded in Constitutional principle. Instead of refusing to waste its precious time hearing unimportant petitions from self-righteous busybodies who seek to impose their norms on the whole country, the Supreme Court has entertained many such, and created incentives for people to waste the Court’s time, and the citizens’ peace.

But a comment made by the Bench—perhaps revealing the rationale for the decision—should make us sit up and take notice:

When the national anthem is played it is imperative for everyone to show honour and respect. It would instill a sense of committed patriotism and nationalism…Time has come for people to realise that the national anthem is a symbol of constitutional patriotism…people must feel they live in a nation and this wallowing individually perceived notion of freedom must go…people must feel this is my country, my motherland. [LiveLaw emphasis added]

The Supreme Court just dissed individual liberty!

The bench sneered at one of the pillars of the Indian Constitution. Troubling as it is, more than the ruling itself we should be concerned that India’s highest judges think this way, and think nothing of expressing it this way. The Supreme Court is, after all, the ultimate guardian of individual liberty. It gets this responsibility from no less an authority than the Constitution of India. Citizens will be justified in wondering if the Supreme Court can discharge this assigned responsibility if it harbours such cynicism or disdain for individual liberty.

Legal scholars will no doubt cite scores of High Court and Supreme Court judgements that are unambiguous on the matter. Except when “individual liberty comes into conflict with an interest of the security of the State or public order”, individual liberty is supreme. It would be stretch to argue that people not standing up for the national anthem presents a scintilla of risk to the national interest. Indeed, India’s security or social order has suffered little damage from people not standing up for the national anthem in cinemas from 26th January 1950 till date. The judge’s words do not have a force of law, but to the extent they reveal thought processes, we have to worry.

It is bad enough for the Supreme Court to scorn individual freedom. To do so on an issue as unserious and arbitrary as what should be done at cinema halls is terrible.

Tailpiece:

Our emergency at the moment has perhaps led us toforget that if we do not give that scope to individual liberty, and give it the protection of the courts, we will create a tradition which will ultimately destroy even whatever little of personal liberty which exists in this country. [K M Munshi, Constituent Assembly, 6 December, 1948]

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)

On freedom of religion

The only restrictions to propagation of faith are force and fraud.

The last few months have seen the return of religion-related issues into the public discourse. While many of these issues have existed on the agenda of religious-political organisations for decades, their contemporary emergence might has been triggered by electoral calculations and a new public mood for them. It is understandable that many—including, at times, this blogger—have been exasperated by their acquiring centre-stage at a time when India’s growth priorities lie elsewhere.

However, 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.

The rather clear constitutional position—laid out in Article 25 of the Constitution and elsewhere—was muddied by a confused 1977 Supreme Court judgement (Stanislaus v State of Madhya Pradesh) where a bench headed by Chief Justice A N Ray drew a specious distinction between a fundamental right to propagate (that he ruled is constitutional) against a ‘right to convert’ (that he ruled does not exist). He arrived at this conclusion because he reasoned that one’s right to convert violates another’s freedom of conscience, and therefore is untenable.

In his monumental three-volume Constitutional Law of India, H M Seervai argues that the “Supreme Court’s judgement is clearly wrong, is productive of the greatest public mischief and ought to be overruled.” Seervai’s contends that conversion due to force or fraud is clearly unconstitutional because “if A converts B by force or fraud, B is deprived of his freedom of religion and freedom of conscience.” So the only question relates to the constitutionality of conversion by persuasion. Chief Justice Ray, Seervai argues, “mistakenly believed that if A deliberately set out to convert B by propagating A’s religion, that would impinge on B’s “freedom of conscience”. But…the precise opposite is true: A’s propagation of his religion with a view to its being accepted by B, gives an opportunity for B to exercise his free choice of a religion.”

Seervai’s arguments were consistent with the intentions of the Constituent Assembly. He quotes K M Munshi’s speech on the background of Article 25(1) in the Assembly. Munshi states: “So long as religion is religion, conversion by free exercise of the conscience has to be recognised. The word ‘propagate’ in this clause is nothing very much out of the way as some people think, nor is it fraught with dangerous consequences.”

Unfortunately, until a bigger bench of the Supreme Court revisits the 1977 judgement, we have to live with the ‘public mischief’ it has encouraged. There is no doubt that the framers of the Constitution intended to permit conversions as long as there was no force or fraud involved.

That indeed is the liberal position. In The Acorn‘s opinion, inducements and allurements cannot be distinguished from other forms of persuasion. A person ought to be—and is in India—free to convert to any faith for any reason, including financial ones. There is no reason why a citizen cannot sell her soul to the highest bidder, and no reason why she cannot repeat this auction every day. May the highest bidders win, day after day! (As an aside, it is likely that the reservation price for a soul will rise in tandem with per capita GDP.)

In a discussion some weeks ago, a thoughtful colleague noted that while this may be all right in case of individual conversions, large scale conversions change demographics and can be detrimental to national security and the very values in the Constitution that enable such conversions. This is a fair and valid point. Even so, like all other liberties, freedom of religion must be safeguarded without taking it away.

Amid all the heat and noise of partisanship and prejudice, the public discourse does not frame the question properly. The question is what is the proper the role of the state and the government in matters of conversion? The correct answer is that it has—or ought to have—no role, other than to prevent force and fraud, and punish those who engage in them.

Individuals and religious organisations have—and ought to have—the right to persuade people into converting to their faith. The Vishwa Hindu Parishad and other Hindu organisations should be free to organise “ghar wapsis“, “shuddhis“, re-conversions and indeed fresh conversions, individually or in their thousands, by persuasion, inducement or allurement. Not by force or fraud. The Church should be free to convert people, individually or in their thousands, by persuasion, inducement or allurement. Not by force or fraud. Muslims should be free to convert people, individually or in their thousands, by persuasion, inducement or allurement. Not by force or fraud. So too everyone else.

The government must remain agnostic (pun unintended) while people should be free to choose from the options available. As Seervai says, it is the existence and ability to exercise choice, that makes their freedom of conscience a reality.

None of this is the government’s business. To the extent that ghar wapsis and other conversions do not have implicit or explicit support of the state, use or connivance of the government machinery or wilful negligence to prevent force and fraud, there cannot be any objection to them.

Far from getting worked up over the VHP’s ghar wapsi campaign, the focus of the public discourse ought to be to examine the concerned government’s role. There have been cases, as in Y S Rajasekhar Reddy’s administration in Andhra Pradesh, where state government machinery was used to support and abet conversions. This is clearly wrong. If Christian missionaries conduct similar conversions without the government’s support (or opposition) then they are within their rights to do so. Those who think this is a problem can organise themselves and use persuasion to prevent and indeed, re-convert people that the missionaries have converted. They too are within their rights to do so.

Some have proposed a new law to ban all conversions. Such a law is not only deeply illiberal but positively untenable under the Constitution. If today all sorts of laws—from those proscribing conversions to those requiring changes of faith to be approved by government office—are in force, it is in no small measure due to the judiciary’s failure to interpret Article 25 as in its letter and spirit. We will have to await a more enlightened Supreme Court bench to reset the constitutional position to one where the 1977 judgement is overruled.

In the meantime, there is no doubt that persuasion is the only instrument any religious organisation can use to propagate its faith and win converts.

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.

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.

On arming citizens to fight insurgents

The battle in the Supreme Court

The correct way to challenge dubious government policies is to take them to court. So the citizens who filed a public interest litigation (PIL) against the Chattisgarh government’s use of an armed militia to take on the Naxalites did the right thing.

The case is still in progress, but the court’s early comments—well publicised by the media—were noteworthy.

“The allegation is that the state is arming private persons. You can deploy as many police personnel or armed forces to tackle the menace. But, if private persons, so armed by the state government, kill other persons, then the state is also liable to be prosecuted for abetting murder” [TOI]

The court is on the right track. Armed militias like Salwa Judum are not only unconstitutional but actually inimical to internal security. They should go.

The government’s defence has been injudicious so far: it was wholly unnecessary to bring in the bogey of an adverse judgement undermining the strategy of using village defence committees (VDCs) in terrorist/insurgent affected areas. For there is a difference between VDCs and armed militias.

The difference lies both in orientation and organisation. VDCs are about empowering citizens to defend themselves and their properties. They are localised units, small in size and with limited capability. Salwa Judum on the other hand has offensive capabilities, an organisational structure with paid cadres and covers large areas. VDCs are more akin to security guards than to armed militias. The government’s counsel would do well not to conflate Salwa Judum with VDCs. (And ensure that VDCs don’t become Salwa Judums)

According to the government, the allegations against Salwa Judum are overstated. That may well be true. It is likely that the court will appoint a commission of inquiry to investigate into the allegations. Yet, it would be far more prudent for the state to conduct ‘flag operations’, demonstrating that the state is capable of delivering governance. For whether the state cedes ground to Salwa Judum or to the Naxalites, it is the state that loses.

Socialism and the Supreme Court

Expunging socialism from it should matter to all those who take the Constitution seriously

Whether it was Indira Gandhi, Joan Robinson or Shashi Tharoor who first came up with the aphorism, India’s highest constitutional authorities proved it right this week.

Refusing to entertain a petition that sought the deletion of the word “socialist” to describe the Indian republic, a bench of the Supreme Court—presided over by the chief justice of India—said, “Why do you take socialism in a narrow sense defined by Communists. In broader sense, it means welfare measures for the citizens. It is a facet of democracy.” The next day India was described as the “fastest growing free market democracy” by the president. Whatever you might say about India, and its opposite, it turns out, is equally true. (Also true, perhaps, is another aphorism: that the truth is somewhere in between.)

What the president says at NRI conferences is of little import. What the Supreme Court says matters a lot. So it is rather disappointing to see the Supreme Court’s decision and justification for not entertaining the petition to restore the Preamble to the Constitution to its original state. While the bench did admit (via Lex) a petition to review the requirement that all parties swear by Socialism in order to register with the Election Commission, this is as much about principle as it is about practical matters like election rules.

Socialism, the bench said, “hasn’t got any definite meaning. It gets different meaning in different times”. It is strange that the bench should think this justifies keeping the term. If it has no definite meaning, and can mean different things at different times, then it stands to reason that such terms should be kept out of an eternal document like the Constitution. Going by the bench’s logic, would it be justified to amend the Constitution again and declare India a “sovereign, socialist, secular, generous, benevolent, popular, liberal, political, equal, fair, reasonable, indefinite, nice, happy democratic republic”? This might sound flippant, but if there are grounds to keep words that lack definite meaning then why only socialist, why not these other fine adjectives that too broadly mean welfare measures for citizens?

Indeed, the Constituent Assembly debated—and discarded—the idea of including the word “socialist” in the Constitution. And the bench’s position squarely contradicts Ambedkar’s. Socialism, the chairman of the Constituent Assembly held “cannot be laid down in the Constitution itself”, because it amounts to “destroying democracy altogether”. The meaning of the word “Socialism” has not changed since Ambedkar’s time. The Supreme Court bench has failed to give this question the attention it deserves.

The preamble is the place where India describes itself. One would think that the adjectives used there mean something definite. If they don’t, then there’s no reason to keep them there.

Related Posts: Any party you like. As long as it’s socialist. (views, views & views; and the judicial challenge)