The Supreme Court pronounced a series of important verdicts in late September. Refreshingly, all dealt with matters that are properly the court’s domain, namely fundamental freedoms and rights, rather than policy issues which are best left to legislators but which the court routinely takes on, like the question of how dark your car’s windows can be. I’m not joking, back in 2012, the Supreme Court entertained a public interest litigation on window tinting, and ruled on how dark glass could get without promoting heinous acts in travelling vehicles. The verdicts and dissenting opinions revealed a tug of war between the Constitution’s stress on individual liberty on the one hand, and its handing of wide-ranging, potentially intrusive powers to the state on the other.
The court’s verdicts on adultery and gay rights were unanimous, and welcomed by liberals. On the issue of the Bhima Koregaon arrests, women’s entry into the Sabarimala temple and Aadhaar, the court produced divided verdicts, and I found myself siding with the dissenting minority. In each instance, the majority opinion favoured the rights of the state over those of individuals, corporations and belief systems.
Bhima Koregaon arrests
In the first case, Romila Thapar and other prominent intellectuals petitioned the court against the arrest of the activists Gautam Navalakha, Sudha Bharadwaj, Varavara Rao, Arun Ferreira and Vernon Gonsalves by the Maharashtra Police. The petitioners asked for a Special Investigation Team to be established to probe the issue and accused the police of making dissent a crime. The majority opinion, written by Justice AM Khanwilkar on behalf of himself and Dipak Misra, who was the chief justice then, rejected the petitioners’ demands, although an intriguing thesis outlined by Arshu John in Caravan magazine suggests there may have been a late U-turn in their opinion, after they had initially concurred with what is now a dissenting minority opinion by Justice Dhananjaya Chandrachud.
The petition seemed like a long shot. The petitioners invoked Article 32 of the Constitution, which allows the Supreme Court great latitude in injecting itself into matters where fundamental rights are at stake. However, the highest court was unlikely to accept a plea by unrelated people to interfere in an investigation that was still in progress and being conducted by a competent authority. That the matter ended in a split verdict shows what a sham the Pune Police investigation was. Chandrachud pointed to several lapses, such as a quote from a Bertolt Brecht play being read as a sign of terrorist intent; a letter purportedly written by Sudha Bharadwaj, one of the accused, which contained 17 words spelled the Marathi way, although she speaks no Marathi; the memorandum of arrest being signed by Pune Municipal Corporation employees who travelled to the site with the police, although protocol demands at least one witness be a local known to the accused; and leaks by police officers to the media of letters that found no mention in the transit applications filed by the police.
The majority did not rule on the factuality of any of these matters, having decided the rights of the accused had not been so blatantly disregarded as to warrant the court’s intervention. I hope there will be a more robust pushback at some point against the foisting of cases by the police and their treatment of process as punishment. Consider that one of the accused, Varavara Rao, who is now 77 years old, has been implicated in 25 cases over the years, starting in the 1970s. He was acquitted in 13, discharged in three, while in nine instances the prosecution withdrew its case. Although imprisoned by a succession of regimes, he is yet to be convicted a single time. And now we are asked to believe he has been plotting the murder of Narendra Modi.
Entry of women at Sabarimala
In the case of the entry of women into the Ayyappan temple at Sabarimala, the majority held the view that the infringement on women’s right to practise their religion under Article 25 (1) of the Constitution was serious enough to warrant an intrusion into religious practice. In this case, I side with Justice Indu Malhotra, who wrote a dissenting opinion. There are hundreds of thousands of temples in India where women are welcomed; in fact, there are Ayyappan temples in every city with a significant Malayali presence, and almost none of them bar the entry of women. Nor is there a blanket ban against female worshippers in Sabarimala, only those between the ages of 10 and 50. This restriction derives from a mythology of celibacy and asceticism associated with the particular deity. The shrine’s power, for believers, is intimately attached to that mythology, and the elaborate rituals and pilgrimage they undertake draws from the same ideas. Given the plethora of female-friendly temples in every town and city in India, I do not see how denying women of child-bearing age entry into this particular shrine curtails their freedom of worship significantly enough to justify the pain the change in rule will cause to the faithful.
The denial of access to women of child-bearing age leaves many outraged, but that outrage has little to do with a perceived curtailment of freedom of religion, and everything to do with a sense that it is a discriminatory provision. Discriminatory practices are everywhere in every faith, but the Supreme Court isn’t about to mandate, for example, that women be given a position on par with men in the Catholic clergy, nor should it do so. It is critical for a secular state to have the power to override religious faith, particularly in a nation like India with its ghastly history of caste-based discrimination, the denial of access to places of worship to people deemed untouchable. However, there is also a danger in not giving customs and traditions their due, as I mentioned in criticising a previous Supreme Court verdict banning the sale of firecrackers during Diwali.
The Aadhaar verdict
The final split verdict is the most far-reaching of the lot, the long-awaited judgement on Aadhaar. I have made my position on the issue clear, and was gladdened by Justice Chandrachud’s full-throated support of civil liberties and individual privacy against the threat of a surveillance state. The majority judgement was spun in the press as being “pro-Aadhaar”, as if it was an up-down vote in favour or against. In truth, there were a number of different issues considered, and what the majority did was to affirm the right of the state to mandate Aadhaar not just for benefits and social programmes, but also for tax returns. On the other hand, it struck down a number of clauses of the Aadhaar Act, notably Section 57, which allowed private organisations to use Aadhaar-related biometric data as authenticators of identity.
Aside from a few small additions, like the linking of PAN cards to Aadhaar, the majority judgement essentially returned the programme to its original intent as an efficient enabler of government benefit programmes. The scrapping of Section 57 is a major boost for privacy advocates and a massive blow for the Modi government’s Aadhaar mission-creep. The greatest danger of Aadhaar was that it would allow data harvested by private enterprises to be meshed easily with data collected by the government. As far as I can tell, that threat has now receded. While I cheered Justice Chandrachud’s stand, I can happily live with the majority verdict.