Describing its efforts to secure the Sabarimala temple for the entry of women as “suppression of Ayyappa devotees”, Amit Shah last month threatened to “uproot” the Kerala government. He reiterated his position in an interview this week, terming the Pinarayi Vijayan administration’s willingness to enforce the Supreme Court’s judgement allowing women of all ages to enter the shrine as “politicisation”. With the apex court agreeing to hear over four dozen review petitions against its ruling, the Bharatiya Janata Party chief’s remarks require closer scrutiny.
To suggest the Kerala government is “suppressing” Ayyappa devotees is to ignore that they can also be women. The apex court’s judgement recognises precisely this fact: the freedom to worship under Article 25(1) of the Indian Constitution extends equally to women at Sabarimala. The majority of the bench that delivered the ruling held the exclusion of women did not merit constitutional protection as an essential religious practice. Justice Rohinton Nariman held that even if it were assumed to be an essential religious practice, women’s exclusion was overridden by their right to religious worship under Article 25(1) and was incompatible with Article 25(2)’s agenda of temple entry reform.
In suggesting that Ayyappa devotees can only be men, Shah breached his constitutional duty to abide by the Supreme Court’s judgement.
Duty to the rule of law
As a Member of Parliament, Shah is required by Article 99 to swear an oath to “bear true faith and allegiance to the Constitution of India”, to “uphold the sovereignty and integrity of India”, and to “faithfully discharge the duty upon which” he is about to enter. In threatening to bring down the Kerala government for complying with the Supreme Court’s ruling, Shah breached his oath. As Article 141 makes clear – and Dhaniram Luhar, 2004 reiterates – the law declared by the Supreme Court shall be the law of the land, which “cannot be forsaken, under any pretext by any authority or Court”. Disregarding the top court’s pronouncements on the Constitution in fact amounts to disobeying the Constitution itself, as per Dalbir Singh, 1979.
One might legitimately suggest that Shah is entitled to question the soundness of a Supreme Court judgement in keeping with his duty as an MP to interpret his powers under the Constitution in good faith. This principle, called departmentalism, is typically seen in tension with the principle of judicial supremacy, by which the Supreme Court is considered the sole arbiter of the Constitution’s meaning.
However, in cases like Sabarimala, where the judgement recognises a fundamental right, departmentalism cannot be invoked. It is the Supreme Court that is constitutionally entrusted with safeguarding the fundamental rights of all persons who petition it. The court strikes down the questioned law to the extent it is inconsistent with the fundamental right as per Article 13(2). The force of Article 13 combined with Article 32 results in judicial supremacy, leaving no scope for other organs of the state to issue competing interpretations of fundamental rights. Thus, Shah’s duty to interpret the Constitution as a parliamentarian does not justify his call to defy the Sabarimala verdict.
Shah’s comments also comprise an injunction to the Kerala government not to obey the Supreme Court’s ruling and a threat to topple an elected government. The State of Kerala is bound by the judgement, not only as a party to the case but also by Article 144 of the Constitution which enjoins all civil authorities to “act in aid of the Supreme Court”. Since courts have neither the “sword” nor the “purse”, the “might of the State must stand behind the Court orders”, as the apex court ruled in Daroga Singh, 2004. The refusal to comply with judicial decisions for political reasons, Justice Ruma Pal held in State of Haryana vs State of Punjab, 2004, shakes “the very foundation of the Constitution which the people governing the State have sworn to uphold when assuming office”. Moreover, the Kerala government has exclusive competence to enforce the verdict, as its constitutional powers cover public order and the police. Shah, thus, not only tread upon the Kerala government’s constitutional authority but, by demanding defiance of a judgement the state government is duty-bound to abide by, also threatened the rule of law.
Challenging judicial authority
Challenges to judicial authority by political leaders are not new. Consider, for example, the Uttar Pradesh government’s feeble attempts to maintain law and order in Ayodhya in 1992, in violation of its affidavit filed before the Supreme Court. The state government’s inaction, coupled with the actions of the emboldened kar sevaks, resulted in the demolition of the Babri Masjid in violation of the Allahabad High Court’s 1989 orders to maintain status quo regarding the title suit.
More recently, the Rajasthan government, contrary to the top court’s orders, initially refused to act against agitators seeking to prevent the release of the film Padmaavat. In the end, though, the government did comply with the orders and made security arrangements for the release of the film.
These instances starkly contrast with the Haji Ali Dargah Trust choosing lawful means – an appeal to the Supreme Court – to contest the Bombay High Court’s judgement permitting the entry of women into the shrine’s inner sanctum.
Shah is likely the first head of a ruling party in India to openly call for defying a Supreme Court ruling. His threat to topple the Kerala government is also the latest tactic in the Narendra Modi administration’s brand of retaliatory federalism, used in constitutional or extraconstitutional ways to challenge the authority of non-BJP state governments. While the Supreme Court has been somewhat successful in rebuffing some of these attempts by the Modi government, it can do little in this instance. This only makes it more pressing to publicly debate the constitutional significance of Shah’s rhetoric.
Gaurav Mukherjee is a lawyer and doctoral candidate in comparative constitutional law at the Central European University, Budapest. Malavika Prasad is a lawyer.