In India, the judiciary in theory can
be a dictator with very little options existing to question its choice. It can
turn itself into an institution without accountability at the whiff of the hat.
It per se exists in current boundaries only due to its own restraint and this
is by its own admission at different points of time. With passage of and more
so in recent years, the court has turned a law into itself exercising
jurisdiction on things all and sundry. It seems to have an opinion on
everything under the sun. Often it functions to the gallery rather than
application of judicial principles on matters of law. It has taken refuge on
the grounds that it fills the vacuum when the executives abandons its role. The
fact of the matter however is often it seeks to encroach into executive powers on
the grounds of inefficiency of executive in implementing what can be termed as
pro-people decisions. In exercising power under the garb of protecting welfare
of the people from the hands of allegedly inefficient executive, it has run
riot on many occasions, the implications of which might be felt for a long time
to come.
There has been intervention in many
spheres across the polity and social spheres in the country. Many posts in the
past have highlighted the movement towards what is termed as judicial
dictatorship. The interventions have been more acute on the front of the
cultural sphere. The courts have been proactive in cracking down on what are
perceived as essential cultural practices of the Hindus. They have been more than
strident in seeking to demonstrate the modernist credentials or perhaps woke
credentials. The post-independent India was seen to be moving towards a modern approach.
It was felt that the past was hindering India’s progress. In other words, India’s
problems arose from its being a prisoner of the past. Therefore, there appeared
a need to be breaking away from these retrogressive cultural practices often
alleged to be a barrier in India’s movement towards the modern and scientific
approach. In fact, the fundamental duties brought into the constitution in the
Emergency highlights the need for inculcating scientific temper.
The argument was India was steeped
in blind faith and superstitions. In the US and Europe, the traditional
Christian practices remained untouched. While the state was supposed to be
secular, the realm of the personal might be religious. Though there were practices
that might be termed arising of blind faith or superstitions, such practices were
not touched. In fact, in the US there evolved the principle of sincerely held
beliefs or the doctrine of ministerial exception. If that were to be applied in
India, for instance, the Sabarimala issue or Travancore vault opening issue or
Shani Shingapur issue would all be outside the domain of the courts. In the US
and Europe the courts adhere to the principles and stay away from these matters
of personal faith. Yet in India, the courts in the garb of modernity or at
least seeking to gain brownie points from woke gallery have sought to encroach upon
these practices linking them to the propriety of constitutional principles.
The underlying logic is India cannot
be seen to be practicing things of faith that perhaps were suitable centuries
ago but have no place in the scientific society that India currently seems to
profess. It is a trick drawn of Marxist toolkit if one might call it. At the
second level, it is also about using judiciary to attack institutions of Hindu
faith. The issues of attack arise on the grounds of secular principles or
narratives that are little to be disputed. One instance is about prevention of
animal cruelty. This is an issue that might find resonance among large section
of society. The narrative of prevention of animal cruelty is used to attack
traditional practices like jallikattu or kambala. These practices are
reflections of the diverse cultural milieu that the Indian rural landscape has
offered and sustained for centuries. They are intrinsically linked to
agricultural activities prevailing in the landscape. Attack on these
institution would deprive the people of their linkage with the culture they
have grown up with. As the deracinated society takes shape, it is easier to
break the religious practices and seek to convert them into the religions of
the Abrahamic mound. The second instance is something that was of cracker ban
under the guise of prevention of pollution. This too was relatively low hanging
fruit since there is near consensus on pollution being bad and availability
heuristic suggesting crackers to be the core of it.
The point whether to ban these
practices or otherwise are purely the domain of the executive. The judiciary,
it must be reiterated has no role in these. For instance, the judiciary was
very active in clamping down on dahi-handi practice in Mumbai on the grounds of
safety. The practice might or might not be safe but judiciary cannot set the policy.
The practice of dahi-handi being allowed or no lies in the domain of the state
executive or the local body. They can determine whether it violates any law or
otherwise. For good or bad, they can seek to bring the law that might legitimize
or make it illegal. Yet that is the domain of the executive or the legislature.
The judiciary can only judge on the grounds whether the practice is violating
any existing legislation. If it is not, irrespective of the grounds, the
judiciary cannot intervene and seek to what it believes in setting right the
alleged irregularities on the grounds of safety or otherwise. If there is no
violation of existing law, it has to uphold it. It can adjudicate on the
legislation itself but the grounds are limited to competency of the authority
to frame such a legislation or whether the legislation violates the fundamental
rights or is ultra vires of the constitution. On no other grounds, it can
intervene. One might not ascribe ulterior
motives to the judiciary in terms of its judgment denigrating the Hindu
practices. Yet the very fact the ways judgments emerge manifest a suspicion of
the same. The courts must confine themselves to the contours that have been
laid down for them.
Comments
Post a Comment