BY VINAY SITAPATI IN INDIAN EXPRESS DECEMBER 28 2009
As this decade ends and predictions fly on the “big event” of the next one, here’s a question you’re unlikely to read elsewhere. What will the next decade’s Shah Bano be? The reference being to the 1985 Supreme Court decision to apply criminal law to provide maintenance to a divorced Muslim woman, even at the cost of reinterpreting Shariah. The court judgment (a) weighed into a political hot potato; (b) becoming a rallying point for upholders and critics of “secularism”, and c) had clear political consequences, even if it wasn’t a landmark legal precedent. To reframe the question in American-lingo: what will our next “Roe v. Wade” be?
Such predictions are speculative. Your guess is as good as mine. But one way to bring validity to such whim is to map past winners and formulate trends. So, first, the biggest political court judgments of the past three decades.
The Supreme Court’s iconic intervention in the 2000s was on the Gujarat riots. In response to allegations of state complicity into the 2002 riots, the Supreme Court created a special team to investigate crimes, transferred cases out of Gujarat, and closely monitored justice delivery. Its unambiguous message: that Narendra Modi, “a modern day Nero”, was being watched. Vying for second place is the 2009 Delhi High Court judgment decriminalising homosexuality. Though the case is technically not yet a Supreme Court one and the political impact has been peripheral, the judgment has the potential to alter the lives of an estimated 23 lakh gay Indians.
The winner of the 1990s, without question, is the 1993 Indira Sawhney case, popularly known as “Mandal I”. While backward class reservations have been implemented in some Indian states since Independence, Prime Minister V.P. Singh’s executive order reserving seats for Other Backward Classes (OBCs) in Central government jobs created a hailstorm. The Supreme Court’s approval of OBC reservations, while limiting all reservations to 50 per cent and excluding rich OBCs from quota benefits (“creamy layer exclusion”), has set the political paradigm for caste-based reservations since. The S.R. Bommai judgment on limiting the misuse of article 356 was arguably more legally-engaging, but it lacked the street demonstrations that Mandal I provoked. On the other hand, “Mandir” (Ayodhya) was probably a hotter political issue in the 1990s, but it lacked the court intervention to beat Mandal I to the top of the ’90s list.
The 1980s of course was Shah Bano; a classic case of a Supreme Court taking sides in a culture war. Following protests from the Muslim clergy, the Prime Minister Rajiv Gandhi backpedaled with a law to annul the Supreme Court verdict.
The repercussions have continued since — his attempt to “balance” constituencies by opening the Babri Masjid for Hindu prayer set the tone for its eventual destruction.
Now to the future. What will the next decade’s defining political judgment be?
Several options are possible. For one, the Supreme Court is currently hearing cases that reevaluate our medical-ethics, such as on surrogacy. These issues redefine how we perceive ourselves, question “who are we”. But whichever way the court turns, mass protests and political opportunisms are unlikely to result. There are then, the caste questions: either reservations in the private sector or a mandatory caste census. But these might not come up before court, and if they do, the court might well rely on the Mandal I paradigm. There is also Ayodhya. If the courts finally pronounce on the property “title” of the Babri Masjid/Ram Janma Bhoomi land in the next ten years, there will surely be political repercussions. But is there enough life in the Ayodhya embers? If the damp reaction to the Liberhan Commission Report is any indication, the answer seems no.
More likely is the possibility that the courts will pronounce on the complex triangle that tribal rights-mining-Naxalism is. These unresolved legal issues are spilling over to the socio-political arena. The absence of effective mining regulation corrupts the politics of the tribal belt across Eastern India, not to mention Karnataka. The question of tribal rights also has important repercussions on Naxalism. If the court were to pronounce on this question in some way (it’s difficult to predict the exact jurisprudence), the case may well have a lasting impact on Indian polity.
My own hope though, is for a different kind of defining judgment.
The last couple of years have seen the higher judiciary questioned in unprecedented ways. In the spot light is the opaque judge selection system (the Supreme Court self-selects), archaic exit system (impeachment is so hard, it hasn’t ever been successful) and scary contempt provisions (truth is not a defence). Given the murmurs within the judiciary and public questioning without, our apex court’s defining judgment in the coming decade might well be on itself. It might introspect, acquiesce to a more transparent selection system, and agree to the outside scrutiny of judges. Simultaneously, its energies might turn elsewhere: to its administrative responsibilities to clear a backlog of over 30 million cases throughout the judicial system (though, to be fair, the Supreme Court itself has a backlog of only around 50,000 cases).
There is some irony in the world’s most powerful court presiding over such a lengthy backlog. Perhaps the Supreme Court’s defining action in the coming decade won’t be a landmark case that redefines politics. It will be to redefine its power and reduce its backlog. Now isn’t that some prediction to make?