As we go into 2018, there is little doubt that there is a lot at stake when it comes to issues of fundamental rights, the status of the individual, and the idea of democracy.
On January 2, 2017 – it’s first working day of the year – a narrowly divided Supreme Court delivered its judgment in Abhiram Singh vs C.D. Commachen. A majority of four judges ruled that the Representation of the People Act prohibited any kind of appeal to caste, community, language, and religion during an election campaign. They based their holding on the view that these markers of identity were inherently divisive, and impeded the formation of the universal citizenhood that was so important to democracy. Three judges, however, dissented, noting that electoral politics was a stage where historical discrimination – that had always been identity-based – could be addressed and remedied, and that the only feasible way of doing this was by appealing to identity.
In hindsight, Abhiram Singh was the curtain-raiser for a year when the constitution’s fault-lines – its navigation of the fraught relationships between individual, community, and state – came to the fore. In a number of significant cases, the court had to decide what, precisely, was the position of the individual within the normative universe of the Constitution: was (wo)man the “measure of all things”, or were her claims subject to the claims of powerful centres of authority, such as the state and the community? In Shayara Bano vs Union of India, popularly known as the “triple talaq case”, the court came perilously close to completely submerging individual rights within community claims. Two judges out of five held that personal law systems (inherently unequal and discriminatory towards women) were protected by Article 25(1)’s near-absolute guarantee of the freedom of religion. While the court ultimately struck down the practice of instant triple talaq, the swing opinion – authored by Justice Kurien Joseph – was riven by ambiguity, and its impact on future constitutional cases involving religious claims remains to be seen.
And then, in the middle of the year, came the nine-judge bench’s decision in K.S. Puttaswamy vs Union of India, where the court unanimously held that the constitution protects the fundamental right to privacy. There is little doubt that Puttaswamy will anchor any account of the Supreme Court’s constitutional jurisprudence of 2017. Not only did it affirm the fundamental right to privacy, but in six separate opinions, the judges articulated a concrete vision of the relationship between the individual and the state: a relationship in which the individual rights to dignity, to autonomy, and to liberty, were paramount, and the fundamental value of privacy – whether it was the privacy of the home and other spaces, the privacy of personal information, or the privacy of intimate decision-making – was in how it protected, promoted and fulfilled individual autonomy and dignity.
However, even as the Supreme Court affirmed the primacy of the individual in the privacy judgment, its handling of a concrete case before it raised questions. In the now-infamous Hadiya case, which has still not been resolved, the court require multiple hearings before it delivered a lukewarm affirmation of an adult woman’s choice of marriage partner. Hadiya’s case had become a murky one, with allegations of forced conversion and “hypnosis”, stories of ISIS recruitment, and a court-ordered NIA investigation; but the opinion of Hadiya herself was solicited only after many months and repeated hearings, and her decision was respected only partially by the court. Hadiya’s case shows that whatever the judgment in Puttaswamy might have said, the vindication of individual rights and the primacy of the individual under the constitution will remain a struggle in the times to come.
This assumption is strengthened by numerous court orders that were not as momentous as the ones discussed above, but are problematic nonetheless. Despite multiple hearings, the court has not yet recalled its interim order making the playing of the national anthem mandatory in cinemas; the court also refused to set aside the Bombay high court’s direction that Jolly LLB 2 be vetted by a panel of lawyers before it could be screened; and most recently, in an unreasoned order, it upheld a state-imposed book ban from Karnataka. But what Puttaswamy does (perhaps) show is that the struggle is not always un-winnable.
The court will have further opportunities to deal with these issues as 2018 begins. In the third week of January, it will resume hearing the Goolrokh Gupta case, which involves the question of a Parsi woman’s status upon marrying outside her religion. The court is also scheduled to hear – after a two-and-a-half-year delay – the constitutional challenge to Aadhaar, a case that will place front and centre the relationship between individual and state under the constitution.
While fundamental rights were at the core of the court’s decisions in 2017, it also dealt with two hugely important cases concerning constitutional structure and the idea of democracy. The same day that it delivered judgment in Abhiram Singh, the court also decided Krishna Kumar vs State of Bihar. In Krishna Kumar, the court significantly narrowed the power of the executive to pass ordinances. Not only did it hold that ordinances would be subject to judicial review (albeit to a limited extent), it also held that, subject to a very narrow class of exceptions, acts done through the duration of the ordinance would also lapse if the ordinance lapsed. In doing so, the court set aside two previous decisions that had equated ordinances to “temporary laws”, and had therefore held that acts done during the course of an ordinance would continue to have effect even after the ordinance itself was allowed to lapse. What motivated the court’s judgment was the insight that while ordinances had been a regular tool of governance under the colonial regime, and had indeed been carried over into the Indian constitution, their utility in a democratic society had to be severely curtailed and regulated – ordinances were, at best, a subordinate form of lawmaking, necessitated in emergencies, but under no circumstances could they supplant parliamentary legislation. The impact of this judgment remains to be seen.
And then, towards the end of the year, the court heard another case dealing with constitutional structure: that of NCT of Delhi vs Union of India, which concerned the distribution of powers between the elected Delhi government and the Lieutenant-Governor. The post of the LG, of course, is another colonial holdover, from a time when people were subjects instead of citizens, and territories were to be “administered” instead of governed. The constitution is dotted with such colonial holdovers, and Article 239AA, which laid out Delhi’s legislative and executive arrangements, reflected this tension. The court’s judgment is due when it reopens early next year, and will be a significant indicator of how far it is willing to deepen democracy under the constitution.
It has been a rocky year for the constitution at the Supreme Court, and as we go into 2018, there is little doubt that there is much to play for when it comes to issues of fundamental rights, the status of the individual, constitutional structure, and the idea of democracy. 2018 promises to be as interesting and eventful as 2017.
Disclaimer: The author was formally involved in Puttaswamy case, the National Anthem case, the Jolly LLB 2 case, and the NCT of Delhi vs Union of India case, and is formally involved in the Aadhaar case.
Gautam Bhatia is a Delhi-based lawyer. He reviews books for the Strange Horizons magazine and on his blog.