A counter-majoritarian judiciary is a feature of all healthy liberal democracies. But until lawyers and courts revive and strengthen constitutionalism and interpretive pluralism, we may find ourselves slipping deeper and deeper towards a WhatsApp judiciary.
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IN August 2023, while pronouncing a judgment, an Allahabad High Court judge made certain comments that aroused public attention.
The court warned of a “systematic design to destroy the institution of marriage” in order to destabilise Indian society and hinder national progress. It noted the contributions of the usual culprits (films and television serials) to this phenomenon.
It continued with its diagnosis of the issue— an increase in live-in relationships and the consequent decline of the institution of marriage has led to the inevitable destruction of “a stable and healthy society”.
Middle-class judiciary?
The cure? “Middle-class morality.”
The court spent considerable time bemoaning Indian society’s drift away from middle-class morality. In the court’s opinion, the country’s “middle class” and its “middle-class morality” are a breakwater against social, political, religious, ethical and other types of unrest. It cited Pakistan (in a rare display of empirical reasoning) as an example of a nation lacking the stabilising effect of this middle-class morality.
The court warned of a “systematic design to destroy the institution of marriage” in order to destabilise Indian society and hinder national progress. It noted the contributions of the usual culprits (films and television serials) to this phenomenon.
Within a week, a judge of the Kerala High Court followed suit in delivering similar words of wisdom, warning parents in India of the dangers of gifting mobile phones to children instead of encouraging the time-honoured traditions of “delicious food made by the mother and a cake-cutting ceremony on birthdays”.
The court emphasised the alternative— supervised screen time and exercise as necessities for “a healthy young generation who are to become the beacons of hope of our nation in the future”.
Curiously, the judgment ended with this bit of child-rearing advice: “Instead of purchasing food from restaurants through Swiggy and Zomato, let the children taste the delicious food made by their mother and let the children play at playgrounds at that time and come back home to the mesmerising smell of mother’s food.”
Sanatana Dharma as a legal rationale
Within ten days of the Kerala High Court’s decision, a judge of the Madras High Court “could not help pondering over” Sanatana Dharma (eternal religion), a cause célèbre in recent weeks.
In its judgment, the court boldly answers the question never asked of it by volunteering a definition for Sanatana Dharma as a set of “eternal duties” traceable to Hinduism, including “the duty to the nation, duty to the king, king’s duty to his people, duty to one’s parents and gurus, care for the poor, and whole lot of other duties.”
The court was called upon to decide the legality of a notification issued by the principal of an arts college calling for a debate on the topic ‘Opposition to Sanatana Dharma’.
The court hypothesised that the effect of a debate on such broadly accepted ethical norms would mean the destruction of all duties outlined in the definition provided. The court rhetorically asked with genuine concern, “Should not a citizen love his country? Is he not under a duty to serve his nation? Should not the parents be cared for?”
In September 2023, the Punjab and Haryana High Court judge dismissed a petition by an unmarried couple seeking police protection from harassment by the woman’s estranged husband. The petition was dismissed on the grounds that the woman was already married, with the judge calling the relationship of the couple seeking police protection “promiscuous” and “illicit”.
The role of the judiciary
Following the examples above, I would like to pause here to ask a few questions of my own. Can a judge, in whatever case, no matter how enlightened, tell us the “optimum means of fair survival” of Indian society as the judge of the Allahabad High Court did?
The court emphasised the alternative— supervised screen time and exercise as necessities for “a healthy young generation who are to become the beacons of hope of our nation in the future”.
Does our understanding of a judicial function permit the judiciary to create these notions of an ideal citizen or childhood? Does the judiciary possess superhuman wisdom in all matters, or do we call upon it to decide on what the law provides? Does a judiciary bound by a secular Constitution think duties to one’s country, parents or children are impossible without adherence to a religious way of life?
Moralising and anti-pluralistic language from the Bench is not uncommon, especially of late, and the utterances listed above abound. The observations were rather clumsily made in real world disputes that ordinarily should not permit it.
Indeed, our judiciary has neither the competence nor constitutional authority to make such sweeping judgments under any circumstances. In its infinite wisdom, however, our constitutional courts tend only to deliver lectures in the adjudication of disputes that provide a convenient starting point for debate.
In a somewhat less humorous but concerning instance of judicial adventurism, the Delhi High Court took its own turn at reviving the spectre of vulgarity and foul language on the television (something that would be considered a quaint and dated moral panic in most parts of the world in the year 2023).
In March this year, the high court was deciding on a petition by the makers of the web series College Romance which sought the quashing of a first information report (FIR) under provisions criminalising the circulation of obscene material.
The court, inevitably, upheld the FIR and dismissed the petition. It held that the web series did not pass the community standards test through legal reasoning convoluted enough to warrant its own study and dissection.
In paragraph 54, the court noted, “[T]he good old Hindi or any other Indian language does not need liberation from their goodness, and the civil society does not need liberation from civility and pride in speaking expletive free languages and mother tongues.”
It went on in paragraph 67, pontificating about how the youth of this country are its most valuable asset who carry “on [their] able shoulders the responsibility of maintaining the magnificence of the valuable culture including the linguistic pride of this country.”
Of course, such a judgment would be incomplete if it had not smugly noted that Indian courts are an “inheritance of an ancient magnificent justice system”.
It did not stop there— it went on to direct the Union government to enhance enforcement efforts and also frame new laws and guidelines regulating online speech in light of the concerns outlined by the court in its judgment. I leave it to the reader to determine the legality or desirability of such a ruling.
The petition then came up for a hearing six more times before being disposed of. It ultimately required the Union government to take on an unfamiliar role as a defender of freedom of speech and to clarify that such matters were in the realm of government policy.
Ironically, the same judge in a September 2023 decision addressed issues of “legality, morality, justice and the courts” in another petition. In that decision, the court noted that judges as individuals may have different notions of morality which cannot be imposed on any party.
An emerging ‘jurisprudence’
To anyone who has gotten this far, a few characteristic themes of this unique jurisprudence emerge— anti-pluralism; the caricaturisation of economics, sociology, political science, and history; nationalism; elevation of abstract concepts such as the growth of the country; romanticisation of the past and civilisational history; claims to represent the authentic and ancient modes of life and thought in India; the dangers of modernity and liberalism.
In paragraph 54, the court noted, “[T]he good old Hindi or any other Indian language does not need liberation from their goodness, and the civil society does not need liberation from civility and pride in speaking expletive free languages and mother tongues.”
All of this is expressed in a familiar tone of concern for the country. If anyone wished to be treated to a radioactive dose of WhatsApp aphorisms and shallow thinking, need not they only look to family group chats instead of engaging in the tedious business of litigation?
Concerns about the independence and politicisation of the Indian judiciary are frequently expressed. In a recent speech titled Theocratic Judges Who Find Source of Law In Religion Than Constitution Increased, Professor Mohan Gopal, the former Director of the National Judicial Academy of the Supreme Court of India from 2006 and 2011, warned of a concerted effort to establish a religious State through constitutional interpretation.
He suggested that in the past ten years, there has been an increase in the number of judges (nine appointed during the National Democratic Alliance government and none from the previous dispensation) who have found sources of law outside the Constitution of India, such as Sanatana Dharma, the Vedas, and “Ancient Indian Legal Principles” (in other words, theology) as the basis for their decisions— one of the opinions in the Karnataka Hijab Ban Case being the most prominent.
Also read: We require Indianisation to enrich Indian Constitutionalism – The Leaflet
Less has been said about why courts have increasingly accommodated the politics of your local resident welfare association (RWA) uncle. Is this pathology merely an annoying difference in the cultural affectations of judges? Or does it actually affect judicial legitimacy and prestige?
I would argue that it does, and that it is best understood as a form of anti-intellectual judicial populism. In which case, how does one explain its recurrence in the judicial lexicon? While the precise route may be hard to trace, the following are plausible explanations.
The first is the political trends of the past decade and the rise of populism in electoral politics. Anti-intellectualism as a phenomenon is correlated with political movements. The past decade has witnessed a shrinking space for critical inquiry at the bar. This has mirrored national political changes, in which the self-described anti-elitist ruling party at the Centre has broadcast its contempt for experts in virtually all fields, especially history.
The pathology of anti-intellectual populism at the Bench is the natural endpoint of an opaque appointment process from among members of a Bar who hold strikingly uniform attitudes and lack any diversity, be it in terms of gender, caste or religion.
Somewhat connected to this is the adjudication of public issues, which is an ideological act, as K. Balagopal, a renowned civil rights activist and pleader of unpopular causes, said it best in his 2009 article.
Judges and courts are embedded within society and its dynamics are not beyond or above the ideological and material contradictions within society.
Some have argued that judges adopt populism in the adjudication process to strengthen their legitimacy in an era when the judiciary has come under significant criticism. This is sometimes called the ‘strategic behaviour hypothesis’.
This seems far fetched; anecdotally, at least, it would seem like judges sincerely believe that their views hold the moral and intellectual high ground. Maybe, on some level, they are playing to the gallery. More importantly, Indian judges may not struggle with legitimacy or feel the urge to track public opinion.
Less has been said about why courts have increasingly accommodated the politics of your local resident welfare association uncle. Is this pathology merely an annoying difference in the cultural affectations of judges? Or does it actually affect judicial legitimacy and prestige?
As has been said of the Indian judiciary, “Once the judiciary speaks, it is consensus that the issue is not only legally settled but socially legitimised and also academically reproduced.”
A variety of other overlapping causes, including the state of the education imparted at our law colleges undoubtedly also share some of this blame.
Conclusion
Should the public care about this? The adoption of this ethos is tied to the legitimacy of the judiciary; as the least democratised part of the State, it relies on public reason. It cannot find legitimacy in a shabby, populistic approach to the law.
Recent trends bring into question the knowledge the judiciary produces. That judges must possess curiosity, open minds, freedom from bias, and an appreciation for the Constitution is very obvious.
How else can we expect them to produce just outcomes in disputes involving religious conflict, casteism and civil liberties (such as criminal law and bail) in the face of a revanchist executive branch?
Also read: Gandhi’s patriotism was a model for practice of true secularism – The Leaflet
Anti-intellectual judicial populism is also visible and dangerous when judges attempt to navigate tricky subjects such as history. A recent example of selective and simplistic history making its way into a judicial opinion (sometimes referred to as ‘law office history’) can be found in the November 2022 EWS judgment of the Supreme Court.
As has been said of the Indian judiciary, “Once the judiciary speaks, it is consensus that the issue is not only legally settled but socially legitimised and also academically reproduced.”
A member of the Bench, considering the constitutionality of the 103rd Constitutional Amendment, found that reservations were intended by Babasaheb Ambedkar to be a temporary ten-year measure.
To support its constitutional interpretation, the court ignored, and thus diminished, important work done by professional legal historians. Anti-intellectual judges may not be biased or political in the colloquially used sense of the term but seek to reverse-engineer legal justifications on the basis of a single point of view. In some instances, they do this by redefining the baseline of societal conduct to their own identity and narrow experiences.
However, the more significant issue is an escalating conflict with the Constitution of India. As a document that was intended by the framers to protect minorities, usher in a social revolution in the country, and rid us of social evils, its commitments are at complete odds with the interpretative tools that judges increasingly employ.
Anti-intellectual judicial populism is also visible and dangerous when judges attempt to navigate tricky subjects such as history.
A counter-majoritarian judiciary is a feature of all healthy liberal democracies. But until lawyers and courts revive and strengthen constitutionalism and interpretive pluralism, the WhatsApp judiciary is here to stay.
