Judiciary Institutional Issues

[op-ed snap] The narrow and the transformativeop-ed snapPriority 1SC Judgements


Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From UPSC perspective, the following things are important:

Prelims level: Philosophy behind the working of Judiciary

Mains level: Judicial adjudication in certain cases can create the fear of alienation and leaves all possibility to trigger a cultural war. However the role played by Indian Judiciary is revolutionary , a golden mean of narrow and transformative approaches.


Hearing most crucial cases

  1. Certain cases have placed the apex court at the heart of the culture wars.
  2. The Aadhaar challenge was argued on the relatively straightforward basis of when and to what extent the state can exercise its coercive power over individuals.
  3. The 377 and Sabarimala hearings have seen clashes between the invocation of personal rights and the claims of cultural and religious groups.
  4. This is set to continue with the forthcoming adultery hearings, where the state’s objection to the decriminalisation of adultery is premised on the argument that it would destroy the institution of marriage.

The strategy of containment

  1. Whenever a constitutional challenge brings individuals against the state, the court’s task is to find if there has been a breach by the state, and it must strike down the offending law (or rules), and vindicate the rights at issue.
  2. This is because these conflicts often represent deep, long-standing and irreconcilable divisions in society, touching issues of personal belief and conviction.
  3. This strategy of containment creates a situation where, for the most part these conflicts remain submerged.
  4. The fear of permanent defeat prompts all parties to maintain a tense equilibrium. One method of resolution is through the courts.
  5. Unlike in political or economic disputes, a decisive loss in personal belief risks creating deeply embittered and alienated communities, and risks an erosion of faith in the neutrality and impartiality of state institutions.
  6. Ex: Constitution framers consciously refrained from directly addressing them: for example, the framers of the Constitution deliberately placed the provision for a uniform civil code in the unenforceable DPSP chapter, thinking that it was too divisive to be made a FR.

The narrow approach

  1. To avoid overreach, there is a popular school of thought that asks the court to tread with particular caution when questions of culture are at stake.
  2. As far as possible the court should avoid hearing and deciding such questions altogether. If it is must to decide, then it should do so on the narrowest grounds possible.
  3. The role of the court, in short, is to do everything it can to lower the stakes, and take a pragmatic, problem-solving approach to the conflict rather than an ideal-oriented, expansive one.
  4. In the Section 377 hearings, the government stated that it would not oppose the “reading down” of Section 377 as long as it was confined to same-sex relations between consenting adults in private.
  5. During oral arguments, every time the petitioners pressed for something more, government counsel urged the court to limit itself to simple decriminalisation, and nothing more.

The transformative approach

  1. The philosophy of Constitutional Adjudication holds that the Constitution is a transformative document, whose goal is to erase and remedy long-standing legacies of injustice.
  2. A particular feature of these injustices is their deep-rooted, social and institutional character. In the Indian context, the most obvious example is that of caste.
  3. The ill influence of caste-discrimination in our society not only prompted the inclusion of a specific article in the Constitution abolishing untouchability (Article 17), but it gave rise to a constitutional vision of equality that specifically included affirmative action.
  4. Consequently, the narrow approach sees a culture war triggered by the disruption of a carefully-maintained accommodation of cultural difference.
  5. The transformative approach sees a long-suppressed protest against a system of hierarchy and subordination that has found its utterance in the language of constitutional rights.
  6. Ex: In the 377 hearings, it was argued that decades of social exclusion and ostracism of the LGBT community could not be remedied simply by “decriminalisation”.
  7. Rather, it would require the court that no institution, public or private, would be permitted to discriminate on grounds of sexual orientation, or deny any person their civil rights.

Way Forward

  1. In section 377 case, SC ruled for equal moral membership of the LGBTQI community.
  2. Similarly, in the Sabarimala case, Court ruled that constitutional morality must prevail over precepts that are rooted in any particular religion.
  3. In these cases, therefore, the court is faced with a stark choice between the narrow and the transformative approaches to navigating the choppy waters of culture and the Constitution.
  4. Which direction it chooses to take, depends upon what it believes the Constitution is for and will have profound consequences in the years to come.
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