Editorial 1: For judiciary, the red lines are bright and clear
Context:
- Over the last few years, issues relating to tradition, culture and society have often landed before the constitutional courts of the country in the form of public interest litigation with the expectation that courts will perform the role of societal arbiters when society or the legislature or the executive fail to do so.
- Notwithstanding such expectations from public interest litigants and “civil society groups” (which often drive such litigation directly or indirectly), constitutional courts must pause and ponder as to whether the role of societal arbiters falls within the ambit of their constitutional mandate or not.
Separation of Power among three organs of government:
- One of the most elementary and fundamental sequiturs of subscribing to constitutional morality is that every statist organ is expected to ask itself whether it has the authority/jurisdiction to discharge a particular role, no matter how noble the ostensible ends may be.
- Such an expectation to preserve the sanctity of the doctrine of separation of powers and its sound democratic and republican undergirding.
- Even it upholds the basic structure of the Constitution according to the Supreme Court itself, is meant to preserve the respective turfs of the legislature, executive and judiciary.
Power of judicial review must not be interpreted as judicial supervision or superintendence over the legislature or executive.
- Although the judiciary has the power of review over the other two organs, such power too has limitations which must respect the institutional independence and competence of such organs.
- Critically, the power of judicial review must not be interpreted as judicial supervision or superintendence over the legislature or executive.
- This position is especially applicable in matters of policy where domain expertise is called for, and in matters of societal experimentation where the festival of democracy must play itself out through the process of interaction and consultation between the electorate and the elected
- As, the doctrine of separation of powers is not meant merely to massage the territoriality of institutional egos, but to truly facilitate participative democracy in letter and spirit by not usurping the right of the public, rather the majority, to give effect to its will through the legislature
- After all, society has the constitutionally guaranteed right to go through the process of trial and error through the instrumentality of the legislature.
- This is precisely why matters of reform are constitutionally reserved for the “State” as defined in Article 12, which includes only the legislature and the executive but not the judiciary. Only the State has the mandate to determine the need for, the timing and extent of reform.
- As, the power of judicial review is not meant to be wielded in such a way that judicial wisdom replaces the will of the majority by infantilising it since the Constitution does not envisage replacing democracy with judicial paternalism.
- On the contrary, the Constitution recognises that sometimes a good policy decision may be unconstitutional, and an otherwise bad policy decision may be constitutional.
- in such instance of unconstitutionality warrants the intervention of the judiciary as the watchdog of the Constitution, if sought by the aggrieved parties.
Role of Article 142 of Indian constitution:
- There do exist greys where both the legislature and executive may feign policy paralysis for want of interest or incentive or to protect vested interests, thereby forcing the affected parties to seek judicial succour.
- For instance, if there is absolute legal vacuum on a given topic, the Supreme Court may sparingly and cautiously invoke its extraordinary powers under Article 142 to fashion a stop-gap arrangement to address an exigency until the legislature brings in a law on the subject.
- An example of this is the Vishakha guidelines issued by the Supreme Court on sexual harassment in 1997 until the enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013.
- In certain cases, where the language of the law has enough latitude to enable courts to address contemporary realities, they can certainly resort to creative and logical interpretation to provide a remedy.
- In all other instances where there exists a law based on a valid social premise, the judiciary cannot bring it within the ambit of judicial review at the instance of aggrieved parties merely because the judiciary or some members of the judiciary disagree with the premise underlying the law.
- Therefore, State interest can be questioned on grounds of arbitrariness or unfairness or express constitutional violation, but not on grounds of judicial disagreement with the legislative or executive position.
Upholding the principle of constitutional Morality (Conclusion)
- Constitution permits the judiciary to perform an advisory role in very limited circumstances and that too only when sought for.
- These bright red lines drawn by the Constitution cannot be breached by any constitutional Court because it would interfere with the course of democracy.
- It must be understood that courts do not exist to facilitate circumvention of the legislative process at the behest or instance of special interest groups.
- In a democracy, those who wish to convince the legislature of their position must put faith in engaging with societal and legislative stakeholders to put across their point of view with the hope of securing greater support.
- While this process is indeed time consuming, it is the essence of democracy and does justice to the oft-cited mantra of constitutional morality.
Editorial 2: Remembering the Vaikom satyagraha
Historical Context:
- On March 30, 1924, in the temple town of Vaikom in the princely state of Travancore, a non-violent agitation started, marking the beginning of “temple entry movements” across the country.
- At the time, caste discrimination and untouchability was rife across India, with some of the most rigid and dehumanising norms documented in Travancore. There was caste-based discrimination on communities like the Ezhavas and Pulayas. These included a prohibition, not just on temple entry, but even on walking on the roads surrounding temples.
- The Vaikom Satyagraha was launched in opposition to this. Amidst rising nationalist sentiment and agitations across the country, it foregrounded social reform. Not only that, for the first time, it brought Gandhian methods of nonviolent protest to Travancore.
The social context of Travancore at the dawn of the 20th century
- The princely state of Travancore had a “feudal, militaristic, and ruthless system of custom-ridden government,”
- While the caste system was not unique to Travancore, some of the most rigid, refined and ruthless social norms and customs were seen in Travancore.
- In the second half of the 19th century, a number of social and political developments would usher in social change much faster than ever before.
- First, Christian missionaries, supported by the East India Company, had expanded their reach and many lower castes converted to Christianity to escape the clutches of an oppressive system that continued to bind them.
- Second, with pressure from the British Resident as well as the accession to the throne of well-educated and somewhat westernised Maharaja Ayilyam Thirunal, many progressive reforms took place. Most important of these was the introduction of a modern education system with free primary education for all – even lower castes.
- Lastly, forces of capitalism and these reforms created new social hierarchies – which were not always congruent with traditional ones. By the dawn of the 20th century, “there had begun to emerge among caste-Hindus,Christians and even avarna Hindus, especially Ezhavas, a significant educated elite,”.
- While religion and custom continued to be pervasive, and was even reinforced in various instances, the absolute material and intellectual deprivations of lower castes did not continue.
The lead up to the Vaikom Satyagraha
- The issue of temple entry was first raised by Ezhava leader TK Madhavan in a 1917 editorial in his paper Deshabhimani. Inspired by the success of Gandhi’s Non-Cooperation Movement, by 1920, he began to advocate for more direct methods.
- That year, he himself went beyond the restrictive notice boards on a road near the Vaikom temple in north Travancore to make a point.
- But it was not easy. The 1920s saw upper-caste counter-agitations across Travancore – and the Maharaja refused to institute reforms, fearing backlash from caste Hindus.
The Vaikom satyagraha
- Early morning on March 30, 1924, “a Nair, an Ezhava and a Pulaya, dressed in Khaddar uniforms and garlanded, and followed by a crowd of thousands, attempted to use the roads”, Robin Jeffrey wrote.
- They were stopped by the police and arrested, with the crowd dispersed. But this whole drama repeated itself again and again – every morning, three men of different castes would enter the ‘forbidden roads’ and court arrest – until the police stopped making arrests on April 10, barricading the whole area instead.
- .In August, 1924, the Maharaja of Travancore died, following which, the young Maharani Regent, Queen Sethulakshmi Bai, released all prisoners. But when a large group of protesters marched to the royal palace in Trivandrum, she refused to allow all castes access to temples.
- In March 1925, Gandhi began his tour of Travancore and was able to iron out a compromise: three out of the four roads surrounding the temples were opened up for everyone but the fourth, eastern road, was kept reserved for caste hindu.
- This was finally implemented in November 1925, when the government completed diversionary roads that could be used by the low castes without polluting the temple. On November 23, 1925, the last satyagrahi was recalled from Vaikom.
The legacy and the aftermath
- That such a strong and colourful movement continued for over 600 days, non-stop, through social pressure, police crackdowns and even natural disaster – in 1924, Vaikom witnessed one of the largest floods in its recorded history – in and of itself, is admirable. Furthermore, the Vaikom satyagraha saw previously unseen unity across caste lines, which was crucial for this continued mobilisation.
- Yet, the end to the satyagraha was unspectacular, resulting in a compromise which many could not digest. It would lead to a rift within the Congress with Periyar famously falling out with Gandhi over the issue. While Gandhi, as always, was keen on a good compromise, for Periyar, the struggle had to be much more radical.
- Historian MR Manmathan argues that through the Vaikom Satyagraha, “the (upper caste) leadership of the Congress was able to coerce the caste-Hindus to compromise on the question of temple-entry as the only viable means to ward off religious conversion which challenged the very survival of the Hindu community”.
- In November 1936, almost a decade after the conclusion of the Satyagraha, the historic Temple Entry Proclamation was signed by the Maharaja of Travancore which removed the age-old ban on the entry of marginalised castes into the temples of Travancore. Even looking at the Vaikom satyagraha with a critical lens, this eventual outcome can be seen as a major success.
- While previously the British may have intervened in favour of more liberal policies to avoid social unrest, at the time, they were too caught up dealing with the Non-Cooperation Movement. However, the lower castes found a new ally.
- Till 1917, the Indian National Congress refused to take up social reform, “lest the growing political unity of Indians against the British got disrupted”, But with the rise of MK Gandhi and increased activism within lower caste communities and untouchables, social reform soon found itself front and centre of Congress’s and Gandhi’s politics.
- When Gandhi came to south India in 1921, Madhavan managed to arrange a meeting with him and secured his support for a mass agitation to enter temples. Due to various reasons, it would take two more years before any concrete progress was made in the matter.
- In the 1923 Kakinada session of the INC, a resolution was passed by the Kerala Provincial Congress Committee to take up anti-untouchability as a key issue. This was followed by a massive public messaging campaign and a movement to open Hindu temples and all public roads to avarnas.
- Vaikom, a small town with a revered Shiva temple, was chosen as the location for the first satyagraha. Notably, to widen the appeal of the movement, leaders including Madhavan, chose not to emphasise on the issue of temple re-entry to begin with. Rather, the movement focussed on opening up the four roads around the temple to avarnas.