In a democracy, courts may defy public opinion, but on balance, courts are likely to go with popular sentiment.
Let’s face it. Our constitutional order was defeated in Sabarimala. The Indian state failed, despite trying, to implement a straightforward direction of the Supreme Court.
Let’s not look for easy scapegoats. Yes, the popular protest was orchestrated by Hindutva hardliners, brazenly backed by the BJP. Yes, the Congress played soft Hindutva, not for the first time. And yes, the ruling CPI(M) vacillated in the face of popular sentiment. But it is pointless to pour outrage at their doors. Parties chase public mood and votes. The real question is: Why was the public mood at odds with the constitutional order?
Let’s not kid ourselves: If an “anti-faith” court verdict could not be carried out in Kerala, that too under one of the few surviving Stalinist parties in the world, it cannot hold elsewhere. True, a similar verdict was carried out in the case of Haji Ali dargah despite community sentiment. But would that happen under a ‘secular’ regime? Have we forgotten Shah Bano? Hasn’t the SGPC got away with blatantly illegal actions in the name of Sikh faith?
Let’s not waste our energy moralising about it. Of course, this failure calls for condemnation. You cannot run a constitutional democracy if the orders of the highest court can be defied with impunity. But lament and outrage are no substitute for reflection. More than condemnation, this situation calls for hard thinking: How do we negotiate a clash between constitutional morality and public opinion?
Let’s not sidestep this difficult question by blaming the courts, as Shekhar Gupta does. Yes, judicial overreach is a problem of our system, but not in this instance. If a citizen approaches the courts demanding equal treatment in a public place of worship, the judges cannot plead helplessness. Not under our Constitution that explicitly mentions temple entry. Indian secularism does not follow the French doctrine of strict non-interference. Rajeev Bhargav is right to say that our Constitution provides for “principled distance” that allows and requires principled intervention in matters religious.
Let’s not beat about the bush. The sad and unpleasant truth is that the liberal constitutional order is and has been out of sync with public opinion. The moral sensibility of the judges of the Supreme Court and the liberal commentariat has little connect with the moral sensibility of an ordinary devotee of Lord Ayyappa. Ordinary Indians have high but abstract regard for our Constitution, but when the constitutional principles are spelt out in a concrete context, they are often at odds with it.
Let’s not run from this harsh truth. I learnt it during the demolition of Babri Masjid in 1992. I used to teach at Panjab University, Chandigarh, and live in Dadoomajara, a working-class resettlement colony. When I expressed my moral outrage at the brazen violation of the Supreme Court orders in the Ayodhya case, one of my neighbours asked me, “Professor Saheb, Ramji ka mandir Ayodhya me nahi banega to kya England me banega?”. I learnt my lessons then, but apparently, the liberal, progressive Indians have not.
Let’s have the courage to look into the mirror: There is more than a grain of truth in the stereotype about the deracinated English speaking Indian elite. Liberal Indians speak an alien language, literally. Ask any leading intellectual of India: When was the last time you read a full book or wrote both sides of an A4 size page in any Indian language other than English? More often than not, they are illiterate, if not contemptuous, about our religious traditions. How many educated Indians can tell the difference between the Upanishads and the Puranas? Or between Shariyat and Hadis, for that matter? No wonder, ordinary, believing Indians refuse to take moral lessons from them. They are not immune to criticism and reform but resist it when it comes in an alien and hostile idiom. Latin America has liberation theology that invokes The Bible to argue for revolution. But why do we not have liberals who invoke and understand Maryada Purushottam to draw new ethical boundaries?
Let’s not put too fine a point on it: There is no political constituency for liberalism in India, not even in the heart of the island that is metropolitan India. You cannot solely depend on the courts to sustain a liberal, constitutional order. The brute fact is that in a democracy, courts may occasionally defy public opinion and have their way, but on balance, courts are likely to go with the overall drift of popular sentiment. If the present trend continues, there is a real danger of our republic being undone by the public.
Let’s understand our choices. One option is to go with public opinion wherever it can be made to takes us. That’s a dangerous slope. The only other option is to enter into a conversation with the public so as to change public opinion. This cannot be a monologue. We must be willing to learn a new language, experience a new sensibility, and respect other forms of knowledge. This is Gandhi’s path, the path of a critical insider. Unless we want to explore the third option: To elect a new people!
Let’s make our choice. Now.
Yogendra Yadav is National President of Swaraj India.