At the outset, one may wonder what Brett Kavanaugh appointment to the U.S. Supreme Court has anything to do with the recent rulings by India’s Supreme Court allowing women between ages of 10 and 50 entries into the Sabarimala temple. It may not have a direct linkage concerning geography or jurisprudence. However, it speaks volume on how the underlying principles involved in these dramas could evoke these spectacles of emotions of raw anger in countries that are separated by Oceans.
As we all have learned throughout the history, elections have its consequences, and President Trump has indeed followed through his pledge of appointing judges to the courts that he termed as ‘strict constructionists.’ The judicial philosophy of the conservatives in this country is that courts should not make laws but to uphold the constitution and laws of the land and interpret them. On the contrary, liberals and progressives love an activist court that creates laws especially in the social arena that may have a transformational impact on the society.
Mark Levin, a conservative author makes a good case for a strict constructionist in his book titled “Liberty and Tyranny’. He has defended the importance of original intent when interpreting or adjudicating the constitution. Levin appeared to have made a genuine effort in illustrating the fine points in the ongoing debate between the strict constructionists and those who want the Constitution to be a “living, breathing evolving” document.
Alexander Hamilton, in Federalist 78, stated that judges have a duty to “guard the Constitution and rights of individuals,” and above all, to be impartial. He was known to have argued that in cases where laws and statutes clash with the Constitution, it is the constitution that must prevail and the Supreme Court has to side with the Constitution.
Liberals and many moderates sincerely believe that the Court’s swing to the right might jeopardize decades of landmark gains on issues from abortion to affirmative action and same-sex marriage. To some legal experts, the addition of Justice Kavanaugh to the Supreme Court could have profound consequences on issues ranging from Women’s reproductive health to LGBT rights.
In today’s high-octane environment, it has become increasingly difficult to reconcile these differing points of view. However, to an independent observer, the Supreme Court relies greatly on precedent that is a principle or rule established in a previous legal case that becomes a basis or reasons for future decisions. Therefore, the Court may yet find it difficult in overturning many of those landmark decisions that have long become the laws of the land.
While the Kavanaugh Saga was unfolding in Washington, the Supreme Court of India has made some historical rulings that may have upended some traditional beliefs and customs. According to a new ruling led by the Chief Justice Dipak Misra, women of all ages will be allowed to enter India’s Sabarimala Temple, one of Hinduism’s holiest sites, overturning a centuries-old ban.
The five-member constitutional bench struck down the religious ban on women aged 10 to 50 from entering the temple, ruling it to be discriminatory and arguing that women should be able to pray at the place of their choice. “It is the constitutional morality that is supreme. Prohibition can’t be regarded as an essential component of religion” said the Judge’s ruling. Sabarimala temple is thought to be 800 years old and is considered spiritual home of Lord Ayyappa.
This issue is very complex and multi-layered, however, touches the very core of faith and tradition. That is the reason why this verdict has invoked so much anger and resentment pitting one community against another often inflaming the communal passion waiting to be exploited by the political parties and their narrow interests. For a democratic country that has Secularism written on its preamble of the constitution, India should accord autonomy to religious orders and religious groupings and prevent state interference. It is a matter of pure faith, and the State has a responsibility to stay neutral unless it violates the fundamental rights or causes injury to its citizenry.
If we carefully examine, a severe crisis was created when the Supreme Court took up this issue, and its subsequent ruling has indeed challenged an age-old tradition. Although it is embarrassing to argue about the merit of this tradition in these modern days, the purity of women in their menstrual years, it was a dormant issue for so long that people paid only scant attention. The question then is should the court give rulings on issues that have profound social implications as well as a transformational impact on society?
In a democratic process, it is the people through their representatives in the Legislature who make laws mostly reflecting the will of the majority. That is often done with debating the merit of the legislation with utmost scrutiny from all opposing sides. If the country has followed such a course, we could have avoided this tragic turn of events unfolding before our eyes today. As much as we value the Supreme Court as a vanguard to protect our rights, it would have been prudent to leave these sensitive issues of faith and tradition to the legislatures rather than to the judiciary.
Many Indian Americans, who abhor several of the progressive decisions of India’s Supreme Court in the last few weeks often overturning their beloved traditions, beliefs, and customs, may need to reconsider their stand on an activist court. They generally cheer on legislating from the bench in the U.S. by activist judges and have long enjoyed common ground with progressive forces opposing the appointment of Judges whose philosophy of judicial restraint that is similar to that of Justice Kavanaugh.
As the adage goes, ‘we cannot have the cake and eat it too’! It is time to take a consistent stand in opposing legislating from the bench that often fails to take into account the sentiment of the local people whose tradition, faith and religious practices they hold dear to their heart and supporting the strict constructionist view of the constitution and laws of the land. We have long learned from history that it is judicious to have limited interventions in these matters by the courts given the inexorable relationship in India between religion and public life.
(Writer is a former Chief Technology Officer of the United Nations)