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False Promises? The Sabarimala Judgement And The Society It Left Behind

Social backlash cannot invalidate law but it can raise doubts as to whether law can in and of itself heal social divides.

On 28th September, 2018, the Supreme Court held that the exclusion of women aged 10- 50 years from entering the Sabarimala Temple was unconstitutional. The judgment was immediately applauded for being progressive and enlightened.  But when the temple doors reopened a few weeks later, devotees prevented any women roughly in that age group from making their way to the temple. The actions of the devotees were brazen and violent, with reported incidents of harassment and clashes with law enforcement. The photographs of activists and journalists being escorted to the temple by a team of police officers, helmets et al., are eerily reminiscent of the famous photograph of US Marshals accompanying a tiny African-American girl to elementary school after the United States Supreme Court desegregated schools in Brown v. Board of Education I.

Photographs — whether of Ms. Rehana Fathima on her pilgrimage or of young Ruby Bridges going to school in 1960 — document, more powerfully than anything else, the ugliness and instability when a deeply divided society conflicts with, not just itself, but the law.

Consider this: once the judges have deliberated on overlapping rights, made certain value judgments and passed a verdict, we witness social backlash. As citizens invested in the process of law-making, how do we process these events and their significance?

For example, if the community, for whom the law is ostensibly made is seen to ‘reject’ it by way of protest or non-cooperation, does it become ‘bad’ law in some way? No. It is hard to argue that a society stitched together on the principle of rule of law, could obligate a validly made new law to pass the test of social validation before becoming enforceable.

When we consider the effect that law has on society after it is made, we are actually looking at the interactive and symbiotic relationship that law shares with the contemporaneous values and mores of the society it governs, and the law’s capability to be a tool for ‘social engineering’.

Pinarayi Vijayan
Representational Image (PC: WC/Anjana Menon)

Jurists belonging to the sociological school of law disapproved of the dispensation of ‘heartless justice’ where the effect of law on society was ignored.  Roscoe Pound wrote in An Introduction to the Philosophy of Law that: “I am content to think of law as a social institution to satisfy social wants- the claims and demands and expectations involved in the existence of civilised society- by giving effect to as much as we may with least sacrifice, so far as such wants may be satisfied or such claims given effect by an ordering of human conduct through politically organized society.” Justice Benjamin Cardozo characterized law as “an historical growth, for it is an expression of customary morality which develops silently and unconsciously from one age to another.”

So to the sociological jurists, the law expresses customary morality and satisfies social wants. What if a society is not homogenous and its wants are at variance with another? The law then steps in to reconcile those conflicts. Its role becomes more complex — to harmonize those wants with minimal social friction.

Sociological jurists believe that significant weight must be given to public mores and social facts in constitutional adjudication, so that the law is neither heartless nor abrasive. In The Nature of the Judicial Progress, Cardozo argued that judicial decision-making involves value judgements. When choosing which course to follow, judges should employ objective sociological methods to determine the values and mores in society. Judges should not foist their subjective morality on the society. And why must this be done? In order to minimise the conflict between the law and society.  The sociological methods include: relying on social science study (as pioneered in the “Brandeis Brief”), looking at comparable statutes evidencing value choices and identifying social value choices from prior decisions. In fact, the Court in Brown v. Board of Education I relied extensively on social facts, empirical studies and social sciences theories (this reliance unfortunately became a principle point of critique of the judgment and doubts were cast as to its usefulness as a precedent).

Now, we come to a slightly nuanced situation. Society is not homogenous, and the wants of the dominant groups whose voices are powerful in establishing public mores clash with the desires of other social groups. And, as Justice Chandrachud observes in his concurring opinion, this is one of the primary conflicts for which the Constitution of India was created to address. Gautam Bhatia writes in his comment on the Sabarimala judgment that “Sabarimala, therefore, is a classic example of what Madhavi Sundar calls “cultural dissent”: norms and values defined and imposed by cultural gatekeepers and dominant groups, have been challenged.” Ms. Sundar argues that cultural dissent challenges the notions of culture itself. And it seems that for Indians, the Constitution is the vehicle for such dissent.

Justice Chandrachud strongly asserts that the role of the Supreme Court is to interpret constitutional morality and bring about social transformation. In fact, constitutional morality is divorced from societal morality. And in transforming Indian society, we can ‘search for answers to the binaries which have polarised our society’. From Justice Chandrachud’s judgment, one gets the feeling that society can be projected forward like a rocket by the Supreme Court. And this isn’t incorrect: certain sociological jurists found that the binding force of law made it the greatest instrument for social progress. Even if it is made divorced from societal positions, it becomes the new norm because it can be enforced. At worst, it gives everything else a run for its money.

However, in the enthusiasm to bring radical social transformation, one must not forget that the sociological school also integrally believed that law has to harmonize interests and eliminate social friction. If this duty is ignored when we charter this path of accelerated and jerky change –  and society is simply left to catch up – the role law plays in society is dichotomized. Its role as an instrument of social progress becomes separate from its role in minimizing friction between different social groups and harmonize social life.

In a scenario where law making does not try to minimize social friction, do the social values newly adopted by law become ‘false promises’ of sorts? Justice Clarence Thomas of the United States had criticized attempts at social engineering in race segregation and affirmative action cases on this ground – social engineering offered false promises than real solution; while ‘cloaked in good intentions’, ‘racial tinkering’ harmed those it meant to hurt. Of course, the context of Justice Thomas’s criticisms were very different.  But perhaps this brings us closer to understanding the significance of these protests in society, after the passing of the judgment. Although social backlash cannot invalidate law (as discussed above), it can raise doubts as to whether law can in and of itself heal social divides. Perhaps there lies a false promise.

The author is an advocate practicing in the Supreme Court of India.

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