Supreme Court imprimatur paves way for smooth sailing of laws and disarms resistance
A few days ago, BJP member of Parliament Nishikant Dubey launched a scathing and intemperate attack against the Supreme Court of India, accusing it of being responsible for the communal tensions following the recent enactment of the new Waqf law by Parliament. However, his criticism overlooks the crucial role the judiciary plays in a functioning democracy. Judicial review of legislation is not only the bedrock of any democratic setup but also serves as a reassurance to minorities and those feeling persecuted by the majority.
Far from being resented, judicial review should be embraced by the ruling government. In fact, involving the apex court in the legal vetting process can be a strategic way to build confidence among the people, particularly minority communities. This was evident in the landmark Ram Mandir case. The contentious issue of the Babri Masjid demolition in 1992, which sparked deep resentment among muslims, was finally laid to rest when the supreme court, in 2019, ruled in favour of the hindu claim that the disputed site was indeed the birthplace of Lord Ram. It is noteworthy that the BJP government avoided legislating on the matter and instead allowed the judiciary to settle the dispute, lending the decision greater acceptance and reducing the potential for backlash.
Similarly, the banning of the controversial practice of triple talaq in 2019, which was often used arbitrarily against muslim women, faced stiff opposition from sections of the muslim community. Though many Islamic countries had already outlawed this regressive practice, in India, it was perceived by some as an intrusion into personal laws. However, the Supreme Court’s earlier judgment declaring triple talaq unconstitutional helped deflate much of the resistance, highlighting once again the public’s greater trust in the judiciary’s impartiality over parliamentary enactments.
This pattern was also seen in the repeal of article 370, which granted special status to Jammu and Kashmir. Though the Modi government successfully navigated the repeal through Parliament, the Supreme Court’s subsequent endorsement of the decision was crucial in cementing its legitimacy. The return of peace, tourism, and investment to the region bore testimony to the impact of judicial imprimatur, even though the recent terror attack in Pahalgam underscores the fragile nature of these gains.
Against this backdrop, the government would do well to seek the Supreme Court’s endorsement of the new Waqf law by demonstrating that it pertains strictly to property matters and not religious faith. Once the highest court is convinced, broader societal acceptance, including from the Muslim community, is likely to follow.
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Historically, both the Indian public and the framers of the constitution have placed great faith in the Supreme Court’s wisdom. Article 142 of the Constitution, for example, empowers the court with extraordinary powers to do complete justice, even if it means circumventing existing laws. While such powers have led to landmark decisions like the introduction of CNG buses in delhi via public interest litigations, they have also drawn criticism. Vice President Jagdeep Dhankar, himself a legal luminary, has expressed concerns that these powers amount to judicial encroachment into legislative and executive domains.
Indeed, not everything is flawless within the judiciary. Long delays in judgments, cases that languish after the retirement of judges, and the judiciary’s controversial interpretation of the ‘consultation’ process in judicial appointments have raised concerns. The existing collegium system, where judges appoint themselves, is seen by many as lacking transparency, particularly when compared to the US model where Supreme Court judges are confirmed by the Senate after public hearings.
Nevertheless, despite these imperfections, the Supreme Court remains a beacon of public trust and fairness. Involving it in contentious legislation remains the most effective way for any government to mitigate resistance and foster societal harmony.
