That old picture, of justice being represented by a blind-folded lady holding a pair of scales, can quietly be put in the museum. Today, woke justice means decidedly giving up on the idea of justice based on equality before the law. It is now about doling it out to whoever is considered more worthy of it socially or economically — and based on scales set to each judge’s predilections.
A case in point is Justice D Y Chandrachud, widely seen as a 'liberal' judge with his heart in the right place. A member of the collegium, Justice Chandrachud will be chief justice of India for two years from November 2022, if things go according to the normal pattern of seniority. One should worry.
In a speech yesterday (13 July) at an Indo-US conference on legal ties, Justice Chandrachud, while correctly talking about the need to avoid using terror laws to stifle dissent, made unwarranted remarks about how he sees justice being delivered. The Supreme Court, he said, should play the role of a “counter-majoritarian institution”, and it was its duty to protect socio-economic minorities.
This argument is seriously flawed for two reasons.
One, the term majoritarian is not relevant to the Indian context, where Hindus are not organised under one church or agreed on one set of fundamental laws.
There is nothing majoritarian about Hinduism, which is a ground-up set of ideas that grew autonomously on this soil. You can be Hindu without having to subscribe to any set of 'fundamentals' or believing in one prophet or one son of God. You can even junk the idea of god.
Hinduism has elements that we can call religion, but it is not a religion as defined by Abrahamic standards. So, one wonders where Justice Chandrachud got his idea that the Supreme Court needs to stand against majoritarianism in the Indian context.
Two, and more objectionable, is the suggestion that the court must tilt in one direction, in favour of 'socio-economic minorities'. This is no different from Manmohan Singh saying that the first right on state resources must be the minorities.
In theory, one need not object to helping those who are in minority and unable to defend their interests, but underlying this is the assumption that if you are not a 'socio-economic minority', your claims to justice are secondary to the primary focus of the highest court.
If this is not about tilting the balance against people designated a non-minority, what is? Is this why the Supreme Court almost never gets into issues related to equal rights, especially if the community demanding it is deemed a 'majority'?
Justice Chandrachud may be the doyen of India’s Lutyens media and Left-liberals, but it seems that he is planning to introduce his own ideas of what constitutes justice, using his own lenses, and those of legal luminaries in the Christian West.
Earlier this year, in a case involving giving women permanent commissions in the army, Justice Chandrachud rightly said that women and men cannot be judged by the same set of seemingly objective criteria. But instead of merely acknowledging that women and men are built differently and hence 'inclusion' should mean using different criteria for women (as happens in sports, etc), Justice Chandrachud chose to rely on arguments in a British case.
In 2009, Baroness Hale of the United Kingdom Supreme Court held that “Direct and indirect discrimination are mutually exclusive. You cannot have both at once. The main difference is the direct discrimination cannot be justified. Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.”
Did Justice Chandrachud need a UK judgement to bolster his case for giving women equal rights to obtain a permanent commission in the army by choosing criteria that is relevant to them?
Why use some obscure judgement from our colonial masters to justify a simple issue of deciding on inclusion without using such intellectually empty arguments? Can courts really act against all forms of indirect discrimination when most humans are not born equal and have different abilities?
The idea of inclusion does not need support from the idea of 'indirect discrimination' to work. Now, everybody can claim indirect discrimination based on unequal outcomes resulting from any set of standards.
Justice Chandrachud was also involved in overturning the Sabarimala temple’s rule that expects women in the reproductive ages to stay out till they turn 50. Swami Ayyappa is worshipped as a Naisthika Brahmachari, a celibate in this unique temple. Instead, Justice Chandrachud brought in the concept of 'untouchability' to rule that the temple’s practices were discriminatory.
The issue in Sabarimala was never about untouchability, for it bars only women in a specific age group. Not all Swami Ayyappa temples have this norm, and this unique temple did not deserve the judiciary’s prejudicial use of the term 'untouchability' to let women of all ages enter the shrine.
The problem with such woke liberalism is that it is writing its own death sentence. Liberalism was good as long as its purpose was to protect the individual against the vagaries of older institutions like the family, tribe, religion, race, etc.
But now that this objective has largely been achieved, liberalism is likely to lose traction as it has turned the individual into an enemy of the society at large.
The balance between individual rights and collective community interests, where rights are balanced with responsibilities to the larger society we are part of, is making the state larger and larger than ever at the cost of community.
In the name of protecting individual human rights, liberalism has dug its own grave by destroying the community on which the individual depends for making social life meaningful. Man is a social animal, and his individuality has to have some respect for the larger interests of society. And vice versa.
I could have said that liberalism has lit its own funeral pyre and not dug its grave, but this virulent form of liberalism that Justice Chandrachud seems to represent is a purely Western Abrahamic import. Yes, it has dug its own grave.
Jagannathan is Editorial Director, Swarajya. He tweets at @TheJaggi.
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