A slew of progressive judgements by the Supreme Court over a short space of only three weeks in September is being hailed as a likely game changer in a socially conservative country. By Indian standards, particularly in the context of the recent rise of the right wing, these rulings by the nation’s apex law court are undoubtedly liberal. They also highlight the growing role of activists—led by those working on a plethora of what can be called ‘justice and equality issues’—in nudging the direction of public debate.
These judgements, in chronological order, were on: the rights of homosexuals, the remit of the Aadhaar identity scheme, adultery, and the rights of women to enter a temple in the state of Kerala. On 6 September, after a protracted campaign led by gay rights activists, the Supreme Court overturned Section 377 a 157-year-old law that banned sex among adult males. Then came three rulings in three days—swiftly capping the tenure of outgoing Chief Justice Dipak Misra in glory.
On 26 September, the court came out in favour of privacy campaigners to outlaw widespread but legally questionable and entirely arbitrary requirement move by banks and other private and public service providers linking the delivery of their services to whether or not consumers were able to produce their Aadhaar numbers, the 12-digit unique identifier. But the judges declared the scheme—the world’s largest such—to be Constitutional and made Aadhaar mandatory for welfare schemes, thus only partly pleasing campaigners.
On 27 September, judges junked one more Raj-era morality law that criminalized adultery by married men while exonerating women. Ruling the law to be unconstitutional (i.e. adultery is no longer a crime), the bench framed its verdict in the context of women’s rights. “Parameters of fundamental rights should include rights of women,” Misra said. “Individual dignity is important in a sanctified society. The system cannot treat women unequally. Women can’t be asked to think what a society desires.”
Finally, the next day, the court ruled in favour of allowing menstruating-age girls and women to enter the ancient temple of Sabarimala in Kerala—they had been banned by temple authorities on the grounds that they could disturb the meditating deity Ayyappan.
These rulings are nothing short of path-breaking and radical in Indian society, which remains strongly wedded to patriarchal, caste-based and religious values. The smallest departure from the norm—whether in diet, appearance, the clothes worn by women or even choice of profession—can be met with disapproval, and sometimes with violence.
Uniquely, all of the judgements highlight the role played by activists who campaign for social change from the prism of a variety of liberal and progressive causes demanding justice and equality. Few governments have lent anything like support to such activists, who are usually formed as non-government organizations. For instance, although thought to be an advocate of socially liberal policies, the previous administration led by the Congress party cracked down on anti-nuclear activists in Tamil Nadu.
Nevertheless, the history of the Congress’s engagement with civil society groups and academics on farmers’ issues is well-known and -documented. Still, it took months for the Congress to come out in open support over Section 377. Unexpectedly, this was followed by the Bharatiya Janata Party-led government, too, dropping its objections. The government said it did not have an opinion on the matter and would go by whatever the judges decided.
I asked Anjali Gopalan, an influential campaigner for the rights of people living with HIV/AIDS, and executive director of Naz Foundation (India) Trust, how this came about—and about the broad dynamics of engagement between India’s civil society and governments.
“Engaging with people from all walks of life is critical if you want to bring about change,” she said. “The question is, can we get them (politicians) to understand why we are taking a particular stand? They should understand. They do seek us out as well.”
The broad coalition of activists who worked on Section 377—not just celebrities but thousands of faceless campaigners—actively engaged with both BJP and opposition politicians, including several current and former ministers. Whether this is changing Indian society or not is hard to tell. Government mistrust of NGOs has mounted in recent years, reflecting in close scrutiny of their finances and strictures on foreign funding.
Yet, the recent string of judgements has the real potential to shake up parts of Indian society. “Courts are for us a source of hope, invariably,” said Gopalan.
Dipankar’s Twitter handle is @Ddesarkar1