Upon reopening in July afterits annual summer break,the Supreme Court has im-

mediately found itself back in thespotlight. If the fi��rst half of theyear (occupied entirely by theAadhaar hearings) raised criticalquestions about the relationshipbetween the individual and thestate, then the second half — in-volving the (concluded) challengeto Section 377 of the Indian PenalCode, the (ongoing) Sabarimalacase, and the (scheduled) constitu-tional challenge to adultery — hasplaced the court at the heart of theculture wars. While the Aadhaarchallenge was argued on the rela-tively straightforward basis ofwhen and to what extent the statecan exercise its coercive power ov-er individuals, the 377 and Sabari-mala hearings have seen clashesbetween the invocation of perso-nal rights and the claims of cultu-ral and religious groups. This is setto continue with the forthcomingadultery hearings, where thestate’s objection to the decriminal-isation of adultery is premised onthe argument that it would destroythe institution of marriage.

Strategy of containmentWhen a constitutional challengepits individuals against the state,the court’s task is clear: if it fi��ndsthat there has been a breach by thestate, it must strike down the of-fending law (or rules), and vindi-cate the rights at issue. When, ho-wever, the court is called upon tosettle a battle in the culture wars,the task is fraught with greater

complexity. This is because theseconfl��icts often represent deep,long-standing and irreconcilabledivisions in society, touching is-sues of personal belief and convic-tion. Constitutional documents of-ten consciously refrain fromdirectly addressing them: for ex-ample, the framers of the Consti-tution deliberately placed the pro-vision for a uniform civil code inthe unenforceable “Directive Prin-ciples” chapter, thinking that itwas too divisive to be made a fun-damental right.

This strategy of containmentcreates a situation where, for themost part, these confl��icts remainsubmerged. The fear of perma-nent defeat prompts all parties tomaintain a tense equilibrium. Attimes, however, the equilibrium isshattered when someone fi��nallydecides to break the stalemate,and raise the stakes towards aclear resolution. One method ofresolution is through the courts.But ironically, it is the battles ofthe culture wars that are particu-larly ill-suited for resolutionthrough the zero-sum game ofcourtroom litigation. Unlike in pol-itical or economic disputes, a deci-sive loss in a matter involving per-sonal belief risks creating deeplyembittered and alienated com-munities, and risks an erosion offaith in the neutrality and impar-tiality of state institutions.

The narrow approach For this reason, there is a popularschool of thought that asks thecourt to tread with particular cau-tion when questions of culture areat stake. As far as possible — or sothis school of thought holds — thecourt should avoid hearing and de-ciding such questions altogether.However, if it must decide, then itshould do so on the narrowestgrounds possible. Ideally, its rea-

soning should be limited to techni-cal points of law, avoid constitu-tional questions, decide only thecase before it, consciously eschewestablishing precedent, and,above all, refrain from expressingany opinion on the validity of anypersonal belief or conviction. Therole of the court, in short, is to doeverything it can to lower thestakes, and take a pragmatic, pro-blem-solving approach to the con-fl��ict rather than an ideal-oriented,expansive one.

This narrow approach has beenin play in both the cases that thecourt has heard so far, this July. Inthe Section 377 hearings, the go-vernment stated that it would notoppose the “reading down” of Sec-tion 377 as long as it was confi��nedto same-sex relations betweenconsenting adults in private. Dur-ing oral arguments, every time thepetitioners pressed for somethingmore, government counsel urgedthe court to limit itself to simpledecriminalisation, and nothingmore. Similarly, in the Sabarimalahearings, what is at issue is the va-lidity of a piece of subordinate le-gislation (specifi��cally, a rule), onthe basis of which women of a cer-tain age are denied access to Saba-rimala. While arguments beforethe court have, of course, beenpitched upon the touchstone of re-ligious freedom and non-discrimi-nation, it is equally open to thecourt (if it so desires) to simply

hold that the rule exceeds thescope of the parent law, and is the-refore invalid on purely statutorygrounds. This would enable thecourt to avoid reaching any deter-mination on whether Sabarimalais entitled to invoke the authorityof religion (in this case, lord Ay-yappa’s vow of celibacy) in orderto deny girls/women between theages of 10 and 50 the right to wor-ship at the shrine. Indeed, this isprecisely what the narrow ap-proach would advocate.

The transformative approach There is, however, a rival philoso-phy of constitutional adjudication.This philosophy holds that theConstitution is a transformativedocument, whose goal is to eraseand remedy long-standing legaciesof injustice. A particular feature ofthese injustices is their deep-root-ed, social and institutional charac-ter. In the Indian context, the mostobvious example is that of caste.The pervasive and corrosive in-fl��uence of caste-discrimination inour society not only prompted theinclusion of a specifi��c article in theConstitution abolishing untoucha-bility (Article 17), but over andabove that, gave rise to a constitu-tional vision of equality that spec-ifi��cally included affi��rmative action.

Consequently, where the nar-row approach sees a culture wartriggered by the disruption of acarefully-maintained accommoda-tion of cultural diff��erence, thetransformative approach sees along-suppressed protest against asystem of hierarchy and subordi-nation that has found its utterancein the language of constitutionalrights. For the transformative ap-proach, it would be a betrayal ofthe Constitution’s transformativepurpose if the court were to re-treat in the face of strident claimsto cultural integrity, and duck de-

ciding the “real” questions beforeit.

In the 377 hearings, for exam-ple, the transformative approachwas articulated by counsel repre-senting mental health profession-als, who argued that decades of so-cial exclusion and ostracism of theLGBT community could not be re-medied simply by “decriminalisa-tion”. Rather, it would require adeclaration by the court that no in-stitution — public or private —would henceforth be permitted todiscriminate on grounds of sexualorientation, or deny any persontheir civil rights. This would ac-complish two crucial things: fi��rst,it would be a small step towards re-moving the structural and institu-tional barriers that continued tostand between the LGBT commun-ity and equal moral membershipin the community; and second, itwould serve as a public acknow-ledgement of a wrong that societyhad been complicit in, and whichsociety was not determined to re-medy. Similarly, in the Sabarimalacase, counsel have urged the courtto hold that religion cannot be in-voked to shield a discriminatorypractice from constitutional scru-tiny; and that, at the end of theday, constitutional morality mustprevail over precepts that are root-ed in any particular religion.

In these cases, therefore, thecourt is faced with a stark choicebetween the narrow and the trans-formative approaches to navigat-ing the choppy waters of cultureand the Constitution. Which direc-tion it chooses to take dependsupon what it believes the Constitu-tion is for — and will have pro-found consequences in the yearsto come.

Disclaimer: Gautam Bhatia was part of agroup of lawyers involved in the 377challenge

The narrow and the transformativeThe Supreme Court is hearing cases that place it at the heart of the culture wars

Gautam Bhatia

V. S

UDER

SHAN