INP1083064_rev1.indd

Representation and Legitimacy

in the Supreme Court:

Adjudicating Law and

Religion in India

Raeesa Vakil

Abstract

This article presents the argument that the Supreme Court of India’s jurisprudence on procedural bars

to litigation is insufficient to address challenges that arise in cases involving religious rights. Examining

the Court’s views on standing (the right to litigate) in three key public interest decisions (the Sabarimala

Temple case, the Ram Janmabhoomi case, and the triple talaq case), I argue that the Court has privileged

a discretionary, ends-based reasoning over an approach based on principle and law, resulting in erratic

and inconsistent outcomes. The result is an uncertain level of protection to minority rights in judicial

processes.

Keywords

India, constitution, law, religion, majoritarianism, Supreme Court

Introduction

The Indian Supreme Court’s well-established practice of relaxing procedural constraints in litigation

concerning the public interest has allowed individuals to assume the right to represent groups without

proving their credentials. In such public interest litigation (‘PIL’), the petitioners are no longer required

to establish their standing, and the Court is not required to consider their individual interest before

hearing the case. The removal of these procedural bars allows the Court to proceed with exercising wide

judicial review over such cases without pausing to establish whether the case can be heard by them or

whether the petitioner is acting for the greater good (Craig & Deshpande, 1989; Divan, 2020; Sathe,

2002). Arguments in support of the relaxation of rules of standing are premised on improving access to

justice and democratizing the judicial process by expanding it out of the reserve of elite and wealthy

litigants and enabling those with power to represent the otherwise disempowered (Baxi, 1985;

Cunningham, 1987). At the same time, recent critiques of the Court’s disregard for procedural constraints

Original Article

Yale Law School, New Haven, CT, USA.

Corresponding author:

Raeesa Vakil, Yale Law School, New Haven, CT 06511, USA.

E-mail: [email protected]

Studies in Indian Politics

1–14

Study of Developing Societies

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DOI: 10.1177/23210230221083064

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2 Studies in Indian Politics

on litigation have focused on how judges privilege interventions by certain elite groups of legal scholars

and practitioners, casting doubt on whether access to justice has, in fact, improved in all ways (Bhuwania,

2017, p. 39).

Critiques of the Court’s approach to procedure in matters of public interest are more complicated

when the Court engages in programmatic reform in the specific field of religion. In such cases, it is far

more difficult to negotiate the assumption that any individual–particularly one that does not belong

within a religious group–can litigate on the subject of religious rights in the ‘public interest’, particularly

when the Indian Constitution explicitly protects both individual and group religious rights. Three recent

cases demonstrate the challenges before the Court when it comes to understanding the nuances of this

debate. In 2017, the Supreme Court ruled in the Shayara Bano case that the Muslim practice of ‘talaq-e-

biddat’, or instantaneous unilateral divorce declared by a husband, was not an ‘essential religious

practice’ within Islam, and consequently not protected under the Constitution. This case was at the

instigation of the court, and involved the government, several women directly impacted by such divorces,

and several religious groups arguing for and against the practice (Supreme Court of India, 2017). In

2019, the Supreme Court ruled in the Sabarimala Temple case that restrictions based on notions of

religious purity that prohibited women between the ages of 10 and 50 years from entering a place of

worship and worshipping there were also unconstitutional, and ordered religious authorities to grant

them entry, resulting in widespread protests, 51 petitions for review, and the reference for an authoritative

ruling by a nine-judge bench (Supreme Court of India, 2019). This case was instigated by a group of

lawyers and was opposed by local and religious authorities who invoked their religious rights to argue

that the petitioners who had instituted the case could not do so, as it did not personally affect them.

Finally in 2020, the Supreme Court contravened settled positions on property law, ruling that while the

destruction of a medieval Muslim mosque, the Babri Masjid, by a mob of Hindu rioters was unlawful,

equity demanded that they cede to Hindu majoritarian claims concerning the site (Supreme Court of

India, 2020a). The litigation encompassed multiple religious and political figures, all of whom made

competing and various cases of representation in the litigation. Although this was a property litigation

and not a classic PIL, it certainly affected the public interest and was procedurally managed in a manner

similar to PILs.

In all these three cases, the Court found, despite precedent on the irrelevance of standing, that it was

in fact necessary to examine the legitimacy of the petitioners’ suits, with particular reference to their

ability to successfully contest the rights of religious groups. Existing jurisprudence on the irrelevance of

standing in public interest matters was of little or no benefit in navigating these questions, leaving the

Court to evolve an episodic, case-specific response in each case. The result has been an absence of a

principled, coherent understanding of the question of standing in religious matters, and one that

specifically results in more concessions to majoritarian claims over minority rights. As a consequence,

the procedural holdings in these three cases reflect significant concerns about how the Supreme Court of

India navigates majoritarianism in cases concerning religion and the law.

In this article, I discuss these three recent cases and the Court’s approach on standing, to argue that

the Indian Supreme Court’s usual, instrumental understanding of procedure in public interest matters is

insufficient to address questions that religious conflicts can present in the judicial process. In the first

part, I consider the Supreme Court’s views on the issue of standing in existing literature on PIL,

demonstrating the Court has, perhaps unfairly, eschewed the question altogether. In the second part, I

study the three cases of Shayara Bano, Sabarimala Temple, and Ram Janmabhoomi, examining how the

Court has dealt with the issue of standing in each instance. In the third part, I conclude by arguing that

inconsistent, often erratic jurisprudence on standing is insufficient to enable the Court to act in its

mandate as a counter-majoritarian institution. In the context of rising majoritarianism, I argue that the

Vakil 3

Court’s ability to navigate this issue attains increasingly pressing relevance, as minority religious groups

come under increasing pressure from religious majorities.

Standing, Public Interest and Religion at the Supreme Court of India

India’s Constitution, enacted in 1950, provides for the protection of group and individual religious rights,

and the inclusion of the description of the Indian state as ‘secular’ by Constitutional amendment in 1976

is considered largely to be a reflection of the principles inherent in the Constitution’s framework. The

commitment to balancing group and individual rights, or claims of majority and minority religious

groups, did not come easy. In the Constituent Assembly, debates over a proposition for a ‘common civil

code’ covering aspects of personal law such as marriage, divorce, succession and inheritance ultimately

floundered, surviving only as an unenforceable exhortation to the State in the constitutional text (Article

44). Challenging the notion that Parliament could legislate, and courts could adjudicate over personal

life, one member said, ‘What purpose is served by this uniformity except to murder the consciences of

the people and make them feel that they are trampled upon as regards their religious rights and practices?

Such a tyrannous measure ought not find a place in our Constitution’ (Sahib, 1948)

In place of this ‘tyrannous’ uniformity, India has instead a plural legal regime: under the Constitutional

framework, it is not just the profession of faith but also its practice that is protected. The plural legal

framework governing religion in India protects individual as well as group rights in the Constitutional

text, but leaves sufficient ambiguity that necessitated judicial interpretation over the years to balance

both concerns. Articles 14–21 of the Constitution protect the individual’s right to equality, to speech and

against discrimination on grounds including gender and religion. Articles 25 to 27 establish a protective

regime around religious rights, permitting communities to ‘practice, profess and propagate’ their religion

and permitting them to establish religious institutions. Apart from these, a series of statutory codifications

of religious practice govern personal life: laws such as the Hindu Marriage Act of 1955 or The Muslim

Women (Protection of Rights on Divorce) Act, 1986 lay down codes for individuals to follow within

their faiths. Even without a ‘uniform civil code’, the state has evolved, over the years, certain secular

laws that apply to those who choose them: The Special Marriage Act, 1954, for instance, may be used to

solemnize interfaith marriages, or intra-faith marriages for those who prefer not to have a religious

ceremony. All statutory enactments remain vulnerable to constitutional challenge: a religious custom so

recorded is unambiguously vulnerable to judicial review on the grounds that it violates one or more

constitutional rights. Religious rights, additionally, are subject to judicial review on the grounds of public

health, morality, and order, as interpreted by the Supreme Court (Article 25)

In testing religious laws against the Constitution, the Supreme Court has taken the view that its role

is to interpret religious texts and authorities in order to determine whether customs and practices are

‘essential’ to that religion, and are therefore protected. This doctrine of ‘essential religious practices’

(Dominic, 2020; Sen, 2019, pp. 75–90) has attracted substantial criticism: the Court has been described

as engaging in a project of religious reform by several scholars (Dhavan & Nariman, 2000, pp. 258–259;

Galanter, 1992, pp. 247–250) who see this variously as an attempt to expand judicial review, or as an

inevitable consequence of the lack of unified institutional structures within diverse religious groups that

are capable of taking on such reform projects themselves (Mehta, 2005, p. 64). The Court’s substantive

jurisprudence on religious rights has been the subject of extensive academic review, and Ronojoy Sen in

particular has argued that the essential religious practices test works to ‘…legitimise a rationalised form

of high Hinduism’, (Sen, 2019, p. 73) co-opting the role of a religious interpreter to determine legal

rights and privileges. In such cases, the Court has found it necessary to determine what is `essential’ to a

4 Studies in Indian Politics

religion by investigating religious texts and doctrine. Nariman and Dhavan have therefore criticized the

Court for acting as a religious authority, noting that ‘…. With a power greater than that of ahigh priest,

maulvi or dharmashastri, judges have virtually assumed the theological authority to determine which

tenets of a faith are “essential” to any faith and emphatically underscored their constitutional power to

strike down those essential tenets of a faith that conflict with the dispensation of the Constitution. Few

religious pontiffs possess this kind of power and authority’ (Dhavan & Nariman, 2000, p. 259).

The Supreme Court’s attempts at programmatic reform on questions of religion can be contextualized

in their broader interventionist work in judicial review. The ‘public interest litigation’ petition (PIL) is a

form of litigation in India, in which procedural constraints on litigation are relaxed in order to permit

claims in the public interest to be raised by any concerned citizen. Chief among the relaxed procedural

constraints is the rule of standing, or locus standi, which ordinarily requires a petitioner to demonstrate

that the case they raise personally affects them. The Supreme Court’s evolving jurisprudence in PILs has

established that this is no longer necessary; the petitioner is not required to show that they are personally

affected by the legal issues raised, but only that the issue is one that falls within the Court’s jurisdiction

and its powers to provide remedies (Bhuwania, 2017, pp. 42–45; Sathe, 2002, p. 201). This relaxation of

standing was not one based on a systemic reform in procedure but rather, a discretionary power asserted

by the Supreme Court, which determines on a case-by-case basis whether the petitioner is in fact

motivated by the public spirit, or in their formulation of the concept in 1984, is a ‘…a meddlesome

interloper or busybody…’ (Supreme Court of India, 1984).

Initial conceptions of PIL, such as those by Upendra Baxi demonstrated a preoccupation with the

suffering of the disadvantaged. As Baxi notably argued, ‘taking suffering seriously’ was the Court’s

objective in intervening in executive action and overruling legislative intention (Baxi, 1985, p. 120). In

one of the earliest decisions on this question, the Court held that a liberalized view of procedure, and

especially standing was the only way that the Court could invest ‘…law with meaning and purpose or

else the law would remain merely a paper parchment, a teasing illusion and a promise of unreality’.

Removing the procedural bar on standing allowed the Court to intervene in cases that might not have

otherwise found their way to the higher judicial system. Often led by concerned civil society groups or

individuals, these PILs were described by Dhavan as being ‘…led essentially by middle-class judges,

academics, newspapermen and social activists’ (Dhavan, 1987, p. 745) who were not required to establish

their credentials, either procedurally as standing, or in principle, for the Court to justify their intervention

on questions of policy.

These arguments were persuasive, powerful accounts of how structural and institutional inequities in

access to justice could be countered. They still remained vulnerable to the critique that the relaxation of

procedural norms left PILs vulnerable to abuse of processes, with unfair and ill-considered outcomes

resulting from a failure to take into account all affected parties while such cases were being decided.

Critiques ranged from arguments resting on the separation of powers and the limits of judicial review, to

criticisms of the Court’s capacity to determine complex questions of policy, and finally, to the tendency

of courts to engage selectively with evidence based on the identity of the persons was appearing before

them. An increasingly common practice in PILs has been for the court to appoint its own experts as amici

curiae (friends of the court) who participate in the proceedings not to represent any party, but to assist

the court with complex legal questions. Along with these, the Court routinely creates investigative

commissions of experts to discern facts, and such experts are appointed in an opaque, discretionary

This case was a public interest petition led by an association of lawyers, challenging the Union Government’s policy on the

transfers of judges from one posting to another and the role of the Union Government in appointing judges in High Courts and the

Supreme Court (Supreme Court of India, 1981).

Vakil 5

manner. The creation of a heavily privileged judicial process in which participation is not guaranteed to

any person or institution except state functionaries is also accompanied by a rise in suo motu petitions,

in which the Court raises litigation on its own accord. In a recent anthropological study of the practice of

PILs at the Indian Supreme Court, Bhuwania describes this shift from a public-spirited representative to

judicial self-instigation of public interest cases, marking the petitioner as an ‘…increasingly redundant

figure’ (Bhuwania, 2017, p. 39). A common criticism of such PIL has consequently been that it is

fundamentally undemocratic in nature, with some scholarly accounts criticizing the expansion of judicial

review into questions of policy by arguing that the Court, in overstepping its bounds, has actively harmed

or impeded democratic process, privileging elite litigants who present selective facts to the Court to

achieve projects of reform (Bhuwania, 2017, pp. 140–142). As Mehta has argued, much of the Court’s

decision-making in these contexts is consequently characterized by accommodative bargaining with

political actors, and not by ‘…a clear and consistent constitutional vision’ (Mehta, 2007, p. 76).

The Court has found it reasonably easy to ignore the question of standing when determining what lies

in the interests of the public in secular contexts. When determining whether an individual fairly represents

a religion’s ‘essential’ concerns, the Court has found it far more challenging. In questions concerning

public interest and religious rights, however, the ‘increasingly redundant’ petitioner has re-attained

significance. Most religious groups in India lack organized institutional structures, and fragmented,

diverse identities result in multiple paths of representation in the public sphere (Mehta, 2005). In such

cases, establishing the standing of the petitioner is fundamental not only to creating the foundation for

the Court’s intervention, but also to determine whether the affected religious groups are being represented

adequately in proceedings at the Court. Standing, therefore, becomes not only a procedural hurdle to

litigation, but also a substantive question of individual and group rights, that the Court can no longer

avoid navigating, even in the public interest. Although existing literature has not grappled with this

question deeply, in the next section I demonstrate that three recent cases make a pressing case for

re-examining standing in cases concerning religion.

The Supreme Court on Religion and Standing: Three Recent Cases

Shayara Bano

The Shayara Bano case initially began when the eponymous petitioner and four other Muslim women

challenged the practice of ‘talaq-e-biddat’ or instantaneous unilateral divorce initiated by Muslim men,

after each of them had undergone such divorces. The arguments that they presented were broadly two-

fold; firstly, that this customary form of divorce violated their individual constitutional rights to equality

and against discrimination on the ground of sex, and secondly, it was not sanctioned with the religion of

Islam, and consequently was not protected as a religious practice within the Constitution (Supreme Court

of India, 2017, pp. 101–106, Writ Petition (Civil) No. 118 of 2016 on file with the author).

Although it began as individual litigation by affected persons, the case was later converted into a PIL,

not at the instance of concerned petitioners but at the behest of the Court. In a previous case concerning

the application of a law governing succession of property for Hindu women, the Court made some

observations on what it described as an ‘…important issue of gender discrimination, which though not

directly involved in this appeal, has been raised by some of the learned counsel, which concerns the

rights of Muslim women’ (Supreme Court of India, 2016, p. 53). The Supreme Court chose to combine

Bano’s, and four other individual cases, with the PIL, hearing both sets of claims together, and allowing

multiple interventions from parties who were concerned about the legal issues at stake during the

6 Studies in Indian Politics

proceedings (Supreme Court of India, 2017, p. 54, per Nariman J.). While there is precedent for such suo

motu interventions, they have met with varying success, a major critique being that the Court does not

always allow representation from those who are affected by the outcome of the case (Bhuwania, 2017,

p. 116).

A number of additional parties and organizations were permitted by the Supreme Court to be involved

in the PIL. These included, for instance, the All-India Muslim Personal Law Board (AIMPLB), a

privately constituted organization, which asked to impleaded in order to support the practice of ‘talaq-e-

biddat’. Its argument rested on a claim that Islamic law recognized and accepted the practice (Supreme

Court of India, 2017, p. 195, per Khehar CJI and Nazar J.). Opposing the practice, the Bharatiya Muslim

Mahila Andolan (BMMA), a women’s organization, intervened after leading a public campaign that

collected 50,000 signatures condemning ‘talaq-e-biddat’ as a custom in Islam (Johri, 2016). No test was

applied to determine the qualifications of these intervenors to represent their claims; indeed, the Court

did not, for instance, investigate arguments that challenge the authority of the AIMPLB to represent

Muslim views on their religious laws (Jones, 2010). The decision on allowing petitioners was purely

discretionary, and not justified or explained in any context.

The Court ultimately premised its decision on talaq-e-biddat on the submissions by these various

parties, striking down the practice not because it impinged on the constitutional guarantee to equality

that Shayara Bano had asserted, but because it was, as she and others had argued, inconsistent with the

tenets of Islamic law. The significance of the challenge being raised by both, individual Muslim women,

and organized groups of Muslim women, according to scholars like De and Divan, was radical because

it demonstrated the ‘…recognition of religious, secular and female interpretative authority…challenging

both the ability of the state or a religious leader to be the sole spokesman for Islamic law’ (De, 2017;

Divan, 2020).

In this view, the persuasiveness of the judgement draws from the internal demand for reform, one in

which De argues that the Court, by ‘…respecting the authority of both religious and constitutional law,

preserves the legitimacy of the forum’ (De, 2017). Indeed, in an interview after the case, Bano expressed

her approval for the decision, describing how she faced opposition from the AIPLMB outside courtroom

proceedings, and how they accused her of ‘going against Islam’ (Rashid, 2017). Undeniably, the relief

that Shayara Bano sought from the Court was granted, yet Shayara Bano herself finds no mention in

either of the majority opinions: she is invisible in the Court’s judgement, only appearing in the dissenting

opinion, where her arguments are comprehensively rejected (Supreme Court of India, 2017, pp. 101,

155–163, 293–294 per Khehar, CJI and Nazar J). As another commentator put it, the judgment, delivered

by five male judges, was ‘…a classic case of a gender-just outcome without a gendered reasoning’ (Sen,

2017).

Sabarimala Temple

The claim that the outcome of Shayara Bano was just is hard to deny. Even as the Court preferred a

religious interpretation over constitutional law as the basis of their holding, it ended a historically

discriminatory practice that stood in direct violation of the fundamental rights to women. Yet, ends-

based justifications in the outcome of this case, such as De’s, leave the Court vulnerable to criticisms

about how this power is exercised when the outcome is less widely accepted. This was evident in the

Sabarimala Temple case, in which, unlike Shayara Bano, the Court faced, and was forced to address

a direct challenge to the standing of the petitioners to intervene in a matter concerning religious rights.

Dedicated to the celibate deity, Lord Ayyappa, the Sabarimala Temple is a site of pilgrimage,

Vakil 7

administered and managed by a temple board in which the government plays a significant role in

funding, and appointing authorities. A governing state legislation prohibited discrimination in access

to the temple; a subsequent rule framed under the law allowed temple authorities to regulate entry for

women in accordance with custom. The temple authorities accordingly issued notifications, barring

women between the age of 10 and 50 from entering the temple to worship, premised on religious

understandings of purity and uncleanliness associated with menstruation (Supreme Court of India,

2019, pp. 165–168 per Chandrachud J).

The Sabarimala Temple case arose as a pure PIL filed by a group of lawyers on the basis of newspaper

reports regarding the discriminatory practice of denying entry to women. Unlike the Shayara Bano case,

it was not the product of sustained litigation or campaigning by affected individuals, but a petition filed

by a group of young lawyers, who worked on issues concerning gender equality and justice (Supreme

Court of India, 2019, p. 245 per Malhotra J.). Challenging their standing to file the case altogether, the

respondent temple authorities argued that none of the petitioners had in fact been denied entry to the

temple, and consequently could not challenge a rule for being discriminatory, if it had not discriminated

against them (Supreme Court of India, 2019, p. per Nariman J.). The Court ultimately ruled 4:1 that the

restriction was discriminatory, and struck down the rule in question. For Justice Nariman, concurring

with the majority, the challenge to the petitioner’s standing to file the PIL was a mere technicality, one

that could not stand in the way of ‘…a constitutional court applying constitutional principles’ (Supreme

Court of India, 2019, p. 150 per Nariman J.). The majority opinion of Chief Justice Dipak Misra and A.

M. Khanwilkar did not even consider the objection.

Justice Chandrachud’s concurring opinion, however, articulated a complex set of reasons which

supported the petitioner’s claim to legal standing in the case. Unlike Shayara Bano, here Justice

Chandrachud identified access to public spaces as a matter of public interest (Supreme Court of India,

2019, pp. 152–153 per Chandrachud J). Social structures such as patriarchal systems or caste-based

discrimination, which limited such access, could not be permitted and were issues in which every

citizen had a stake. ‘To allow practices derogatory to the dignity of women in matters of faith, and

worship’, he held, ‘would permit a conscious breach of the fundamental duties of every citizen’

(Supreme Court of India, 2019, pp. 152–153 per Chandrachud J). To Justice Chandrachud, the

Constitution was a document of transformation; the Court, accordingly, could, and should facilitate

these social transformations in the pursuit of constitutional principles, by enforcing fundamental rights

claims over discriminatory practices by groups against individuals within those groups. This principle

of anti-exclusion, he held, was the method through which the Court could fulfil its constitutional

obligations to protect fundamental rights.

It is difficult to disagree with this persuasive account of the judiciary’s role in challenging and

prohibiting discriminatory religious practices. Yet, in the singular dissent in the Sabarimala Temple

case, Justice Malhotra does warn convincingly of how the procedural implications of allowing this

case might result in dangerous, populist, consequences. To allow this case, she holds, would be to ‘…

require this Court to decide religious questions at the behest of persons who do not subscribe to this

faith’ (Supreme Court of India, 2019, p. 256 per Malhotra J.). Opening cases to ‘interlopers’, further,

would open floodgates to majoritarian challenges: ‘The perils are even graver for religious minorities

if such petitions are entertained’ (Supreme Court of India, 2019, p. 256 per Malhotra J.). To

commentators like Bhatia, Justice Chandrachud provides the more persuasive account for allowing

petitioners to challenge faiths that they do not subscribe to, taking into account the inextricable linkage

between Indian society and religion. To accept Justice Malhotra’s dissent would be to ignore ‘…how

deeply intertwined religious, social, and public life is in India, and how discrimination within one

sphere inevitably spills over into other spheres’ (Bhatia, 2018).

8 Studies in Indian Politics

Justice Chandrachud’s account of representation permits challenges to religious customs which do

not apply to the challenger but also articulates a standard on which these challenges may be tested. It was

not well-received, however, with both ends of the political spectrum challenging the Kerala government’s

decision to implement the case instead of seeking a review, and public rallies that directly opposed the

Supreme Court’s exercise of jurisdiction in the case, and according to some, represented a ‘…a full-

throated mobilisation against the authority of the court itself’ (Krishnakumar, 2018; Mehta, 2018b).

Mehta, while agreeing with the outcome of the Sabarimala Temple case, was concerned that the

consequence would be ‘…a recipe for whole scale statism in the name of social reform’ (Mehta, 2018a).

Malhotra’s judgement, in one sense, was more allied to De’s argument on Shayara Bano, which argued

that legitimacy for judiciary-led reform on religion was stronger when it was presented from sources

internal to the religion.

It is evident that the question of representation gains greater significance when determining disputes

that relate to religious practices, such as in Sabarimala Temple or Shayara Bano. In Sabarimala Temple,

when elaborating on the manner of determining religious dispute, Justice Nariman asserts first, the

primacy of the individual, and then, the primacy of the judge. ‘Every member of a community has a

right’, he holds, ‘to practice the religion so long as he does not, in any way, interfere with the corresponding

right of his co-religionists to do the same’ (Supreme Court of India, 2019, p. 140 per Nariman J.). How

then does the court navigating contested claims within the community? Nariman’s response is that in

such cases, ‘…the Court is to decide whether such matter is or is not essential’ (Supreme Court of India,

2019, p. 140 per Nariman J). His position is reiterated by Chandrachud J, who holds that ‘…while the

view of a religious denomination are to be taken into consideration in determining whether a practice is

essential, those views are not determinative of its essentiality’ (Supreme Court of India, 2019, p. 187 per

Chandrachud J). It is a framework that provides security for individuals seeking judicial review to secure

their own rights, but one that does not accommodate cases that present more complex questions involving

minority and majority groups.

Babri Masjid

The 2020 Babri Masjid case demonstrates the limits of the nuanced approach on representation that was

apparent from the opinions in the Sabarimala Temple case. The case was framed at the Supreme Court

as a dispute over property, in which competing claims to the title of a disputed land were to be adjudicated.

Decades of legal contestation over the site can be traced to political claims from the Hindu right that the

mosque was built over the remains of a demolished temple that marked the site of birth of the Hindu god,

Ram Lalla, and to claims from Muslims that there was no temple, but instead a mosque with an unbroken

tradition of worship dating back to the 1500s (Noorani, 2003). In an act of astonishing violence, reflected

in political conflict across the country with resonating effects, the mosque was demolished by Hindu

mobs in 1992. A parallel criminal proceeding concerning the demolition continues until date, with key

political leaders of the present named as active participants. Moreover, the construction of a temple on

the site of the demolished mosque was a key component of the Hindu-right Bharatiya Janata Party’s

manifesto, when they won their second term to constitute the present government in India (Press Trust

of India, 2019).

The Babri Masjid case raises questions of conflicts between majoritarian and minority communities

as well as competing claims of religious rights to worship, and as has been noted by Sebastian and

Rahman, concern acts of violence at its core that militate against the suggestion that it is purely a property

dispute (Sebastian & Rahman, 2019). Over 50 litigants concerned with various stages of the suit appeared

Vakil 9

before the Supreme Court, including the three chief parties who had been allocated one-third of the

disputed land, each, during a prior High Court decision, which was being appealed here. As part of the

set of cases concerning this dispute, the Supreme Court had already ruled that it would not revisit an

earlier finding in which it had held that mosques were not an essential element to worship in Islam

(Supreme Court of India, 2020a). In the course of this case, which inextricably linked questions of land,

with criminal law, and religious rights to worship, the Court, unlike Sabarimala Temple and Shayara

Bano, refused to hear a group of intervention applications filed by varied political actors. One such

intervention application filed by a group of scholars and activists sought inclusion in the case so that they

could argue that the site should be granted to neither party, but instead directed towards a ‘non-religious

use’, while expressing concern about the majoritarian pressures operating in the case (Benegal et al.,

2017). This and other interventions were rejected, with the Court affirming its view that it intended to

decide the case only between the parties that were already involved in the appeal, and a direction to the

registry not to entertain any more intervention applications. Less than a year later, the Court had

apparently backtracked to allow a Buddhist petitioner to raise a fresh claim in the suit, despite no

indication of any evidence that the disputed mosque had connections to ancient Buddhist lands (Supreme

Court of India, 2020a). It is apparent that it is difficult to reconcile Justice Chandrachud’s expansive view

of judicial proceedings as being available to enforce every individual’s claim on equality, dignity and

against discrimination in Sabarimala Temple, with the eventual outcome of the Babri Masjid case, in

which he was one of five judges who issued a unanimous opinion. The rejection of intervention

applications and the Court’s repeated affirmations that the suit was limited to questions of title to property

are undermined by the manner in which the Court examined and accepted evidence of ownership of the

land, and with their eventual disposition of the case. While insisting that the laws being applied were not

those concerning faith, and were purely considerations of property, the court effectively demanded two

different standards of evidence from the Muslim and Hindu parties to accept the Hindu claim to worship

there on a ‘a preponderance of probabilities’ (Pasha, 2019; Supreme Court of India, 2020a, p. 740).

Having found, regardless, that the desecration of the mosque, and its destruction, were in fact illegal, the

Court decides to provide ‘restitution’ for the destruction by relocating the Muslim claim to a plot of land

to be allotted by the State Government, at its discretion (Supreme Court of India, 2020a, p. 741). This

‘restitution’ does not actually restore; rather, it reallocates, and to a specific claimant (the Sunni Waqf

Board) with the Court failing to acknowledge the competing Muslim claims by other organizations

within the dispute. Similarly, the administration of the original disputed site, now dedicated to a Hindu

temple, is vested in a trust, to be established by the Central Government (Supreme Court of India, 2020a,

p. 741). It is a resolution that has no footing in law but is validated by the Court because the Constitution

empowers it to do ‘complete justice’ (Supreme Court of India, 2020a, pp. 662–664). An anonymous

addendum, attributed only to ‘one of us’ by the Court, explores statements of faith by Hindu parties,

treating these as ‘oral evidence’ of the existence of a Hindu religious structure on the site (Supreme Court

of India, 2020a, p. 792) It implicitly rejects the judgment’s holding that the court cannot ‘…reduce

questions of title to a question of which community’s faith is stronger’ (Supreme Court of India, 2020a,

p. 313).

The conflict at the heart of this resolution, despite the praise that it has received for balancing

competing claims to arrive at a socially negotiated solution (Baxi, 2019; Staff, 2019), lies in its actual

rejection of legal principles to endorse majoritarian claims (Bhatia & Parthasarathy, 2021). Riddled with

internal inconsistencies, iniquitously applied standards of evidence, and thin reasoning, the Court’s most

dangerous holding in Babri Masjid was to dismiss the violence that resulted in the denial of access to the

mosque’s site by Muslims, and then, as Rahman and Sebastian demonstrate, use that lack of access as

evidence that they did not hold unbroken possession of the land (Sebastian & Rahman, 2019). Justice

10 Studies in Indian Politics

Chandrachud’s concurring opinion in Sabarimala Temple recognizes the structural inequality inherent in

systems of patriarchy and caste oppression. This stands in stark contrast with the failure to accordingly

recognize the structural inequalities that arise from claims by majoritarian groups against religious

minorities in Babri Masjid. Even if we accept the argument that this is purely a title suit, his position

about the ‘…adjudicatory role of this Court in defining the boundaries of religion in a dialogue about our

public spaces’ is still a convincing, if ignored, argument that the apparent property dispute could have

been opened to wider representations, and considerations of the ‘…structures of oppression and

domination’ that he had invoked (Supreme Court of India, 2020a, p. 243 per Chandrachud J).

Conclusion

The three cases discussed in this article present a set of varied concerns about how the Supreme Court of

India hears and navigates contested religious claims, and raises questions about whether it can, and does,

adequately protect the individual against the group, resolve conflicts within groups, or protect the

minority against the majority. The Court’s ultimate jurisdiction extends to ‘doing complete justice’ under

Article 142 of the Constitution. In PILs, the Court has used this power as an authorization to relax

procedural requirements in the interests of addressing structural concerns in the inequitable access to

justice. Yet, the power to ‘do complete justice’ is inherently linked to the Court’s obligation to protect

fundamental rights, of which an essential component is protecting fair and just procedures that ensure

justice to all participants in the judicial process. In cases concerning religion and standing, negotiating

these two aspects requires the Court to consider and evolve principles on the basis of which it can allow

petitioners to present their claims without excluding or ignoring the voices of others who may be affected

by such petitions. In Shayara Bano, Sabarimala Temple, and Babri Masjid, we see that the Court, time

and time again, privileges a discretionary approach over a principled one. The weaknesses of this

approach are evident from the long afterlives of these three cases, in which doors that the Court left open

to do discretionary justice have instead allowed majoritarian politics to creep in to this jurisprudence.

In Shayara Bano, rightly decided for the wrong reasons, the Court chose to give greater weight to the

consistency of the practice of ‘talaq-e-biddat’ within religious doctrine, rather than consider and

adjudicate on the strength of constitutional claims. In an interview shortly after the case, Bano spoke

about how she had been opposed by those who considered it one more step in the BJP’s attack on a

Muslim minority, expressing her hope that the decision would not be politicized. Speaking of the BJP’s

embrace of this judgment, she said, ‘It was a social fight, not a political one. It should not be made into

a political agenda’ (Rashid, 2017).

Despite this, in 2019, the BJP government promulgated first, an

ordinance, and then a stringent law, titled The Muslim Women’s (Protection of Rights on Marriage) Act

2019, by which it not only forbade talaq-e-biddat again, but criminalized it, adding a term of imprisonment

for three years, and a possible fine. A representative of the BMMA, which had argued in favour of the

judgment, was of the view that the law was ineffective and that criminalizing the practice did not resolve

the problem they were trying to address, which was to ‘…give a just and fair deal to women’, in the

course of divorce instead of embroiling them in a criminal suit (Ara, 2020). The Act, ironically, came

under criticism because it raises potential questions of discrimination, this time criminalizing the

abandonment of a marriage by a Muslim man, without having similar consequences for men belonging

to any other religion, where structures of gendered discrimination are also evident (Schultz, 2018). The

Bano has since joined the BJP as a state government minister (Press Trust of India, 2020).

Vakil 11

litigation on talaq-e-biddat, welcome and just, was the product of a hard-fought women’s campaign at

the Supreme Court. The law is instead one that operates to criminalize acts by one religious group alone,

even as the government not only refused to criminalize the same acts when committed by the majority,

but also consistently refused to intervene in legislating on the subject of marriage in other aspects, such

arguing that marital rape ought not be criminalized on the grounds that marriage is treated as a ‘sacrament’

by society (Ministry of Home Affairs, Government of India, 2015).

A similar conflict lies in the afterlife of the Sabarimala Temple case, in which the Central Government’s

Home Minister described the Kerala Government’s attempts to enforce the ban on discrimination in

entry as ‘suppression’ of the religious rights of the Hindu temple devotees (Special Correspondent,

2018). The criminalization of talaq-e-biddat was justified on the grounds that the Supreme Court’s ban

was not being implemented; on Sabarimala, the government took the position that the courts should ‘…

desist from pronouncing verdicts which cannot be implemented’ (Philip, 2018). The Supreme Court’s

own judgments in Shayara Bano, Sabarimala Temple, and the Babri Masjid, grounded in exceptionalism,

popular politics, and religion instead of constitutional law, provide no answer to these consequences.

The long afterlife of these judgements continues within the courtroom as well. In July 2019 Chief

Justice Dipak Misra, who had refused to engage with questions of maintainability during the Sabarimala

Temple case, dismissed a plea led by a Hindu political group, the Akhil Bharatha Hindu Mahasabha,

seeking a declaration to allow all Muslim women entry into mosques. Relying on the Sabarimala Temple

case, they argued that the practice of excluding Muslim women breached their individual fundamental

rights to religion under the Constitution. Chief Justice Misra was not convinced that they had established

such a practice existed to the Court’s satisfaction, but was more immediately concerned with their

standing. The petitioner, he held, had not ‘…satisfactorily established his credentials’, pointing to the

petitioner’s lack of prior PILs (LNN, 2019; Mandhani, 2019). ‘Let a Muslim woman challenge it’, he

was reported to remark, before accusing the petitioner of being motivated ‘…by a desire…to have cheap

publicity’ (LNN, 2019). In 2020, this was reversed yet again by the Supreme Court, which undertook the

exceptional move of agreeing to constitute an authoritative bench of nine judges to determine conflicting

questions of law and religion that were left undecided by Sabarimala Temple and Shayara Bano. The

reference, itself controversial for violating well-established constitutional procedure concerning reviews

of cases, will include a review of Sabarimala Temple case as well as hearing fresh claims about the

access of Muslim women to mosques, of Parsi women to Parsi temples, and against the practice of

female genital mutilation among the Dawoodi Bohra community (Supreme Court of India, 2020). As

review petitions in India are permitted on narrow grounds that relate to the original case alone, the

dissenting judges—and commentators—raised concerns that this combining of causes was unlawful and

would not allow Parsi and Muslim women petitions to effectively present their case. The Court responded

with a following judgment, ‘clarifying’ that the reference was justified, stating that ‘Being a superior

Court of record, it is for this Court to consider whether any matter falls within its jurisdiction or not’

(Supreme Court of India, 2020b).

The assertion that judicial discretion is absolute in this reference is the underlying, and now explicit

assumption, in Sabarimala Temple, Shayara Bano and Babri Masjid. A court that is answerable not to

law but its own authority can determine at will, who may or may not be a part of a suit, and by implication,

whose voice may be heard and considered in issues affecting wider unrepresented communities. In both,

Shayara Bano and Babri Masjid, the Court applies an ends-based reasoning to disregard, in turn,

procedure, evidence and law. In Shayara Bano, the outcome is to prohibit an enduring wrong, and in

Babri Masjid, the prohibition sustains enduring harm. In each of these three cases, the representation of

parties demonstrates a retreat from constitutionality and towards deepening judicial discretion.

Sabarimala Temple, in particular, attempts to undo the wrongs, by grounding such departures in the

12 Studies in Indian Politics

‘transformative potential’ of the Constitution, but makes the dangers of this self-evident. Justice

Chandrachud points out in Sabarimala Temple that ‘…. In a constitutional transformation, the means are

as significant as our ends. The means ensure that the process is guided by values. The ends, or the

transformation, underlie the vision of the Constitution’ (Supreme Court of India, 2020a, p. 153 per

Chandrachud J).

The inability to frame questions of conflict regarding religion as constitutional doctrine

is liable, he warns, ‘…to lead us to positions of pretense, or worse still, hypocrisy’ (Supreme Court of

India, 2020a, p. 153 per Chandrachud J). As the Supreme Court’s subsequent opinion in Babri Masjid

demonstrated, this principle is difficult to implement without a commitment to determining cases on the

basis of legal principles, as opposed to the demands of a select few voices.

Declaration of Conflicting Interests

The author declared no potential conicts of interest with respect to the research, authorship and/or publication of

this article.

Funding

The author disclosed receipt of the following nancial support for the research, authorship, and/or publication of

this article: The author received an honorarium from the Carnegie Endowment for International Peace (via a grant

from the Henry Luce Foundation) to research and contribute this article to a symposium on religion and citizenship

in India.

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