The Constitutional Burden of the Global Imagination (I-CONnect Column)

—Menaka Guruswamy, Fellow, Wissenschaftskolleg zu Berlin and Advocate, Supreme Court of India

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

The global political imagination is converging – incredibly so. Across varied lands spanning diverse development markers in the liberal constitutional democratic world – the political imagination of the voting public is showing a marked convergence. The ingredients of this convergence – discontent with social and economic inequality (including but not necessarily anti-globalisation), Islamophobia, an anti-immigrant platform, a disdain of mainstream media as a source of news and anti-intellectualism.

Much of this political convergence strains the constitutional fabric of liberal jurisdictions. These jurisdictions like the United States, Western Europe, India, South Africa amongst others have legal traditions located in non-discrimination, equal treatment, freedom of expression, multiculturalism and/or secularism. The manifestation of this convergence includes Britain Brexiting from Europe, a Trump Presidency, the rise of the far right in France, Hungary and (to lesser extent) Germany and the electoral consolidation of Hindutva politics in India. In Marine Le Pen’s words, “a new world has emerged in the past years. This is Vladimir Putin’s world, Donald Trump’s world in the United States and Mr Modi’s world in India” (The Guardian, March 24, 2017).

This convergence has many catalysts – including an economic catalyst in inequality and a lack of jobs. The message of Le Pen, Trump and Modi resonates through troubled economies. India’s largest selling English newspaper, The Times of India wrote ominously on February 9, 2016 that between 2005 and 2012, India’s Gross Domestic Product (GDP) growth was 54% but its net job growth was only 3%. Essentially only 15 million net new jobs were created in that time. Further, assuming a 7-8% annual growth, India’s GDP would double by 2025 However, while the country will add over 80 million net new job seekers, only 30 million net new jobs – mostly informal and low-wage ones – will be created.

With the Indian state doing little to create the scale of jobs that are needed, it now has chosen to deflect the blame, and re-focus the aspirations of young people. It has done so by changing its own messaging from economic development to blaming Muslims, and a rapidly growing list of dangerous Others – like romancing couples, legal slaughter houses and non-vegetarians. In the United States, this reorientation is reflected in new policies like travel bans against visitors from specific Muslim majority countries and a demonization of immigrants.

In times such as these, constitutional courts are expected to play a defining role – i.e. that of checking majoritarianism in the vision of Samuel Issacharoff. This is when democracy may conflict with constitutionalism. Courts respond in different ways. Recently far-right groups in France, Germany and Holland welcomed the decision of the European Court of Justice (ECJ), which decided that companies would be allowed to ban staff from wearing visible religious symbols, but only as part of a general policy barring all religious and political symbols (The Guardian, March 14, 2017). However, the ECJ also added that customers could not simply demand workers remove headscarves if the company has no general policy barring religious symbols. This case had been bought by two women, from France and Belgium, who wore the headscarf to work and refused to remove them. Was the ECJ being strategic given that Europe is a Le Pen win away from disintegration?

In India, the Supreme Court has over the last few decades distinguished itself as the “most powerful court in the world” (Clark D. Cunningham) and as crafting a jurisprudence of “transformative constitutionalism,” in the words of Karl Klare. The markers of this jurisprudence include creating large scale rights for education, food, livelihood and environment. The Court has always waded deep into political questions of all kinds – from creating an unamendable basic structure to even monitoring large scale criminal investigations. This kind of deployment of constitutional interpretation to do the job of the executive and the legislature has endeared the Supreme Court to the public and made it a mainstay of the front pages of every newspaper.

Therefore, will the Court also wade into unpopular terrain? The Indian Supreme Court has had on its docket a case that involves the demolition of the Babri Masjid mosque and the attempted building of a Ram Mandir temple in its place. This dispute also occupies a prominent position in the political imagination of India. The dispute is located in Ayodhya, Uttar Pradesh where it is believed that the Hindu god Ram was born and where the Babri mosque is located. It is alleged that this mosque was built over the temple commemorating the birth of the God Ram. These amongst others will be legal matters for the Court to ascertain.

On December 6, 1992 Hindu right wing parties including the now ruling Bharatiya Janata Party (BJP) and others organised a rally that turned violent and led to the Babri mosque being attacked and destroyed. This took place after the then BJP State Government had assured the Supreme Court that the mosque would not be harmed in any way. The riots that ensued after the demolition of the Babri mosque resulted in over 2000 people being killed in India.

The Allahabad High Court ordered a three-way division of roughly 15,000 square feet occupied by the mosque before its demolition. Therefore, one-third of the property would go to Sunni Waqf Board (body administering the property of the Mosque) one-third for the Nirmohi Akhara (a Hindu Vaishnavite sect that is reported to have filed a suit relating to this dispute way back in 1895) and one-third to the party for Ram Lalla (petitioners representing the infant God Ram). It is this decision (spanning 8000 pages) that has been appealed to the Supreme Court. The case also has the making of a classic historical novel – records dating to the 16^th century written in several languages including Arabic and Persian and legal suits pertaining to title initiated shortly after Indian independence in 1949.

On March 21, 2017 a Parliamentarian of the ruling BJP, who has also filed an intervening suit in this case, asked the Supreme Court to hear the case on an expedited basis. In response the Chief Justice said that since the case involved matters of “sentiments and religion” the parties should consider an out of court settlement – and “to give a bit, take a bit.” The Chief Justice even offered to play the role of mediator between the parties (Utkarsh Anand, Indian Express, March 22, 2017). The court has asked for an update on the situation on March 31. Importantly, the BJP overwhelmingly won the recently concluded state elections in Uttar Pradesh, which has 200 million inhabitants. The Chief Minister appointed by the party is a staunch Hindu nationalist and the head of the Gorakhnath temple in the region.

This case will determine whether the court is prepared to engage in legally appropriate adjudication, or avoid deciding the case by continuing to urge an out of court settlement. This case is no ordinary property dispute: it has the potential to make or break India’s secular constitutional fabric and will define the legacy of the Indian Supreme court.

The approach adopted by the Supreme Court will decide whether India will endure as a constitutional democracy or simply become a populist democracy. Over the years the Supreme Court has justified its unique system of judicial appointments, where senior judges appoint justices to it, excluding input from the executive, by insisting that the Court needs to be insulated from political pressure. Now the court must make good on its insulated status – and have courage to be unpopular if necessary – while upholding the rule of law and the Constitution.

Suggested citation: Menaka Guruswamy, The Constitutional Burden of the Global Imagination, Int’l J. Const. L. Blog, Mar. 29, 2017, at: http://www.iconnectblog.com/2017/03/the-constitutional-burden-of-the-global-imagination-i-connect-column/