For Mahmudabad's Bail Observations, We Cannot Blame Just the Supreme Court

The recent decision in the bail hearing of professor Ali Khan Mahmudabad re-emphasises the decade-long evolution of the Supreme Court from a broadly anti-majoritarian institution to a more executive friendly institution.

And while much is made of the role played by specific judges, and the pressures of an increasingly authoritarian government, what ails the judiciary today goes beyond the individual. The ongoing erasure of constitutional values in decisions in favour of the prevalent popular morality indicates that the gap between constitutional values and the values prevalent in society has become too big to be bridged top-down.

Constitutional morality versus popular morality

When Dr. B.R. Ambedkar presented the draft constitution of India to the Constituent Assembly in November 1948, he explained the rationale behind retaining detailed administrative law provisions in the constitution.

Constitutional morality, or a widespread acceptance of authority acting within the norms of the constitution, was, Ambedkar argued, not prevalent in India:

“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.” 

The constitution, therefore, provided that these democratic values would be imposed top down, with as little as possible left to local administrative discretion. If the government strayed from these values (as was always expected given its dependence on electoral popularity), the judiciary was to pull it back.  

Today, more than 75 years after the adoption of the constitution, it is fair to say that Dr. Ambedkar’s fears were not unwarranted. Despite constitutional guarantees of religious freedom and equality, Muslims in some parts of the country live under a quasi-apartheid system, where the state offers them neither equality before the law, nor the equal protection of the law. A collective made up of both state actors (including the police and municipalities) and non-state actors (like majoritarian “vigilante” groups) enforce increasingly arbitrary and blatantly discriminatory laws against them using both judicial and extrajudicial punishment, like physical violence and house demolitions.

Despite the constitutional prohibition of untouchability, Dalit people, in most parts of the country  (including states that have been at the forefront of anti-caste movements like Tamil Nadu) remain subject to caste atrocities. While specific aspects of democracy like universal adult franchise have been widely embraced and internalised, a broader moral evolution into a society internalising values like equality, religious freedom and a rejection of localised violence has not materialised. 

There is a tendency to blame institutions for this failure.

The tenures of specific judges in the judiciary are evaluated based on how well they upheld constitutional values (or how badly they eroded them). Legal scholars like Gautam Bhatia, while explaining the evolution of Supreme Court, argue convincingly on the element of choice. Judges, Bhatia argues, can always choose interpretations that advance liberty over state power, and some do. 

While this is no doubt true, it tends to overshadow a connected issue: the long-term success of this top-down enforcement of democratic values on an essentially undemocratic society depended on large-scale social reform that would bridge the gap between the prevalent on-ground morality and these constitutional values. Without this work, there was always the risk that instead of constitutional morality permeating downwards into society, popular morality would permeate upwards into the judiciary. 

Hindutva and popular morality

The politics of Hindutva is often described as running ideologically counter to the politics of caste. This is true in many ways. Caste, which within the Hindu fold, still determines what you eat, whom you eat with, whom you marry and what violence or discriminations you may be subjected to, remains both the primary marker of identity for most people who identify as Hindu and the basis on which they vote.  Hindutva on the other hand relies on political (or at least electoral) consolidation around a broader Hindu identity cutting beyond caste to assert numerical dominance.

While the politics of Hindutva requires unification across castes, it cannot seek the dismantling of caste in any meaningful way, because it remains ideologically committed to the “sanatana dharma”, where castes are separated by strict endogamy and commensality and associated with ranked differences of diet and occupation. While modernisation and urbanisation have altered caste relations to a certain extent, these practices have not substantially altered.  

To consolidate a voter base while preserving this inherently divisive social structure, Hindutva typically uses anti-Muslim violence as a glue. The methods of coercion used against Muslims, however, continue to draw on norms long legitimised in caste- based societies, including dehumanisation and violence. Hindutva violence against Muslims often replicates caste-violence with a new target. 

For example, in caste-based societies, dominant castes are permitted to restrict or disallow public religious or social processions undertaken by lower castes or prevent such processions from entering particular areas of villages. Despite legal protection, Dalit weddings and funeral processions are often still targeted in this manner by higher castes.

This form of coercion when applied against Muslims manifests as a clampdown on namaz being offered in public. Before Eid earlier this year, the police in parts of Uttar Pradesh warned Muslims not to conduct namaz on the roads or even on their own private rooftops, and deployed drones to monitor compliance. In other parts of Uttar Pradesh, mosques were covered with tarpaulin sheets by the state so as to invisibilise them during Holi. 

Further, castes are separated by strict endogamy. Over 90% of marriages in India remain caste endogamous. Pew Research noted in 2021 that over 64% of Hindus felt it was very important to prevent women from marrying across caste lines. When this is applied by Hindutva to Muslims, it manifests as “love jihad” conspiracy theories and coercion enacted against inter-faith couples. Interestingly, the percentage of Hindus (67%) who felt it was very important to prevent women from marrying across religious lines isn’t significantly higher than the percentage opposed to inter-caste unions. 

Traditionally, castes are also separated by commensality – the practice of sharing cooked food only within the caste or with castes of equal or higher status. While urbanisation and modernisation have modified the nature of this to some extent, the cultural focus on “pure veg” restaurants or vegetarian-only housing societies indicates that this remains important. This has been applied by Hindutva to Muslims. The last few years have seen widespread rumourmongering (including on the news) accusing Muslims of spitting into the food they prepare to discourage others from dining at Muslim owned or operated restaurants. It has also resulted in local regulations in some parts of the country requiring Muslim owned eating establishments to display the names of the owners and the workers. 

Finally, in traditional caste-based societies, legitimate violence is not reserved to the state. Historically caste groups enacting brutal violence to enforce caste norms also enjoyed broad social legitimacy, and sovereign sanction. This same framework is used by Hindutva groups to target Muslims. The starkest example of this has been in the enforcement of cattle slaughter laws. Muslims accused of cattle slaughter (or even just carrying meat) have been subjected to brutal and often fatal violence by non-state actors. The police (representative of the state in this example) are often bystanders to this violence. By refusing to intervene, and at times by working with these groups, the state de facto confers legitimacy to their violence. 

The similarity between caste violence and anti-Muslim violence is evident in news stories from the last week alone: a Dalit man in Gujarat was lynched for the basic courtesy of calling a caste Hindu boy “beta” (son) and four Muslim men were stripped and beaten brutally in Aligarh for transporting meat. 

Hindutva, unlike constitutional morality, therefore does not require a caste-based society to reform, alter its fundamental moral code, or reject the inherent brutality of the caste-system. It simply redefines or expands the permitted targets of this brutality to include Muslims. This means that in the absence of large-scale social reform challenging the core principles of caste-based segregation, dehumanisation and violence around which much of Hindu society remains organised, Hindutva will generally appeal to a broader section of society than constitutional values like equality or individual freedom. 

Institutions, which are at the end of the day made up of individuals drawn from the same society, are not immune to this tendency. What ails our judiciary today goes beyond the choices of individual judges, or even the pressures of an often authoritarian ruling government. It is the ongoing erasure of constitutional values in favour of the prevalent popular morality, by individuals within the judiciary who, due to their own social conditioning, no longer hold constitutional values to be paramount. While this tendency may be checked or reversed from time to time by specific judges, the broader trend is unmistakable. As the inherent social norms of a caste-based society are hardened, formalised and legitimised by the Hindutva state, challenging them judicially will only become more difficult. 

Eradicating the social legitimacy conferred on the oppressions of caste-based society (whether enacted against oppressed castes or minorities) is far easier said than done. It is worth noting that even in states with very successful redistributive anti-caste movements, like Tamil Nadu, caste violence by dominant backward castes against Dalits remains prevalent. And yet, difficult or not, wide-spread social reform must be put back on the agenda. Understanding that institutions cannot be permanently kept secure from the prejudices of the society they operate in, also means that understanding institutional reform cannot be discussed in isolation from social reform. 

Sarayu Pani is a lawyer by training and posts on X @sarayupani.

Missing Link is her column on the social aspects of the events that move India.

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