Representation and Legitimacy in the Supreme Court: Adjudicating Law and Religion in India
| Author | Raeesa Vakil |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| DOI | http://doi.org/10.1177/23210230221083064 |
| Subject Matter | Special Section: India @75: Religion and Citizenship in IndiaArticles |
Representation and Legitimacy
in the Supreme Court:
Adjudicating Law and
Religion in India
Raeesa Vakil1
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 on litigation
Article
1 Yale Law School, New Haven, CT, USA.
Corresponding author:
Raeesa Vakil, Yale Law School, New Haven, CT 06511, USA.
E-mail: raeesa.vakil@yale.edu
Studies in Indian Politics
10(1) 48–61, 2022
© 2022 Lokniti, Centre for the
Study of Developing Societies
Reprints and permissions:
in.sagepub.com/journals-permissions-india
DOI: 10.1177/23210230221083064
journals.sagepub.com/home/inp
To continue reading
Request your trial