We tend to wish that judges interpret the law like scientists study nature — impartially, analytically, almost anti-socially, in a secluded realm of fact measured against abstraction. The recent judgments in the rape and murder cases of Jyoti Singh and Bilkis Bano have given many causes to claim that this ideal has been betrayed. If it has, however, the fault may not lie with the judges alone.
The defendants in the rape and murder of Jyoti Singh have received the death sentence in a Supreme Court judgement, which refers to “savage lust” and “bestial proclivity” taking a “demonic form” in an event that amounted to a “tsunami of shock in the minds of the collective” and that “destroyed humanity”. Under the pressure of public rage, these judges opted to depict the accused with subhuman imagery, and to sentence them to the death penalty. Singh’s case was prosecuted in four and a half years.
As for Bilkis Bano, a victim of gang rape during the Gujarat riots, it took 15 years for only a state-level judgment. The judges of Bombay High Court rejected the charge of conspiracy, describing the attack as “spur of the moment” despite also saying the attackers were “hunting for Muslims”, and sentenced the perpetrators not to the death penalty — as the CBI recommended — but rather to life in prison. Bano had received little of the intense public attention devoted to Jyoti Singh.
In Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, American legal scholar David Cole argues that some of the most important recent Supreme Court decisions in the US have, for better or for worse, been the product of sustained campaigns of public activism and advocacy.
In 1972, before most Americans were likely familiar with the concept of gay marriage, the Supreme Court replied to an appeal regarding it with a curt, sentence-long dismissal. Fourteen years later, it ruled that states could make gay sex a crime. Meanwhile, the AIDS crisis was encouraging an unprecedented degree of organisation and agitation in the American gay community. The social movement that was born found a legal counterpart in organisations like Freedom to Marry, which raised millions of dollars to fight cases related to gay marriage. By 2015, in a society with tremendously changed attitudes, gay Americans had gained a new constitutional right.
Few would say that the influence of civilian activism on constitutional law is entirely benign. Many supporters of gay marriage deplore America’s skimpy regulation of guns, for example, but Cole shows that civil society groups were equally responsible for causing the Supreme Court to dramatically reinterpret gun rights.
In 1990, a former Republican member of the Court was reflecting conventional wisdom when he dismissed the idea that there was an “individual right to bear arms” as “one of the greatest pieces of fraud… on the American public by special interest groups that I have ever seen in my lifetime.”
In 2008, however, after a long and expensive legal campaign run largely by the National Rifle Association — an organisation that commands an annual budget of about a quarter of a billion dollars and boasts three-to-five million members — the Supreme Court ruled the right to bear arms to be constitutional.
The new rights won by gay people and gun owners in the US came at the same time that each group newly asserted itself and won political power.
The text of the law at any given time is fixed, but its meaning and application remain a social fact.