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Imprints of Justice Ruth Ginsburg on India’s Supreme Court


Justice Ruth Bader Ginsburg has left a strong legal legacy upon her demise. Her contribution to feminist and racial jurisprudence impacted not just USA but also the Supreme Court of India writes PRASHANT PADMANABHAN.

———–

“Dear Justice Ginsburg, 

My name is Sophia, I’m 8 years old and in second grade.  I asked for a picture of you on my birthday cake because you help make people be treated equally…” 

This is a letter written in 2018, by eight-year-old Sophia Spataro to Justice Ruth Bader Ginsburg (RBG) of the United States Supreme Court.  

People gathered in large numbers at the court building to pay respect when legendary Justice Ginsburg succumbed to cancer on September 18, 2020.  At 87, she was the oldest among sitting Justices of that Court.  Having served the US Supreme Court since 1993, she was only second in seniority to Justice Clarence Thomas, who is still there since 1991.     

RBG was 60 when she was appointed to the US Supreme Court in 1993 by President Bill Clinton and she was in office till her passing away.   

Before her service on the Court of Appeals for the District of Columbia, Ginsburg taught as a full professor at Columbia University School of Law and Rutgers University School of Law and worked for the Women’s Rights Project (WRP), a part of the American Civil Liberties Union.  She lived up to the finest traditions of American law and citizenship.

If Justice Leila Seth had been a Judge in the Indian Supreme Court, for a similar tenure like Justice Ginsburg, we would have got a powerful feminist jurisprudence in India as well.   

‘Ginsburg was a product of her times’ as rightly observed by Indira Jaising. Through that article, Ms.Jaising stressed the differences in India and supported it with the narration of her own hardships in realising justice for the marginalised, weak and women facing gender and religious discrimination in India.   

This is a humble attempt to draw attention to the influence of RBG on Indian Courts. The causes for which Ginsburg fought in the US are not different from what Jaising fights for in India or Asma Jahangir fought for in Pakistan. If Justice Leila Seth had been a Judge in the Indian Supreme Court, for a similar tenure like Justice Ginsburg, we would have got a powerful feminist jurisprudence in India as well.   

(Ruth Ginsburg swearing-in ceremony with President Bill Clinton and husband Martin Ginsburg. Source: Wikipedia)

The average number of years that Justices have served in the US SC is 16 years and in comparison, RBG had a long tenure of 27 years.  While nominating her, President Bill Clinton, said:“Ginsburg’s contributions toward women’s equality were influenced in no small way by the second-class treatment she had received throughout her career—in college, law school, and the professional world. Having experienced discrimination, she devoted the next 20 years of her career to fighting it and making this country a better place for our wives, our mothers, our sisters and our daughters. Many admirers of her work say she is to the women’s movement what former Supreme Court Justice Thurgood Marshall was to the movement for the rights of African Americans.”

She thanked President Clinton and vowed to strive hard to live up to the expectations.  After introducing her life partner and best friend Martin Ginsburg and two children, RBG mentioned that she wants to thank one more person, the bravest and strongest person she has known, her mother Celia Amster Bader, saying, “I pray that I may be all that she would have been having she lived in an age when women could aspire and achieve and daughters are cherished as much as sons.”

That tribute brought tears to the President’s eyes, after all, he was raised by a single mother. 

RBG never forgot her mother’s advice to be independent: “It would be very nice if you met Prince Charming, married, and lived happily ever after. But, always be prepared to be self-standing, to fend for yourself.”

RBG’s firm belief was that she did not fight for women’s rights, but for the constitutional principle of the equal citizenship stature of men and women. 

When RBG was appointed to the United States Supreme Court, there was already Associate Justice Sandra Day O’Connor, the first woman appointed by President Reagan on the Bench.  Thereafter Sonia Sotomayor and Elena Kagan were appointed by President Obama.  

“When will there be enough women on the United States Supreme Court?”, RBG was asked once and her reply has made headlines: “When all nine seats are filled by women judges”.  Her logic was simple, ‘there had been nine men on the Bench and nobody ever raised a question about that’.  

RBG’s firm belief was that she did not fight for women’s rights, but for the constitutional principle of the equal citizenship stature of men and women.    This ideology is reflected in all her opinions on the Bench, whether in the majority or in minority.  It is this firm commitment to the dignity of individuals, equal citizenship irrespective of race or gender,  which made her the darling of the liberals.   

Justice Ginsburg is the first Judge of the US Supreme Court to have officiated a same-sex marriage in 2013.  She leaned heavily on the word “Constitution”.  Thereafter, Justices Elena Kagan and Sandra Day O’Connor have also officiated same-sex marriages.  

 

(From left to right: Justice Sandra Day O’Connor, (Ret.), Justice Sonia Sotomayor, Justice Ruth Bader Ginsburg & Justice Elena Kagan in the Justices’ Conference Room prior to Justice Kagan’s Investiture. Source: https://www.supremecourt.gov/)

Imprint of Justice Ginsburg in India’s  Supreme Court

How important is a Judge of the US Supreme Court and particularly Justice Ginsburg to India!  Let me make an attempt to explain it in commoners’ language.   

The United States is the oldest living democracy in the world and the Supreme Court is part of its written Constitution.  The Fundamental Rights chapter in the Indian Constitution is a feature borrowed from the US Constitution. Changes have been made to suit the Indian conditions and to address certain issues like caste, child labour, untouchability, opening up of Hindu temples to all classes of Hindus, and so on.  

Our Courts used to cite the judgments of the US Supreme Court on issues affecting fundamental rights. This happened in the famous Maneka Gandhi case, wherein the Indian Supreme Court held that the right to life is not mere animal existence but right to live with dignity and that the procedure by which that can be infringed by the State must be just, fair and reasonable.  For holding that, the Indian Supreme Court not only compared it with similar provisions in the US Constitution but also referred to several US Supreme Court decisions. 

The opinions of Justice Ruth Bader Ginsburg, even her minority opinions, find a place in a couple of such Indian decisions. 

Some of the most important concepts like “separation of powers” between the three organs of the Government-Legislature, Executive and the Judiciary found resonance in the early decision of the US Supreme Court in Marbury versus Madison in 1803.   “Judicial Review” of legislation, declaration of law in conflict with a Constitutional provision to be ultra vires the Constitution,  came from that decision. 

The Indian Constitution incorporated the concepts of ‘separation of powers’ and ‘judicial review’ through various provisions and the overall structure of the Constitution.   As per the 13-bench judgment of the Supreme Court in Kesavananda Bharati case in 1973, ‘separation of powers’ and ‘judicial review’ are basic features of the Indian Constitution, which cannot be taken away, even by way of an amendment to the Constitution.  

(Justice J S B Sinha)

The Indian Supreme Court has relied on the judgments of the US Supreme Court an umpteetn number of times. The opinions of Justice Ruth Bader Ginsburg, even her minority opinions, find a place in a couple of such Indian decisions. 

In Anuj Garg case the Supreme Court was dealing with the issue of discrimination of women from working in public places serving liquor.  The judgment of Justice S.B. Sinha in that case heavily relies on the opinion of Justice Ruth Bader Ginsburg in the United States versus Virginia 518 US 515 (1996) as to how the Court should look at differential treatment on the basis of gender. 

“Sex classifications may be used to compensate women ‘for particular economic disabilities they have suffered’, to ‘promote equal employment opportunity’, to advance full development of the talent and capacities of our nation’s people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”

In Ashoka Kumar Thakur v. Union of India Chief Justice K.G.Balakrishnan, while dealing with the issue of discrimination, relied on the statement by Justice Ruth Bader Ginsburg at the Fifty-first Cardozo Memorial Lecture in 1999:

“In my view, comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights. We are losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups. For irrational prejudice and rank discrimination are infectious in our world. In this, reality, as well as the determination to counter it, we all share.”

While discussing the topic of affirmative action, Justice S.B.Sinha delved deep into a similar discussion in the US SC on the issue of “race” and relied on the opinion of Justice Ginsburg…

In Ashoka Kumar Thakur case, the Indian Supreme Court dealth with the issue of 27% reservation for OBCs in State-aided institutions. It is no wonder that the Supreme Court drew inspiration from the views of Justice Ginsburg, a champion of liberal values.  

In E.V.Chinnaiah v. the State of A.P. the Supreme Court of India was dealing with the issue of reservation and the fact that the benefit of reservation was not percolating down to the most deserving class among the scheduled castes.   While discussing the topic of affirmative action, Justice S.B.Sinha delved deep into a similar discussion in the US SC on the issue of “race” and relied on the opinion of Justice Ginsburg that the Constitution is color-conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination.   

Similarly in Saurabh Chaudri v. Union of India the Court was concerned with the validity of reservation in Government-run medical colleges based on domicile.  While agreeing with the majority that such reservation was permissible, Justice S.B.Sinha shortly referred to the minority opinion of Justice Ginsburg in Gratz v. Bollinger, wherein she drew a line to distinguish between, policies of oppression and measures designed to accelerate de facto equality.    While the majority of judges declined to apply the “strict scrutiny” criteria adopted by the US SC, J.Sinha held that even applying such a test, institutional reservation should not be done away with.  

(Chief Justice K G Balakrishna)

In Navtej Singh Johar v. Union of India, the Supreme Court of India read down Section 377 IPC to decriminalise consensual adult sex of whatever sexual orientation in privacy. Dr. Justice D.Y.Chandrachud relied on the minority view of Justice Ruth Bader Ginsburg (along with Justice Sonia Sotomayor) in Masterpiece Cakeshop v. Colorado Civil Rights Commission.   Justice Ginsburg held in that case: “When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding-not a cake celebrating heterosexual weddings or same-sex weddings-and that is the service Craig and Mullins were denied.” 

In K.S. Puttaswamy v. Union of India, (Privacy case-9Judge Bench) Dr. Justice D.Y.Chandrachud relied on the minority judgment of Justice Ginsburg in Minnesota v. Carter (142 L Ed 2d 373). 

Ginsburg, J. wrote the dissenting opinion joined by Stevens and Souter, JJ. Wherein it was held that “Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. Through the host’s invitation, the guest gains a reasonable expectation of privacy in the home.”

India’s Supreme Court is presently seized of the challenge to the Citizenship Amendment Act, 2019.  The minority opinion of Justice Ginsburg in Trump v. Hawaii will be cited before the Supreme Court of India, irrespective of whether the SCI finds favour with that view or not.   In that case, the majority found no illegality in President Trump’s travel policy.  The minority opinion of Justice Sonia Sotomayor to which Justice Ginsburg agreed, reads, inter alia: “The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment.”

That view is applicable in India because secularism is a basic feature of the Indian Constitution as well.  

(Justice D Y Chandrachud)

Absence of Justice Ruth Bader Ginsburg during the Presidential Elections, 2020: what it means for the US and to the world?

Once appointed to the Supreme Court of the United States, the judge will be one of the nine who together have the final say on all constitutional matters. Recently, the US SC was split in a thin majority of 5:4,  Chief Justice John Roberts, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh on the one side (siding often with conservative viewpoint) and  Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan on the other side (liberal view).  

The process to elect the 46th President of the US is underway and unless the Election result is unambiguously clear, the dispute is bound to reach the US Supreme Court. As per the 20th Amendment to the US Constitution, adopted since 1933, the term of President Trump ends on January 20, 2021.  It is necessary to have the President-elect to be in the office by January 21, 2021  

Bush v. Al Gore 2000 judgment

Twenty years ago, in such a situation, there was a dispute with regard to the Election to the office of the President, between Al Gore and George Bush Jr.   The case came up before the US SC, wherein the Supreme Court by majority reversed the judgment of Florida Supreme Court and stayed the order to recount the votes.   

Justice Ginsburg in her dissenting opinion explained that the interpretation of State law ought to be left to the State Supreme Court.  She held: “In sum, the Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States. I dissent.” 

It is not only the nation’s (US) confidence in the judge as an impartial guardian of the rule of law which is at stake, but the entire world is keenly watching this Election.  

Her colleague on the Bench, Justice John P. Stevens (also dissenting) wrote “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Today, the US SC is devoid of its strongest dissenting voice and if the vacancy on account of the demise of Justice Ginsburg is filled up by President Trump, as his team has already indicated, there are chances that he will remain in office for another term, unless the Election results are unambiguously against him. It is not only the nation’s (US) confidence in the judge as an impartial guardian of the rule of law which is at stake, but the entire world is keenly watching this Election.  

Just days before her death, Justice Ruth Bader Ginsburg dictated this statement to her granddaughter Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.”

Humans are fallible and finite, but it is hard to find a replacement for Justice Ginsburg now, let us wish that it happens only after January 21, 2021. 

 

(Prashant Padmanabhan is an advocate, Supreme Court of India. Views are personal.


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