Narratival Obscurity & the Erosion of Rule of Law: The Case of Indian Judiciary

• In Event: Courts and Gender Issues in a Comparative Perspective

Abstract

In controversial Muslim family law cases, the Indian Supreme Court (ISC) ornate its rulings with narratives (usually in the form of dicta) from multiple normative angles to elicit compliance from lower courts, religious authorities, and feminist and nationalist constituents.

The traditional hierarchy of the federal judiciary suggests that federal courts should faithfully implement the precedent of the apex courts by separating holding from dicta. This usually happens when clear, non-controversial narratives accompany the ISC rulings. However, over the last two decades, due to growing pressure from right-wing activists and the authoritarian Modi government, the ISC issued increasingly controversial rulings with a potpourri of obscure narratives. The trend reached its zenith in 2017 with the ISC’s Shayara Bano (SB) judgment.

How do lower court judges cope with the challenge of following ISC precedents with obscure narratives? How do activists who seek internal reform (e.g., Muslim feminists) respond to such judgments? The proposed paper will address these questions by utilizing data collected through interviews with over 100 Indian judges, attorneys, and activists and content analysis of nearly 2,000 court decisions dealing with Islamic divorces.

Focusing on post-SB case law, the paper will demonstrate that narratival obscurity creates challenges for lower court judges to decipher the legal meaning of apex court judgments and follow them as precedents. Instead, many judges resort to an “open buffet” strategy by liberally reinterpreting ISC rulings and constructing their own “precedents” with narratives that closely reflect their political and communal preferences. This, in turn, undermines the rule of law by further politicizing the judiciary and eroding public trust in the courts. Moreover, narratival ambiguity often derails internal reform within religious communities by denying cultural dissenters valuable feedback to harmonize their legal meanings while empowering conservative forces.

The current scholarship (Re, Denning) shows that lower courts in the US have often found ways to circumvent SCOTUS precedents by “narrowing from below.” The proposed paper builds on this literature and shows that beyond narrowing from below, lower courts also engage in “expansion from below” and implement their policy objectives by exploiting narratival obscurity in apex court judgments. Further building on the Narratology and Law literature, the paper attests to the importance of Coverian master narratives that often enter into apex rulings as dicta. They play a much more influential role in the practical implementation of stare decisis than most scholars care to appreciate by further blurring the holding/dicta distinction.

Author

• Yuksel Sezgin, Maxwell School, Syracuse University