The Blog

Forget the Lok Sabha: All Eyes on the Supreme Court

India's marathon election draws to a close in the coming weeks. While observers caution that opinion polls in this vast nation can often be inaccurate, many expect controversial opposition candidate Narenda Modi, of the Bharatiya Janata Party (BJP), to become the nation's next Prime Minister.

India's marathon election draws to a close in the coming weeks. While observers caution that opinion polls in this vast nation can often be inaccurate, many expect controversial opposition candidate Narenda Modi, of the Bharatiya Janata Party (BJP), to become the nation's next Prime Minister.

This is noteworthy mainly in that his primary challenger is the candidate of the ruling Congress Party, Rahul Gandhi, who hails from India's premier political dynasty and was expected to provide rather more robust competition to Mr. Modi. However, it is otherwise unremarkable, in that a candidate from either BJP or Congress has been in power for 20 of the last 25 years.

Much external attention has been focused on the sheer number of registered voters (814 million, nearly equal the entire population of the United States and all member states of the European Union, combined), as well as the unique challenges of campaigning in a country and vast and differentiated as India (there are at least 447 mother tongues spoken in the sub-continent). Journalists have also had fun detailing the criminal backgrounds of various parliamentary candidates, at least 20 of whom are accused of murder.

While an election in the world's largest democracy is certainly newsworthy in and of itself, it is not clear if a change in leadership will herald any substantive changes in Indian domestic or foreign policy. Critics often point to corruption and an entrenched, sclerotic bureaucracy as two of India's most pressing domestic problems. In the realm of foreign policy, India's blind adherence to the tenets of the Non-Aligned Movement leave it increasingly isolated from some of its important allies and trading partners.

Indeed, India recently abstained from a vote undertaken in the United Nations General Assembly in response to the Crimea crisis (reaffirming the "territorial integrity" of Ukraine), which was surprising to some observers, given India's own skirmishes with its neighbours over similar concerns. However, for a country often lauded for its democratic character, India has a fairly disappointing voting record in UN bodies of demonstrating support for democratic initiatives elsewhere.

For example, at the most recent UN Human Rights Council session in March 2014, India again abstained from a vote urging the Government of North Korea to "ensure respect" for freedom of thought, religion and expression, and asking the government to "promote equal access to food." Given that the "right to food" has been a major pillar of Manmohan Singh's domestic policy, this abstention with regards to the long-suffering citizens of North Korea is disconcerting.

Though India's domestic governance and foreign policy may be somewhat disappointing, there is one branch of government which does not shy away from tackling divisive topics: the judiciary. India's Supreme Court continuously pushes boundaries to ensure this deeply conservative country benefits from an expansive interpretation of human rights. Its decisions often enshrine progressive protections which are unimaginable even in "enlightened" western societies.

Most recently, it has been hailed for its landmark ruling recognizing transgender persons as a "third gender." Not only will this have a vitally important long-term societal impact--as it promotes acceptance of those who identify as "other"--but may have a more immediate economic impact on as many as two million people, as they are subjected to preferential treatment for recognized minorities. (Two million may seem laughably insignificant in a population of 1.2 billion, but it's all a question of scale. In Switzerland, the Supreme Court's decision would impact 25% of the population, and in Singapore, nearly 40%.) More widely, the decision could serve as inspiration for other countries also looking to address questions of LGBT rights.

This is not the first time the Supreme Court has taken an activist stance in addressing pressing social concerns. The Court's interventions on behalf of India's generic drug manufacturers in patent disputes with multinational pharmaceutical companies are well-documented, and perhaps even more controversial than questions of gender identity. While there are important legal issues at stake here regarding the protection of intellectual property rights, access to affordable medical treatment is no less important in a country where nearly 500 million people live on $1.25 a day, and 70% of the population is without health insurance.

Presently, the Court is revisiting a controversial decision from December 2013 in which it overruled a 2009 Delhi High Court decision that had decriminalised consensual gay sex. The High Court had invalidated Section 377 of the Indian Penal Code (which prohibited sexual acts "against the order of nature") for being discriminatory; the Supreme Court's December 2013 decision ruled that this was an issue better left to the legislature. While it is impossible to know whether the Supreme Court will, in effect, overrule itself on this hot-button issue, it must be noted that this is a remarkably quick reconsideration of a case decided a mere six months ago. The Indian court system is infamous for its backlog of cases, with nearly 30 million pending by one estimate.

By mid-May, Indians will know who their new Prime Minister is, and which political parties have gained control of Parliament. Hopefully, the domestic agenda and foreign policy priorities will be reassessed in the coming months, and the new Indian government will decide to use the influence accorded by the sheer size of its population as force for good in the world. But should changes still be slow to come in the political sphere, India's citizens should take solace in the activism of its judiciary.