The chapter examines the relationship between India’s higher judiciary judgments on affirmative action benefits and the response of the Hindu Right to religious conversion. It makes three arguments: First, progressive court interventions can be impeded by restrictive constitutional provisions. India’s judges are hamstrung by the embedded contradiction in the law, which, in its pursuit of one constitutional goal (social justice) has undermined another (religious freedom). Second, even if judges aspire to implement the spirit of the law, and try to provide an equitable result to these groups, their efforts need not produce positive social change. Third, contrary to the view that apex courts produce moderating effects in the arena of religious freedom, judgments have unintended and deleterious impact on religious toleration and may deepen polarization. The empirical analysis highlights this argument by examining the impact on the access of religious converts from Scheduled Caste and Scheduled Tribe groups to affirmative action benefits in 80 religious conversion cases from 1950-2006 in India's higher judiciary. It scrutinizes the Hindu Right's historical and contemporary responses (in parliamentary debates, newschapter reports, and interviews), to these judgments and highlights the unintended consequences of the courts' decisions, namely religious polarization.

“Compelling action by authorities of the states through the power of mandamus is an inherent power vested in the judiciary,” said India's Prime Minister, but warned that “substituting mandamus with a takeover of the functions of another organ may, at times, become a case of over-reach…these are all delicate issues which need to be addressed cautiously.” Manmohan Singh was speaking at a conference of regional chief ministers and high court chief justices in April 2007. A similar point was made by a former Chief Justice of the Supreme Court in March 2007 who cautioned the courts on legitimate and illegitimate intervention; and also by the Speaker of the legislature who said, “I will be failing in my duty if I do not point out that there has been an encroachment in the legislative arena.” These cautionary words from the heads of the legislature, executive, and the judiciary imply that the Indian courts have not just been activist, but over-activist. Is that true?

In the last two decades, the higher judiciary in India transformed non-justiciable economic and social rights such as basic education, health, food, shelter, speedy trial, privacy, anti–child labor, and equal wages for equal work into legally enforceable rights. In a famous judgment on the right to education, the judges even said that a right could be treated as fundamental even if it was not present in the fundamental rights section of the constitution.