Could the recent spate of landmark Supreme Court judgements, termed by some as judicial overreach, simply have been the need of the hour?
Since Independence from the British Raj, it has been hard-wired into every educated Indian’s consciousness that the great Indian democracy stands on three pillars: The Legislature, which includes the Parliament and state assemblies, enacts the laws; the Executive, which includes the President, Prime Minister, Governors, Cabinet and government officers, implements those laws; and the Judiciary, which includes all the courts, upholds those laws.
All three of these pillars are supposed to be equally strong, serving their exclusive functions, in order for the institution of democracy to stand finely balanced.
Many intellectuals and socio-political observers across India are now suggesting that the balance has been disturbed. They have pointed out that the judiciary is steering the national discourse, as the last word on what is right and what is wrong for the country (traditionally the preserve of lawmakers), more than it has ever had in the 71-year history of Indian democracy. This has happened due to certain recent developments, which in turn have generated wide-ranging debates.
This notion probably took birth on September 6, when the Supreme Court decriminalised homosexuality between consenting adults by declaring as “manifestly arbitrary” Section 377 of IPC, the penal provision which criminalised gay sex.
In separate but unanimous verdicts, a five-judge Constitution Bench of Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra struck down the British era law insofar as it criminalised consensual sexual acts of adults in private.
Chief Justice Misra began reading out the eagerly awaited verdict, quoting German thinker Johann Wolfgang von Goethe who had said: “I am what I am, so take me as I am.”
AT LONG LAST
Misra said attitudes and mentality have to change to accept others’ identity and accept what they are, and not what they should be.
“It is the constitutional and not social morality which will prevail. An individual has full liberty over his or her body and his or her sexual orientation is a matter of one’s choice.
“Time to bid adieu to prejudicial perceptions deeply ingrained in social mindset. Time to empower LGBTIQ community against discrimination,” said the Chief Justice, giving a final ruling on an issue that has been embroiled in legal battles since 1994.
Section 377 will not apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians, the court said, clarifying that sexual act without consent and bestiality will continue to be an offence.
The bench said it was no longer an offence for LGBTIQ (lesbian, gay, bisexual, transgender/transsexual, intersex and queer/questioning) community to engage in consensual sex between two adults in private.
The verdict assumed extra significance as in an earlier round of litigation in 2013, the top court had reversed a Delhi High Court ruling decriminalising homosexuality. The Delhi High Court in July 2009 legalised homosexual acts between consenting adults.
Interestingly, in retrospect, the Supreme Court had set aside High Court ruling on December 2013, saying that it was for the legislature to look into desirability of deleting Section 377 of IPC.
However, the matter was resurrected in July 2016 when a fresh petition was filed by members of the LGBTIQ community and was marked to a Constitution Bench.
The recent verdict sparked street celebrations in the LGBTIQ community across the country. The film world and activists too expressed their joy.
An overwhelmed Ritu Dalmia said: “Today, for the first time, I feel we are living in a functional democracy. It is a good day for human rights, for the country and for the Constitution.”
West Bengal’s Manabi Bandopadhyay, India’s first transgender college principal, said the ruling will be “helpful for the next generation of LGBTIQ (community)”.
The verdict was, however, greeted in silence by most political parties barring the Congress.
“We join the people of India and LGBTIQ community in their victory over prejudice. We welcome the progressive and decisive verdict from the Supreme Court and hope this is the beginning of a more equal and inclusive society,” the Congress tweeted.
Congress Lok Sabha member Shashi Tharoor said the “government has no space in bedrooms”.
Before the Bharatiya Janata Party (BJP) could react, its ideological fountainhead, the Rashtriya Swayamsevak Sangh (RSS), said it agreed with the court’s view but did not endorse homosexuality.
“Like Supreme Court, we also do not consider this to be a crime. The same sex marriages and relations are not compatible with norms of nature. So, we do not support such relations.
Indian society also does not have the tradition to recognise such relations,” the RSS said in a statement.
OFF THE CARDS
Twenty days later, in another landmark judgement, the apex court upheld the legality of Aadhaar for use only in government-funded social benefit schemes and PAN and Income Tax Return (ITR) while junking its requirement for mobile phone connections, bank accounts, school admissions and competitive examinations.
A five-judge bench headed by Chief Justice Misra held that Aadhaar would be voluntary and not mandatory.
ejecting the apprehensions of the petitioners, the majority judgment held that the architecture of Aadhaar as well as the provisions of the Aadhaar Act do not tend to create a surveillance state. “This is ensued by the manner in which the Aadhaar project operates.”
In his dissenting judgement, Justice D.Y. Chandrachud held that the entire Aadhaar programme since 2009 suffered from constitutional infirmities and violated fundamental rights. The enactment of Aadhaar Act does not save the Aadhaar project.
The Aadhaar Act, the rules and regulations framed under it and the framework prior to the enactment of the Act were unconstitutional. “…if no fresh legislation has been enacted by the union government in conformity with the principles which have been enunciated in this judgment, the data (collected for Aadhaar) shall be destroyed.
Justice Chandrachud said that passing the Aadhaar law as money bill was unconstitutional and a “fraud on the Constitution” because it was not a money bill.
Speaking for the majority, Justice Sikri said linking of Aadhaar for opening and with existing bank accounts, getting a mobile number, appearing for CBSE, NEET, JEE, UGC examinations and admission in schools was not mandatory.
The court in its 1,448 page judgement said the government’s notification that rendered bank accounts inoperable for not being linked with Aadhaar amounted to depriving a person of his property rights.
“We find that this move of mandatory linking of Aadhaar with bank account does not satisfy the test of proportionality,” said the majority judgment.
Striking down Section 57 of the Aadhaar Act that allows private entities to demand Aadhaar to access their services, the court said that there would not be sharing of data with individuals and the corporate entities.
The Court held that the telecom department circular of March 2017, mandating linking of mobile number with Aadhaar, was “illegal and unconstitutional as it is not backed by any law and is hereby quashed”.
Calling the Supreme Court’s verdict a big victory, the Congress said the decision to strike down the Modi governments “surveillance tool” will put an end to the government’s “abuse of power”.
It said that through its judgment, the Supreme Court had firmly put an end to the “mass surveillance exercise being carried out under the guise of Aadhaar and the “grotesque distortion of an idea conceived by the UPA”.
ON ADULTERY
Terming the verdict as a breath of fresh air for Indian citizens, cyber law experts said a completely new regime has to be put in place to protect the Aadhaar data that is lying with private companies.
“The Aadhaar verdict is a huge sigh of relief for citizens. The humongous task now is to ensure that the data that is already with private companies is not misused or sold,” said Pavan Duggal, the nation’s leading cyber law expert.
While the national debate over this historic verdict was in full spate, two more came along in as many subsequent days.
On September 27, Supreme Court unanimously decriminalised adultery after striking down a British era law, Section 497 of the Indian Penal Code, terming it as unconstitutional, archaic and manifestly arbitrary.
“Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 of the Constitution,” the court said referring to the provision on protection of life and personal liberty.
“Mere adultery can’t be a criminal offence. It is a matter of privacy. Husband is not the master of wife. Women should be treated with equality along with men,” said Chief Justice Dipak Misra.
However, the court held that adultery would continue to be a civil wrong and could be one of the grounds for divorce.
Saying that a time has come to say that husband is not a master, Chief Justice Misra said: “A woman can’t be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master.”
Having declared Section 497 – a 158-year-old provision – as unconstitutional, the court also struck down Section 198 of the Code of Criminal Procedure being violative of Articles 14, 15(1) and 21 of the Constitution dealing with the right to equality before law.
Section 198 of the Code of Criminal Procedure deals with the procedure for filing a complaint in relation to the offence of adultery.
Most countries have abolished adultery as a crime, CJI Misra also speaking for Justice A.M. Khanwilkar, said: “Treating adultery as an offence, we are disposed to think, would tantamount to the state entering into a real private realm.”
“If it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce,” CJI Misra said.
He further said that for “any other purpose as the Parliament has perceived or may, at any time, perceive, to treat it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two.”
The “real heart of this archaic law”, Justice Rohinton Fali Nariman in a separate but concurring judgment said, “discloses itself when consent or connivance of the married woman’s husband is obtained — the married or unmarried man who has sexual intercourse with such a woman, does not then commit the offence of adultery.
“This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the licensor, namely, the husband, no offence is committed,” Nariman said pointing to how it was an outdated law.
Further, dwelling on adultery law being outdated, Nariman said: “What is clear, therefore, is that this archaic law has long outlived its purpose and does not square up with today’s constitutional morality, in that the very objective with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become today utterly irrational.”
If the husband consents or connives at such sexual intercourse, Justice Nariman said that the offence is treated as not committed, thereby showing that “it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband”.
Holding that the human sexuality is an essential aspect of identity and it cannot be construed purely as a physiological attribute, Justice D.Y. Chandrachud said it is an expression of the human desire to be intimate with a person of one’s choice.
“Sharing of physical intimacies is a reflection of choice” Justice Chandrachud said, adding: “Section 497 denudes the woman of the ability to make these fundamental choices, in postulating that it is only the man in a marital relationship who can consent to his spouse having sexual intercourse with another.”
He further said that Section 497 disregards the “sexual autonomy which every woman possesses as a necessary condition of her existence”.
POWER TO WOMEN
Far from being an equal partner in an equal relationship, Justice Candrachud said that married woman is subjugated entirely to the will of her spouse.
Holding that underlying Section 497 is a “gender stereotype that the infidelity of men is normal, but that of a woman is impermissible”, Justice Chandrachud said: “Equality of rights and entitlements between parties to a marriage is crucial to preserve the values of the Constitution. Section 497 offends that substantive sense of equality and is violative of Article 14.”
Saying that the society has two sets of rules — one for woman and other for man, he said: “The law on adultery is but a codified rule of patriarchy. Patriarchy has permeated the lives of women for centuries.”
Stating that society ascribes “impossible virtues to a woman and confines her to a narrow sphere of behaviour by an expectation of conformity”, Justice Chandrachud said that “raising a woman to a pedestal is one part of the endeavour but the second part is all about confining her to a space”.
“The boundaries of that space are defined by what a woman should or should not be. A society which perceives women as pure and an embodiment of virtue has no qualms about subjecting them to virulent attack: to rape, honour killings, sex-determination and infanticide,” Justice Chandrachud said.
On September 28, came another verdict from the Supreme Court that was for the cause of women’s empowerment. The court ruled that women in the age group of 10-50 could also enter the famed Sabarimala temple in Kerala, a decision that caused dismay among the devout.
In a majority 4:1 judgment, the apex court said the ban on women in the menstruating age group, whose presence in the Lord Ayyappa temple was considered to be “impure”, violated their fundamental rights and constitutional guarantee of equality.
Until now, girls below 10 years and women over 50 years were allowed to visit the hilltop shrine, located in the Western Ghats and about 130 km from Thiruvananthapuram. The temple is hugely popular in southern India.
While Justice Indu Malhotra, the only woman judge in the five-judge bench, gave a dissenting view, Chief Justice Dipak Misra, reading out the judgment, also on behalf of Justice A.M. Khanwilkar, said that subversion of women’s rights under the garb of physiological phenomenon cannot be allowed.
“All devotees are equal and there cannot be any discrimination on the basis of gender,” he said.
Justice Rohinton F. Nariman, in a separate but concurring ruling, said that people of all faiths visit temples – worshipers are not of separate denomination.
“The social exclusion of women, based on menstrual status, is a form of untouchability which is anthaema to constitutional values. Notions of ‘purity’ and ‘pollution’, which stigmatize individuals, have no place in a constitutional order,” said Justice D.Y. Chandrachud in a separate but concurring judgment.
Holding that the Sabarimala temple was not a denominational temple peculiar to any sect, the court said it belonged to Hindus and does not constitute a separate entity.
But Justice Malhotra said: “What constitutes essential practices of religion is to be decided by worshippers and it is not for the judiciary to adjudicate.
“It is not for courts to determine which of these practices of a faith are to be struck down except if they are pernicious, oppressive or a social evil like Sati.”
She added: “The court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practice one’s religion according to one’s faith and beliefs…
MORE ACCESS
“All followers must be allowed to follow their own faith as per their own beliefs in a secular polity.”
While a section of women hailed the court ruling, it drew sharp reactions from the temple’s ‘tantri’ (chief priest) K. Rajeevaru, who said the Travancore Devasom Board (TDB) will decide on an appeal challenging the decision.
Former TDB President G. Raman Nair called Friday a “black day” for Sabarimala.
“One can speak of equality and freedom but the verdict is breaking a tradition that was in existence much before the Constitution came into effect,” he said.
The President of the Ayyappa Seva Sanghom and a veteran Congress leader, Thennala Balakrishna Pillai, said while the rule of law has to be adhered to, the traditions, culture and ritualistic practices were equally important.
“I am yet to see one woman who said she will be going to the temple while several have said they will not,” he said.
A spokesperson for the Pandalam Royal Family, which has an integral role in the affairs of the Sabarimala temple, Sasikumar Varma, said the palace was disappointed with the verdict.
“The long-standing tradition of Sabarimala have been changed and that is very said,” he said. “Every religious place has its own traditions and culture which have their own reasons.”
P. Geetha, a teacher and a popular face in TV debates, welcomed the ruling.
“The verdict is welcome and all those women who wish to visit the temple can do so now,” she said.
While numerous activists and intellectuals have hailed these recent verdicts of the Supreme Court as progressive, there have been many who have disapproved of these decisions as judicial overreach. However, fortunately, the prevailing notion on this issue has been this: Had the legislature and executive been doing enough to drive the national discourse towards a better future at a fast enough pace, the judiciary would perhaps have no need to send timely reminders in the form of such historic verdicts.
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