Mixed signals from court
BRP Bhaskar
India’s powerful Supreme Court, which, generally speaking, has been conservative on social issues, confounded orthodox elements recently with a series of landmark judgments.
Last month it decriminalised adultery and gay sex, which were punishable under the Indian Penal Code, introduced by the British colonial administration a century and a half ago.
Human rights groups, especially those voicing the demands of sexual minorities, had been seeking changes in the law for some time. Public opinion on the issue was not strong enough to compel the government to accept the demand and change the law.
When the matter was brought before it, in a break with the past, the Supreme Court took a liberal view in the light of the personal freedoms which the Constitution guarantees to all citizens. In effect, the recent judgments have taken the Indian legal system out of the confines of Victorian morality in which the British had set it.
Last year the Court, by a 3-2 verdict, declared instant triple talaq unlawful. While two judges said it was inconsistent with the Constitution, a third judge struck it down on the ground that it was against the Sharia and the basic tenets of the Koran. Last week the court, rejecting the arguments of a section of Hindu orthodoxy, overturned a supposedly traditional practice of barring women of the 10-50 age group from trekking to the Sabarimala shrine nestling in the Western Ghats.
Chief Justice Dipak Misra, who delivered the main judgment, said the bar was a clear violation of Hindu women’s right to practice religion. Interestingly, the lone woman on the five-member Constitution Bench, in a dissenting judgment said the question was one of faith and the court could not go into it.
The Preamble of the Constitution, which outlines its objectives, grants primacy to “justice — social, economic and political”. As the sole authority for its interpretation, the Judiciary is the ultimate arbiter of what is constitutional and what is not.
Initially, the higher courts took care not to upset powerful elements. When a petitioner belonging to a so-called upper caste approached them claiming she could not get admission in a medical college because of the reservations favouring backward communities and arguing that the reservation system was against the principle of equality enshrined in it, they readily accepted it.
To get over the courts’ objections, Parliament amended the Constitution and added a proviso that permitted special provisions for socially and educationally backward classes of people. The Supreme Court upheld the amendment.
Later on the Judiciary moved forward to ensure political justice by coming down on authoritarian acts of the Executive. There was a setback when Indira Gandhi’s government declared an Emergency and the apex court upheld its contention that it could suspend all fundamental rights, including the right to life.
On economic justice, the court inevitably lagged behind as the expensive legal process is weighted in favour of the rich and casts a disadvantage on the poor.
If the recent Supreme Court judgments on social issues have warmed the hearts of the liberals, some decisions with a bearing on civil and political rights have disappointed them. As they say, you win some, you lose some.
Last year a nine-member Constitution Bench declared right to privacy a fundamental right. This led to hopes that it would rule that the Aadhar card project, under which the government has gathered a good deal of personal data about citizens, unconstitutional. But it only provided partial relief.
The Aadhar project was initiated by the previous United Progressive Alliance government. At that time the Bharatiya Janata Party opposed it and Narendra Modi unleashed a Twitter campaign against it. On becoming Prime Minister he enlarged its scope and compelled linking of Aadhar numbers with bank accounts, mobile phone numbers etc.
The court stopped linking of Aadhar with bank accounts and mobile numbers but did not interfere with the scheme itself.
The Court made a quick intervention and denied the Maharashtra police custody of five reputed social activists it had arrested in a multi-state swoop in late August and ordered to keep them in their own houses. Since then it has been granting piecemeal extension of their house arrest, without going into the points raised in the petition challenging the arrests, betraying Hamletian indecisiveness.
On Friday, Chief Justice Dipak Misra and Justice AM Khanwilkar allowed the Maharashtra police to go ahead with the investigation while Justice YV Chandrachud, in a dissenting judgment, virtually accused it of trying to muzzle dissent. There has been speculation that the majority judgment was a last-minute development. --Gulf Today, October 2, 2018.
Last month it decriminalised adultery and gay sex, which were punishable under the Indian Penal Code, introduced by the British colonial administration a century and a half ago.
Human rights groups, especially those voicing the demands of sexual minorities, had been seeking changes in the law for some time. Public opinion on the issue was not strong enough to compel the government to accept the demand and change the law.
When the matter was brought before it, in a break with the past, the Supreme Court took a liberal view in the light of the personal freedoms which the Constitution guarantees to all citizens. In effect, the recent judgments have taken the Indian legal system out of the confines of Victorian morality in which the British had set it.
Last year the Court, by a 3-2 verdict, declared instant triple talaq unlawful. While two judges said it was inconsistent with the Constitution, a third judge struck it down on the ground that it was against the Sharia and the basic tenets of the Koran. Last week the court, rejecting the arguments of a section of Hindu orthodoxy, overturned a supposedly traditional practice of barring women of the 10-50 age group from trekking to the Sabarimala shrine nestling in the Western Ghats.
Chief Justice Dipak Misra, who delivered the main judgment, said the bar was a clear violation of Hindu women’s right to practice religion. Interestingly, the lone woman on the five-member Constitution Bench, in a dissenting judgment said the question was one of faith and the court could not go into it.
The Preamble of the Constitution, which outlines its objectives, grants primacy to “justice — social, economic and political”. As the sole authority for its interpretation, the Judiciary is the ultimate arbiter of what is constitutional and what is not.
Initially, the higher courts took care not to upset powerful elements. When a petitioner belonging to a so-called upper caste approached them claiming she could not get admission in a medical college because of the reservations favouring backward communities and arguing that the reservation system was against the principle of equality enshrined in it, they readily accepted it.
To get over the courts’ objections, Parliament amended the Constitution and added a proviso that permitted special provisions for socially and educationally backward classes of people. The Supreme Court upheld the amendment.
Later on the Judiciary moved forward to ensure political justice by coming down on authoritarian acts of the Executive. There was a setback when Indira Gandhi’s government declared an Emergency and the apex court upheld its contention that it could suspend all fundamental rights, including the right to life.
On economic justice, the court inevitably lagged behind as the expensive legal process is weighted in favour of the rich and casts a disadvantage on the poor.
If the recent Supreme Court judgments on social issues have warmed the hearts of the liberals, some decisions with a bearing on civil and political rights have disappointed them. As they say, you win some, you lose some.
Last year a nine-member Constitution Bench declared right to privacy a fundamental right. This led to hopes that it would rule that the Aadhar card project, under which the government has gathered a good deal of personal data about citizens, unconstitutional. But it only provided partial relief.
The Aadhar project was initiated by the previous United Progressive Alliance government. At that time the Bharatiya Janata Party opposed it and Narendra Modi unleashed a Twitter campaign against it. On becoming Prime Minister he enlarged its scope and compelled linking of Aadhar numbers with bank accounts, mobile phone numbers etc.
The court stopped linking of Aadhar with bank accounts and mobile numbers but did not interfere with the scheme itself.
The Court made a quick intervention and denied the Maharashtra police custody of five reputed social activists it had arrested in a multi-state swoop in late August and ordered to keep them in their own houses. Since then it has been granting piecemeal extension of their house arrest, without going into the points raised in the petition challenging the arrests, betraying Hamletian indecisiveness.
On Friday, Chief Justice Dipak Misra and Justice AM Khanwilkar allowed the Maharashtra police to go ahead with the investigation while Justice YV Chandrachud, in a dissenting judgment, virtually accused it of trying to muzzle dissent. There has been speculation that the majority judgment was a last-minute development. --Gulf Today, October 2, 2018.
