Friday, 24 July 2015


      It is typical of our sensation-hungry and morally bankrupt times that a recent judgement of the Supreme Court, delivered earlier this month by Justice Vikramjit Sen, has attracted little or no notice at all. This path breaking order, emanating from SLP ( Civil) no. 28367 of 2011 against an order of the Delhi High Court dated 8.8.2011, decrees that an unwed mother cannot be forced to disclose the name and particulars of the father of her child. What makes this judgement so momentous is that it recognises the rights of a woman( and her child) in a society that is still essentially patriarchal. It is a huge leap forward in reaffirming the right of privacy of  women and in accepting, without being sanctimonious, the emerging phenomenon of the single mother. Justice Sen's further achievement in his judgement has been the bringing together of the threads and tenets of different religions to confer further legitimacy on his order. He has eloquently demonstrated how his conclusion conforms to Hindu thinking ( The Hindu Minority and Guardianship Act 1956), Mohammedan precepts and Christian law ( Indian Succession Act 1925), and therefore removes any jingoistic challenge to his findings. For me, however, the real significance of this matter goes beyond individual judges and judgements: it lies in an analysis of the forces that shape the evolution of a society- upwards to enlightenment or downwards to the darkness of ignorance.
India today appears to be on the downward spiral, especially over the last few years. Intellectually and morally we seem to be regressing to the dark ages when all individualism, non-conformism, intellectual exploration and liberal thinking are frowned upon and even persecuted. Any attempt at changing out-dated customary practices or social reforms is shouted down by religious bigots, self-appointed guardians of public morality, khap panchayats or ante diluvian politicians. And their opposition is not limited to just " shouting down" any proponent of change- they have also devised an administrative and legal structure that enforces their rabid intolerance. This pernicious structure has to be dismantelled-the question is: who will do this?  The essence of the problem is that the country has ceased to produce visionary thinkers or social reformers after Raja Rammohan Roy, Gandhi and Vivekenanda. I am 64 years old and I have not seen in my lifetime the emergence of any such intellect that could act as a beacon for social change. Nehru had a vision of sorts but he was more of a synthesiser of divergent views than a genuine philosopher, Sardar Patel was too caught up in the here and now, Jaiprakash Narain was a well intentioned flash in the political firmament, Ram Manohar Lohia was an existentialist socialist not a social reformer, VP Singh was a divisive not a uniting force, and the God men of today are nothing but spiritual entrepreneurs. There is no hope either from the current crop of politicians who may call themselves " leaders" but are actually being led by the nose by base considerations such as appeasement of the forces of caste and religion, the instinct of self-survival, an insatiable appetite for money and the naked craving for power. How then can our society progress to join the other nations who are leaving us far behind on the scale of " civilisational values"?
    Events in the recent past lead me to believe that it is only active judicial intervention- through the forum of the Supreme Court- that can bring about much needed social changes in a society rapidly regressing into the age of darkness. The decriminalisation of suicide ( by the scrapping of Sec. 309 of the IPC), upholding the right of free speech by striking down Sec.66   of the Information Technology Act, the repeated quashing of cynical , caste and religion centric laws, attempts to clean up an electoral system weighted heavily in favour of criminals and black money, forcefully declaring that the LGBT community and transgenders have all the rights of other citizens in this country- these are some of the achievements of the Court in the recent past. They are important because they are essential stepping stones to a society based on the rule of law and premised on the humane values that define civilisation. And each of these successes have come in the face of stiff opposition from governments, political parties, religious leaders and pressure groups who do not want the status quo to change.
   But even the Supreme Court has not covered itself in glory on all occasions, and at times has shrunk back from acknowledging that in this putrid milieu its responsibility as THE agent for social change is inescapable. It is imperative that the Court acknowledge this role and not see itself merely as the arbiter of disputes and final judge of criminality. Through the decades, by an aggressive and pro-active interpretation of the Constitution, the Court has carved out for itself an increased role in the affairs of the state; but this should not be limited only to issues such as the determination of who will appoint judges, or how judges cannot be arrested without prior approval of the CJI, or who is qualified to sit on Tribunals. The real canvas should be much larger( as the Supreme Court has demonstrated on many occasions, as mentioned earlier). The immediate test for the Court is staring it full in the face even today, in the form of four landmark cases pending before it for adjudication:
Decriminalisation of homosexuality:  
Section 377 of the IPC, which makes homosexuality a crime, is an abomination in the legal system of any progressive society. Inserted by Macaulay in the 19th century in deference to the then existing Victorian mores in Britain it has been repealed long ago in the country of its origin, but continues to torment people in this country even today. It bears mentioning that even the Catholic church, which for centuries has opposed homosexuality, is having a rethink on the matter: questioned about it recently, the Pope was reported to have said:  "Who are we to judge.....?"                                                         Out of 193 nations in the United Nations homosexuality is not a crime in 114 of them- we belong with the remaining 79, but it is not company we should be proud of- Burundi, Libya, Iraq, Iran, Somalia, Sudan, Togo, Pakistan, Yemen, Quatar, to name just a few. Except large parts of Africa, the Middle-east and South-east Asia the rest of the world has recognised the injustice of treating millions of people as criminals simply because they have a different sexual orientation. On 2.7.2009 the Delhi High Court, in a judgement remarkable for its sensitivity, scientific reasoning and world view, struck down Sec. 377 as unconstitutional. Unfortunately, this was overturned by the Supreme Court on 11.12.2013 in a timid order that for me will always be a blot on the Court's record. The specious argument for doing so was that it was for Parliament to legislate on the matter. Why then is the Supreme Court entertaining challenges to another legislation passed by Parliament, viz the NJAC( the National Judicial Appointments Commission) ? No, sir, this is no defence for having developed cold feet in the face of opposition from Neolithic elements- the same court has on innumerable occasions in the past quashed or read down legislation which was unconstitutional: it could have done the same by upholding the enlightened verdict of the Delhi Court. Fortunately, the matter is before the Supreme Court again in a bunch of revision/ curative petitions and we hope that it makes amends now for its earlier decision.
Marital rape:
If it is at all possible to have a bigger abomination in law than the one mentioned above, it is the government's/ law breakers' refusal to recognise that marital rape is a crime just as much as rape simpliciter is. Although the latter is a crime under Sec.375 of the IPC there exists in it an exception which specifically provides that rape in marriage is not a crime! There can be few things more abhorrent and repulsive to the rule of equality of sexes. Based on the ancient premise( still prevalent in some religions, not all of them Semite) that women are chattel and the property of men, any society that still tolerates this provision of law cannot possibly call itself either humane or cultured. This matter is also being heard by the Supreme Court now. The government has opposed the scrapping of the exception clause on the grounds that marriage is a sacred covenant with which the court should not interfere, that societal customs should be respected and that rape in marriage is difficult to prove. This, to me, is an astounding and incredible position for a government to adopt- marriage is a legal covenant and governments have always made laws to to ensure it is practiced fairly: in matters relating to dowry, divorces, custody of children, maintenance, division of property and so on. Why should it not intervene in one of the most pernicious practices within the closed doors of a bedroom? Surveys have shown that more than 60% of wives are subjected to this form of rape at some time or the other- is this a " societal custom" that the government wants to condone and continue to legalise? And so what if it is difficult to prove?- so is dowry harassment, and sedition, and blind murders, and Lalit Modi's embezzlements and Shivraj Chauhan's complicity in Vyapam. It does not, however, lead to the conclusion that anything which is difficult to prove should be legalised! I hope the Court laughs the Attorney General out of court while scrapping this exception in law. And while doing so, I sincerely hope it also throws out another scandalous, anti-women provision- the law that allows courts to order " restitution of conjugal rights" on a woman. What this amounts to is ordering a wife to have sex with her husband, even if she doesn't want to ! Can this be anything but the legalising of rape within marriage ?
Assisted suicide:
The constitutional right to life is incomplete without the concommitant right to die. Our own Supreme Court has held that the right to life includes the right to live with dignity. In that case if a person can no longer live with dignity owing to his physical condition- no control of his bodily functions, comatose, dependent on others, tubated from every orifice in his body and a few others surgically created, in unbearable pain, kept alive only by a battery of machines- should he not then have the right to decide whether he wishes to end this vegetable existence? No, said the Supreme Court in another extremely disappointing judgement in December 2014, in the case of the unfortunate Mumbai nurse Aruna Shanbaug, who had been in a vegetative state for more than thirty years. The Court refused to allow the withdrawal of medical interventions that alone kept her alive. ( The lady died this year, a living- dead?- example of how even the best legal brains can falter.) By the same judgement the Court has allowed " passive euthanasia" but not " active euthanasia" which in more sensitive nations is called " physician assisted suicide ( PAS)."
PAS is legal in four countries, Quebec in Canada and at least four states of the USA. Legislation to permit it is pending in the UK and France. Though the details vary, PAS basically allows a physician to prescribe the terminal dose to the recipient, though the latter has to administer it himself. Of course, at least two other Doctors have to certify that the patient is terminally ill and has no hope of recovery. Public opinion in developed countries is now veering around to the view that PAS should be allowed subject to a mechanism to prevent its misuse. Along with this, the concept of the " living will" is also gaining acceptance- a document which a person makes out while still in control of his senses, to the effect that if he is incapacitated at some future date, in agony and unlikely to recover, no life prolonging medical interventions should be made to keep him alive. A " living will" makes it easier for PAS to be applied.
The issue of both, the living will and " mercy killing" ( as we call it in India!), is pending before a constitution bench of the Supreme Court, and it is to be hoped that the Court will examine it rationally, bereft of the religious, " cultural" and ersatz compassionate jingoism that it will inevitably attract from various quarters. We hope also that the Court will take into account the fact that alternative mechanisms which can support life and obviate the need for PAS are completely lacking in India. Quite often the extreme medical conditions that drive families or individuals to opt for suicide are the result of massive deficiencies in a country's health care systems. A recent survey by AIIMS itself revealed that 40% of its trauma/ paralysed patients died within two years of discharge because they had no access to post hospital care. It takes 9 months to get an MRI done at a govt. hospital in Delhi, and a year to obtain a date for a major operation. India spends just 2% of its budget on health care, less even than Srilanka, Bangladesh and Cuba. We do not have a system of " hospices" or home based nursing care which could improve the last days of a terminally ill patient and thus remove the need for PAS. In this connection, every single judge of our Supreme Court should read the remarkable ( for a Doctor) book by Atul Gawande, " BEING MORTAL". This is a book which highlights the lack of compassion in a medical profession dedicated to prolonging life rather than in improving its quality, especially in the last few days before an inevitable death. In the USA the focus is rapidly shifting to the latter and there are now more than 17000 institutions that do so. In India our medical apparatus, especially the state apparatus, is not even good at prolonging life; the private sector only partially succeeds in order to milk the maximum moneys from the soon to be departed. Until this context improves there will be an inevitability about the need for PAS, and it should be allowed, both to preserve the dignity of the suffering and the sanity of the living. One hopes that the judges will realise that this is not merely an arid legal issue but one that reflects a social reality and demands a compassionate response.
Criminal defamation:  
A social order which puts a man in jail for saying something which another man does not like cannot be called civilised and is not likely to progress beyond a banana republic stage. In practically all developed countries defamation is a civil offence, not a criminal one, but in India we persist in demonising it. It happens because the moment something is categorised as criminal the police step in with their fearsome powers. This eminently suits our politicians, the wealthy and the well connected who can use the police apparatus and the even more intimidating legal system to brow beat and persecute those who dare to utter anything unpalatable or accusatory about them. There can be no freedom of speech if we have to look over our shoulder at the nearest police station or magistrate's court everytime we write an article or utter something in public about someone. By criminalising defamation we provide a handy tool to the powerful to muzzle dissent, and for this reason alone it has to go. Increase its civil penalties by all means but take it away from the police.
The matter is before the Supreme Court as the criminality part of it has been challenged by a number of people including Subramaniam Swamy and Arvind Kejriwal. The government is,naturally, opposing it in its usual ham-handed manner. It argues that the monetary compensation for defamation( if it is treated as a civil offence alone) can never be adequate as we do not have a law of torts in India, and that most people in India do not have the capacity to pay any damages imposed! In other words, lock up the 190 million people in India who live below the poverty line if they commit any transgression at all ! We already have more than 450000 undertrials in our jails who do not have the money to post a bond- the govt. should be thinking about how to get them out, instead of devising means of getting more in! Secondly, by all means legislate a law of torts- we need one in any case to compensate consumers for the rampant cheating and misrepresentation that is the standard business model of most companies ( and the government too) in this ancient country of ours.

These then are some of the legal perversities hidden in the Augean stables of our republic, and how the Supreme Court cleans them out will determine our future path to a modern, rational, liberal and compassionate society. Those that prefer the status quo will no doubt throw up a host of legal challenges and try to complicate matters by all manner of legerdemain , but my hope is that the Court will hack its way through this juridical thicket to the simple truth that lies beyond it, the truth that Socrates enunciated so well: There can be no greatness without simplicity. 


  1. In this brilliant piece (what's new there coming from you, Avay!) what you're advocating is more legislating from the bench by an enlightened Supreme Court. I agree because my preferred scenario of Indian voters electing an enlightened political leadership that makes these changes is not happening, at least not fast enough. An open question is whether the judges themselves are up to the task, and can do this without usurping the legislative and executive functions in other ways with less noble motives.

    I remember since decades ago how HP judges passed judgements allocating choice government residences for themselves. I also see now high court judges flying the Indian flag on their official cars the way ministers do. Then they pass orders about repairing / expanding this road or that construction, essentially appropriating the state budgetting and prioritizing function of the executive branch to themselves. Even the courts ordering all Delhi buses and 3 wheel autos to run on CNG falls in this category. It created a net benefit, so division of government principles aside it at least shows such actions can be desirable. Back to your point, some of our much needed changes to social laws may only be possible in our current milieu through this imperfect mechanism of judicial intervention.

    1. You're quite right, Sandip, it is an " imperfect mechanism" and not quite what our constitution makers had in mind. Indian polity today is increasingly " court-driven" with the Supreme Court and the High Courts deciding on what we can eat, what we should wear, what we can speak, how college admissions can take place, how traffic can be regulated, even which gender we can have sex with! This is, however, the cumulative result of lack of governance by the executive, total failure of Parliament and state legislatures, pandering to blind populism and a political polarisation that seems to be becoming worse. Of the two critical checks on the system, one, the media has digressed into puerile issues, and the second, civil society is being gradually bludgeoned into submission by the govt. The courts are being increasingly perceived as the last resort, notwithstanding their own contradictions, defects, occasional self-serving agendas( as rightlypointed out by you). The problem is not that the courts have become the final arbiters on societal issues- they will always play this role in any democracy. Even in the USA the Supreme Court just this year has settled many important issues that bedevilled and divided society there: Obamacare, gay marriages, rights of pregnant women in the work place, racial discrimination under your Fair Housing Act, lethal injections and so on. What is troubling for some of us in India is the fact that whereas in the US the govt. is seen pushing for positive social changes, in India the govt. is the biggest obstruction to these reforms ( as I have tried to indicate in my blog post). The danger in this is best summed up by a recent article in the Economist, which warns:
      " The danger is that, relieved of responsibility for legislating on some of the most charged social questions, elected politicians are left free to posture without having to face the consequences of their positions, and the polarisation gets worse."