SOCIAL CHANGE: SUPREME COURT AS THE DEFAULT OPTION

      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. 

DELHI DESERVES A REFERENDUM

[  In an article titled THE DELHI IMBROGLIO- A REFERENDUM IS THE ONLY WAY OUT published on the HILLPOST site on 25-5-2015 I had argued why Mr. Kejriwal should demand a referendum on the Delhi statehood issue instead of just agitating the question on the streets. On the 5th of July AAP has now formally raised this demand and has asked its Urban Development Dept. to work out a proposal for this.]

There used to be a time when it was believed that politics was the last refuge of scoundrels: that has changed-today its their first refuge. On a similar note, it is becoming evident with each passing day that the first refuge of politicians is the law, or the legal process. ( One cannot, of course, miss the delicious irony in the fact that a force which was meant to punish them has ended up being their strongest shield!). Of course, this applies equally to scoundrels too, and in any case its becoming increasingly difficult to tell the difference between the two.

Indian politicians are perfecting the art of hiding between the terminology or the processes of law. A legalism a day keeps the prosecutor away. And so a Shivraj Singh Chauhan avoids his own implication in the Vyapam scam by saying he cannot order a CBI investigation because it is for the High Court to do so. Smriti Irani deflects all criticism of her thrice- born affidavits by saying that she has not yet been summoned by a court ( which has taken cognizance of the complaint against her); Sushma Swaraj suo-moto reversed the government's policy on a wanted fugitive but can legitimately claim that she has not broken any law; Akhilesh Yadav refuses to register an FIR against a Minister accused of burning to death a journalist( in his dying confession, no less) and then wards off journalists by saying that he cannot be arrested because no FIR has been filed against him! A serious FIR against a Governor is quashed because the law gives him immunity. Lalit Modi continues to evade the law by claiming that he has not yet been declared an absconder by a court.

It therefore doesn't surprise me at all that Kejriwal's proposal for a referendum on the Delhi question has been met by a synchronised howl from both the BJP and the Congress condemning it as " illegal ", " unconstitutional " and " anti-national". It is none of these, but these two parties realise that they cannot let Kejriwal run away with this bone in his mouth, and for a number of reasons: one, a referendum in Delhi will set a precedent for similar demands elsewhere; second, it will be a second nail in the BJP's national coffin and a personal defeat for Mr. Modi; third, it will relegate the Congress to the Wazirabad garbage dump for the next twenty years; four, it will upset the loaded applecart of Loot-yen's Delhi where everybody has his or her nose in the feeding trough ( the mixed metaphor may be excused in the interest of conveying the precise meaning!).

The referendum is a useful and legitimate tool of democracy, and the sooner these politicians realise this the better it will be for the country. It is a direct vote in which an entire electorate is asked to vote on a particular proposal, the vote usually being a precursor to a new law or policy. Unlike voting in Parliaments and legislatures by elected representatives, a referendum is an expression of DIRECT DEMOCRACY: it complements the system of  REPRESENTATIVE DEMOCRACY. There are certain seminal and foundational issues in any country which are either extremely divisive, or such that they cannot be left to the decision of a government which is loath to give up its own powers ( as in Delhi), or to elected representatives who are constrained by their party lines or own self-interest. Some questions can only be decided by popular sovereignty and not by politicians.

The term " referendum" is believed to have originated in the Gaubunden canton of Switzerland in the 16th century. It is a process which has been used liberally by democracies: more than 500 referendums have been held world wide since the end of the 18 th century in countries such as the USA, Australia, Switzerland, Bolivia, Kenya, Norway, Hong Kong, Serbia, South Africa, Canada, Venezuela, UK, Ireland, Poland to name a few. The subjects they addressed have been equally diverse: congestion tax, devolution of powers, electoral reforms, prohibition,, accession to EU, redrawing of boundaries of political units, constitutional changes and so on. The most recent ones were the referendums on the independence of Scotland and the financial crisis in Greece. Referendums, by correctly gauging the popular will, always strengthen democracy and governance and not weaken it as Mr. Maken and Upadhyay mistakenly believe. It also acts a safety valve in volatile situations. So the path Kejriwal wants to tread on is a well travelled one though we in India may be stepping on it for the first time.

Delhi itself is sharply divided on the issue of statehood, and this fault line runs across class lines, unfortunately. Some people have benefitted from the present unique hybrid status of Delhi which is under the Center's thumb- the politicians, bureaucrats, all residents of South and Central Delhi who have historically been consuming a disproportionate proportion of all assets : power, water, funding, police presence, infrastructure and superstructure; traders and businessmen with contacts in the central govt. agencies and organisations such as DDA, Municipal Corporations, CPWD and so on. On the other side of the divide are the residents of a lesser Delhi- the low income groups, residents of unauthorised colonies, migrant labour, petty shop-keepers who rarely feature in the planning processes and priorities of the powers that be. This latter group outnumbers the former and constitutes the bulk of Kejriwal's support base. If a fair referendum were to be held, the result would be a foregone conclusion in favour of statehood. This is why the mainstream parties are resisting it and will deploy all tactics to ensure that it never happens. What they wilfully ignore for pelf and power is the fact that Delhi's present administrative structure is antiquated and cannot meet the challenges of its cancerous growth or the rising expectations of its citizens. The arbitrary division of powers between an elected Chief Minister and a domesticated Lieutenant Governor, between officers who report to the Center and those who report to the state govt ensures that there is no accountability or sense of responsibility. The Center deliberately choking Delhi of its fair share of funds in favour of discretionary grants is an insult to the citizens. The police have run riot because they can play both sides against the middle and have consequently become a law unto themselves. It is no wonder then that Delhi is the worst metropolis in the world.

Things have to change and a referendum would decide it one way or the other: this stasis in governance cannot be allowed to continue. Kejriwal's bold initiative is a step in the right direction and deserves to be supported by all who have the genuine interest of Delhi at heart. But I foresee a bitter struggle for him where even the courts will be ranged against him. This is a battle he cannot win in Parliament or in a judicial chamber- but he will win it on the streets of Delhi. It will be a Pyrrhic victory, and India will be the better for it.