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.

Fall of Rome

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 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 government 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 government 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.

Avay Shukla retired from the Indian Administrative Service in December 2010. He is a keen environmentalist and loves the mountains. He divides his time between Delhi and his cottage in a small village above Shimla. He used to play golf at one time but has now run out of balls. He blogs at http://avayshukla.blogspot.in/

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1 Comment

  1. says: Nodnat

    Perhaps one reason that we continue to live (and struggle) with such basic and critical legislative issues (as brought out in this brilliant analysis), is because we are a country that inhabits a long span of spatial and temporal realities, marked out by the glaring economic and social inequities that haunt our history and the present. So, it is not surprising to see whole populations steeped in superstition and obscurantist beliefs yet amidst them a school or learning that is dazzling with scientific temper and contemporary relevance. There are people who continue to live by codes of conduct (though not morals) that were enunciated centuries ago and even within many such families, children (and a few grownups) to whom the label of ‘post-modernist’ would appear outdated. In effect we have people living together right from the hunter-gatherer era to those in the ‘Dark Ages’ and many in medieval times to millions who are yet to figure out the difference between myth and history and relatively fewer who one can say live in the present times (though with some or the other ‘baggage’). At the same time these different ‘sets’ of people are heterogeneous and changing constantly, which is why things like ‘Muslim or Dalit vote banks’ are and are not there.

    It is, therefore, not surprising that ‘change’ for one set of people actually means ‘regression’ for another set; a positive development (like the Supreme Court judgment on single mothers) is perceived as a threat to entrenched patriarchy and all the benefits and freebees (like dowry and marital rape) that come with being born a male. For the upwardly mobile the English language is seen as a necessity while for the status-quoists it represents a historical and now a neo-imperialistic threat to our culture. Within this cauldron of opposed mindsets and disparate priorities, the unbridgeable and growing economic disparities for a majority of our people (living on Rs 33 a day) are being churned into a lethal brew that we are far from coming to grips with. Perhaps because it connects to the political economy of perpetuating inequality and in the way representation and representativeness is designed, the minorities of progressive sub-sets within each ‘set’ will never get into Parliament in numbers that matter.

    It is true that the Judiciary has been the ‘paasban’ of our Constitution and Freedom since Independence. However, despite a plethora of laws on each and everything, our implementation has been dismal. Since elected politicians do not seem to be interested (for undisclosed reasons), the answer to the basic question of how laws will be implemented and equally for all, is falling between many stools. Societies change for the better when laws are fairly implemented. Without implementing the Law where is the hope for justice?
    And for equitable Social Change?

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