Dr Akkai Padmashali had a story to relate — and she wanted it to be heard in the Supreme Court. In 2016, when the transperson from Bengaluru filed a writ petition along with several other queer people, she drew the Court’s attention to her rights that had been violated because of her gender.
Padmashali’s personal life had been declared illegal by Section 377, a colonial-era law which criminalised same-sex relationships. When the Supreme Court (SC), in a path-breaking judgment in September, decriminalised same-sex relationships between consenting adults, it restored Padmashali’s dignity and upheld her right to equality and freedom of expression.
“Akkai insisted on telling her story,” says Jayna Kothari, lawyer and founder of Bengaluru-based Centre for Law and Policy Research, who represented Padmashali. Born male, Padmashali identified as a woman and married a man. “But her case falls foul under Section 377, because the law looks at her medically as a man having sexual relations with another man. She wanted to know how criminal law understood gender transition,” says Kothari.
The SC has shown the way ahead with its Navtej Singh Johar Vs Union of India (Section 377) judgment. And not just on Section 377, it has spoken up for disparate sections of people living on the margins. In public imagination, the top court has established itself as a repository of 21st-century thought and values.
Besides normalising sexual minorities, it decriminalised adultery while emphasising that women were not the property of men but individuals with sexual autonomy. In a case that pitted constitutional rights against religion, the SC decided that menstruating women could not be barred from visiting the Ayyappa temple at Sabarimala. Justice Indu Malhotra dissented with the majority, Kerala erupted in protest and several review petitions have since been filed in the SC to relook the Sabarimala decision.
A year ago, the Court set aside the practice of instant talaq in some Muslim communities, and in another case it bestowed on a Parsi woman who had married outside the community the right to take part in her parents’ final rites.
“It usually does not happen that such a large number of important judgments are clustered into one period,” says Upendra Baxi, emeritus professor of law at University of Warwick, and Delhi University. He points out that then Chief Justice Dipak Misra was hearing a clutch of critical cases and it was imperative for him to give those decisions before he retired on October 2. Baxi adds, “Every Chief Justice wants to be remembered as a progressive judge. The public may feel strongly about this particular period, but it is not the normal feature of the SC.”
The SC has delivered a spate of judgments — some with far-reaching social impact — since September. The volume of decisions given in a short span portrays the Court as an institution on an overdrive.
The verdicts promise to pave the way for significant changes in society: homosexuals no longer need live in fear of the law, Muslim men can no longer divorce their wives in a trice, menstruating women can visit the Sabarimala temple in Kerala, and adultery is no longer a criminal offence.
“The flurry of judgments on social and gender justice is hugely significant,” agrees senior SC lawyer Rajeev Dhavan. Decriminalising adultery and LGBTQ (lesbian, gay, bi-sexual, transgender and queer) relations, he adds, was long overdue.
The experts point out that the SC has strictly adhered to the idea of constitutional morality — a combination of individual, collective, social, religious and constitutional values. On occasions, however, constitutional morality comes in conflict with prevalent social or public norms, as it was in the LGBTQ issue.
“Courts generally, and the SC in particular, make a distinction between constitutional morality and public morality, and often the former trumps the latter,” says Baxi. Judges are bound by oath to implement the Constitution.
Take the case of the Sabarimala issue. This was where, Baxi points out, constitutional morality was at loggerheads with the freedom of religion — a fundamental right. In such cases the Court has to settle the conflict carefully. SC Justice Malhotra’s dissent in the case, Baxi says, is noteworthy. “She says the right to constitutional remedies in matters of worship may not be addressed by a PIL but must be based on a petition duly filed by one whose rights to worship have been violated. In other words, only co-religionists can say this practice (of refusing entry to menstruating women at Sabarimala) is a violation of constitutional morality. The other Justices were not persuaded; the fact remains that Shah Bano and Shayara Bano were co-religionists,” he says. The two Muslim women had approached the court on issues of maintenance and divorce.
Dhavan agrees with Baxi on the Sabarimala decision. He calls it a “flawed” verdict, except for the spirited dissent by Justice Malhotra. “She was right in holding that the temple was denominational, that the exclusion of women was an essential practice, untouchability does not extend to all kinds of ostracism and constitutional morality includes both equality and religious freedom,” he says.
While the Sabarimala decision appears to have cleaved public and legal opinion, the SC verdict decriminalising adultery has earned widespread support. Striking down the colonial Section 497 of the Indian Penal Code (IPC), the SC observed that it reduces a woman in an extra-marital relationship to a commodity.
“The IPC provision treated women as inferior to men and incapable of exercising sexual autonomy,” notes lawyer Kaleeswaram Raj, who represented the petitioner, Joseph Shine, a non-resident Indian from Italy. The judgment, Raj adds, redefines a woman’s autonomy.
Under the earlier provision, a man involved in an extra-marital relationship was charged with a criminal case while a woman was considered a “victim” with no say in the court. It also meant that only the man who had been wronged by his wife could file a criminal complaint and not vice versa.
The decision is bound to have a pronounced impact on the ground, especially in instances where false cases of adultery are brought to court. “The woman did not even have a right to defend herself as she was not a party to such prosecution, making it impossible for her to erase the stigma of such allegations. More important, it will put an end to ill-motivated criminal prosecutions,” points out Raj.
He calls the Joseph Shine Vs Union of India case a test of constitutional morality. The Centre, opposing the petition, argued that decriminalising adultery would destroy the sanctity of marriage. “We argued that the concept of sanctity of marriage was a religious idea, not a constitutional one. If sanctity of the institution was indeed an unshakeable legal idea, then we cannot have divorce laws at all, which is not the case,” says Raj. He argued that marriage rests not on sanctity, but on the foundations of love, trust and understanding. The Court agreed.
The SC verdicts have triggered an outcry in some quarters — among religious groups in the LGBTQ case, and temple authorities as well as sections of devotees in the Sabarimala case. Baxi, however, stresses that in the long run the Court’s decisions are mostly accepted. He cites the Haji Ali case of 2016 in which the dargah trust had earlier opposed the entry of women into the shrine. It eventually told the Court it would allow women to enter its sanctum sanctorum.
“Over time, even in religious issues, people tend to accept the Court’s decisions. That stems from the faith in the Constitution; it keeps us together,” he says.
There are times when a verdict can lead to serious disagreements. But in such cases, there can always be a review or a curative petition. The Court, he explains, is willing to correct itself — as it did in the Section 377 case. In 2013, the SC had overturned a 2009 Delhi HC verdict that decriminalised sex between consenting adults. “Which other institution in the country corrects itself publicly,” Baxi asks.
Yet, there is some concern about the SC taking on a proactive role, for it has often been argued that an active court implies a dormant Parliament. But Baxi insists that the Court in a position of leadership is not a violation of democratic norms: “It is just interpreting the Constitution.”
Take, for instance, the guidelines on sexual harassment at the workplace. These were put into place by the SC with the Vishaka guidelines on what constituted sexual harassment, and how to deal with it. “The Vishaka guidelines talked of sexual harassment when nobody talked about the issue. Everyone knew it happens, but chose to look away. Now we have come to the #MeToo movement,” he points out.
And it is not the first time that the Court has taken up powerful positions. The institution, on a number of occasions, differed with Parliament during the Nehru era but was held in high regard. “There were several instances when the Court took up the leadership of the country. It intervened powerfully during the land reform cases,” says the law professor.
However, he has a term for the role played by the SC in today’s context — demosprudence. “It is a situation when judges co-govern the nation with Parliament. We have moved on from judicial activism to demosprudence. The Court has taken up cases such as black money and corruption, issues which are not ordinarily considered judicial function,” he says.
But will the verdicts translate into a more equal society? A judgment does not always pave the way for change.
“Section 377, Sabarimala and adultery are landmark judgments of the Supreme Court which are certainly enabling and empowering. But society does not automatically transform through legal reforms,” argues sociologist Pushpesh Kumar.
State and social movements together usher in changes, he says. “If the state is proactive, it will put things in place and institutionalise legal reforms. Progressive social movements will push the state for the institutionalisation of these legal reforms,” says the Hyderabad Central University professor.
But the State, in contemporary India, is not greatly accommodative of dissenting voices, he argues.
The SC might have taken a progressive stance in cases that deal with social and gender matters. But the experts point out that in instances where it decided on politically-charged issues, it was seen as following a conventional line. “The Supreme Court backed off on the Babri Reference that worship in mosque was an essential practice of Islam, and on the arrest of activists. It supported the government on Aadhaar and the Rohingyas case and, in some measure, the reservation case. The government strategically left the LGBTQ and adultery to the Court. But the real test is when the court is faced with issues which have political, economic and policy edges,” Dhavan says. He asks if bigamy could go to a constitutional bench, why not the issue of Muslim prayer in a mosque? “Part of the recent decisions were on [Narendra] Modi’s agenda. In other cases, he left it all to the Court. Judgments acquire meaning as constitutional declarations but have to find a place in, and change, the social law which governs India at community levels no less authoritatively,” he adds.
Kothari agrees that the Court is seemingly picking up the easier battles. “Gender cases are easy for the court. Section 377 and adultery were not cases which the government opposed strongly,” she points out. Legal scholars, however, believe the Court will continue to hold its own in highly polarised times. For the judiciary, Baxi observes, is an institution that does not act out of self-interest. He recalls that Justice VR Krishna Iyer had once said there were two kinds of judges — legal missionaries and gatekeepers of justice. Together, perhaps, they shall ring in change.
Is there need for a Uniform Civil Code? No, says jurist Fali Nariman
“The recent Constitution Bench decisions have been all rightly acclaimed — at the moment at least — as forward-looking. I am only concerned that people would read these judgments as expressing a need ultimately for a Uniform Civil Code. On this I disagree.
Article 44 provides that the State shall endeavour to secure to citizens a Uniform Civil Code throughout the territory of India: and this provision is expressly made not enforceable in Courts (Article 37). Then, pray, why do “WE” (obviously the majority community) feel the need for a Uniform Civil Code for “THEM” (the largest single minority) in matters as private and personal as birth, marriage, divorce and death? In all other matters — in Civil Procedure, in Criminal Procedure, in Penal Law, in Contract, in Transfer of Property, in Evidence: we already have in place a uniform set of laws applicable to all… Lord Salisbury [former UK Premier] was of the belief that only uncontentious legislation should be brought before Parliament. If it was controversial, England was not ready for it. When we think of adopting a common civil code, I would advocate the “Salisbury approach”. Because it is with small beginnings, that we will ultimately achieve — without rancour or bitterness — what the directive principle of State policy in Article 44 projects as our ultimate national goal. We are already getting results. Take the example of the Special Marriage Act of 1954. Those who register their marriages under it — Hindus, Muslims, Parsis, Christians and Sikhs — are permitted to have a divorce by consent where the marriage has irretrievably broken down, without having to prove marital misconduct required under their own personal laws. Silently, this Act of Parliament has established — without pressure, — and by consensus — a uniform law for marriage and divorce: not a binding code, but an enabling one. And this is what was intended by Article 44...
There is, of course, logic in the plea that we do need a Uniform Civil Code — but only when we are all ready for it: and when we have, in thought and deed, put Ayodhya behind us. Till then, as Winston Churchill once said in a speech in the House of Commons: Beware of needless innovations, especially when guided by logic.”