Supreme Court as Custodian of the Constitution

Part - II

Where it Scores and Where it Fails

[Part I]

Over the past one year or so, the Supreme Court of India has delivered a series of crucial judgements involving vital social, political and moral issues. Some of these we have discussed in various issues of this magazine (e.g., Triple Talaq in September 2017, right to privacy in October 2017, LGBT rights in October 2018) and a few others like Aadhar, Bhima Koregaon arrests has been covered in our weekly newsletter ML Update. Here we critically examine the whole pack together so as to try and understand the inherent tensions in constitutional jurisprudence in country as a reflection of conflicts between an increasingly tyrannical state and popular forces fighting for their rights and also between an emancipatory constitutional morality based on ide-als of Justice, Liberty, Equality and Fraternity.

The most obvious yet striking finding that emerges from this composite study is this. Four of these judgements (on Privacy, LGBT rights, Adultery and Sabarimala) creatively interpreted and applied the lofty principles enshrined in the Constitution from a 21st-century perspective, there-by vastly expanding the connotation – and accelerating the progressive realisation -- of the fundamental rights guaranteed under that great document. In four other cases (Aadhar, Bhima Koregaon, dilution of SC/ST Act, Judge Loya death case, and deportation of Rohingyas) the apex court miserably failed to do that, and remained almost a prisoner of the official narrative on basic policies of economic and political governance. If verdicts in the first group of cases stand out as exercises in transformative constitutionalism, those in the second group must be called constitutionalism of convenience -- the saving grace being that in two of these (Aadhar and Bhi-ma Koregaon) the spirit of the Constitution still speaks out in the voice of great dissenting judge-ments. In Part I we take up the first group of litigations, leaving the rest for Part II.

Privacy as a Fundamental Right

Let us begin with the verdict in Justice K.S. Puttaswamy (Retd.) v. Union of India on 25 August, 2017. Because, as we shall see, this judgement was really path-breaking in the sense that it antic-ipated and paved the way for further advances in a progressive direction.

In 2012, Puttaswamy filed a petition in the Supreme Court challenging the constitutionality of Aadhaar on the grounds that it violated the right to privacy. The Government argued that there was no constitutional right of privacy, as the SC had ruled in M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of Uttar Pradesh (1964). The case was referred to a three judge Bench, then to a five judge Constitution Bench and finally to the nine judge Bench, which delivered six separate but concurring judgments last year. The lead judgment, delivered by Jus-tice D.Y. Chandrachud on behalf of himself, Chief Justice J.S. Khehar and two other judges, held that privacy is intrinsic to life, liberty, freedom and dignity and therefore, is an inalienable natu-ral right and a fundamental right to boot.

The lead judgement approaches and arrives at this focal point in course of a highly instructive elaboration of the integral/composite nature of all the fundamental rights and humanistic values upheld by the Constitution, whether in so many words or by implication.

“To live”, reads the judgement, “is to live with dignity.  The draftsmen of the constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity… Dignity is the core which unites the fundamental rights… The draftsmen of the constitution had a sense of history− both global and domestic– as they attempted to translate their vision of freedom into guarantees against authoritarian behaviour… The backdrop of human suffering furnished a reason to preserve a regime of governance based on the rule of law which would be subject to democratic accountability against a violation of fundamental freedoms…”

“Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence.  The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian constitution…

Life and personal liberty are not creations of the constitution. These rights are recognised by the constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within.”

It is on this solid legal and moral foundation that the jurists take up the vexed question of privacy and clarify it for all:

“Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality.

“Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual.”

The judges go on to elaborate:

“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. … Privacy safeguards individual auton-omy and recognises the ability of the individual to control vital aspects of his or her life.

“Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being …”

Governance to be “based on the rule of law” and “subject(ed) to democratic accountability against a violation of fundamental freedoms”, guaranteeing “the right to be left alone”, sanctity of “personal choices”, including those of “sexual orientation”, protection of “heterogeneity” and “plurality and diversity of our culture”, inviolability of privacy even in “public places” … it seems we are reading through a list of pertinent caveats against the blatant authoritarianism, the mobocracy and state-sponsored vigilantism, the growing intolerance and denial of diversity, the moral policing and all that fascist traits that characterise the Modi regime today. All great verdicts address the most pressing concerns of the day, and so does the one under review.  

The judgement, however, is not blind to the need for maintaining a proper balance between the individual’s right to privacy and the state’s right to impose reasonable restrictions on it for legitimate aims, such as national security, prevention and investigation of crimes and prevention of pilferage of welfare resources. But the emphasis is clearly on the primacy of the inalienable fundamental rights, including the right to privacy, vis-à-vis state control.

Since the Government of India vehemently opposed the notion of privacy as a fundamental right, this verdict of the top court has been seen as a major setback for the Modi Government. It also ruled that, since informational privacy is a vital component of the right to privacy, the Government must put in place a robust data protection regime and implicitly questioned the Constitutional validity of Aadhar in the absence of this necessary prerequisite.  Thus in many ways this judgement has opened up a new arena of struggle for democratic rights, e.g., for challenging bans on beef and alcohol consumption arbitrarily imposed in many states.

LGBT Rights Won at Long Last

The privacy judgement had clearly anticipated the SC verdict of 6 September 2018 upholding LGBT rights. To quote from the former,
“The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection.  Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.  Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the constitution… [LGBT] rights … inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.”

By legitimising all kinds of consensual sexual relations between consenting adults and upholding the dignity, freedom and equal rights of persons belonging to the LGBTQIA community, the SC in fact made amends for the mistake it had committed back in 2013, when it overturned the historic Delhi High Court judgement decriminalising homosexuality. It is a great verdict, but we are not going into any details here because we have commented on it in our last issue.  

Equality and Gender Justice

No More Instant Triple Talaq

Just two days before the privacy judgement came the judgement on instant Triple Talaq. It was a split verdict. Chief Justice Khehar and Justice Nazeer said instant Triple Talaq “may be sinful” but the court cannot interfere in matters of faith and personal laws. So in their ruling they stayed the practice for a period of six months and directed the Government to pass a law to end the practice. But the three other judges, while asking for this law to be passed, declared instant Triple Talaq to be unconstitutional, arbitrary, and void from that very moment.    

The verdict effectively affirmed that marriage is a secular institution, governed by civil laws: even if one gets married through religious rituals, the character of marriage remains that of a secular, civil contract governed by civil laws. It is also very significant and commendable that the apex court took the responsibility of safeguarding Constitutional values and rights on itself, rather than outsourcing it to the government as it did in the past, which proved totally ineffectual.

Sabarimala: Scrapping a Discriminatory Custom

Another most welcome verdict delivering gender justice came a year later in the form of the SC order declaring as unlawful an age-old ban on entry of women in the 10-50 age group into the Sabarimala shrine. Like in the Triple Talaq case, here too the top court came up against a complicated question, if not a dilemma: how does one reconcile the Constitution‘s firm commitment to equality, that is non-discrimination, with its spirit of pluralism and respect for religious autonomy. Not surprisingly, both cases were decided by split verdicts. In the Sabarimala case Justice Indu Malhotra observed in her dissenting opinion, “Issues of deep religious sentiments should not ordinarily be interfered by the court”, adding, “Notions of rationality cannot be invoked in matters of religion. … What constitutes essential religious practice is for the religious community to decide, not for the court. India is a diverse country. Constitutional morality would allow all to practise their beliefs. The court should not interfere unless there is any aggrieved person from that section or religion” and except in issues of social evil like ‘Sati’.

The majority judgement authored by Justice Chandrachud does not summarily brush aside Justice Malhotra’s sensible position. Rather it demonstrates that discriminatory practices – such as stigmatisation and ostracisation of menstruating women -- often operate in religious garbs and undermine the ideals of equality, natural justice and Constitutional morality. In such circumstances the court cannot remain mute spectators. Dr. Chandrachud extrapolates from the single case of exclusion from worship in one temple and shows how this single case is but the most glaringly visible part of an entire social and institutional order (which he prefers to call a patriarchal order) that is characterised by subordination and exclusion. Such institutionalised discrimination and inequality must be constitutionally combatted, he asserts. As Supreme Court advocate Gautam Bhatia correctly points out, “at the heart of Chandrachud J.’s judgment is the understanding that discrimination within religion both reinforces and is reinforced by, discrimination in broader social life.”

It is a remarkable judgement, and we would like to share glimpses of it with our readers. Quoted below are excerpts from 'The Sabarimala Judgment – III: Justice Chandrachud and Radical Equality'  -- written by Gautam Bhatia, who calls it “a transformative judgment”, and published in the web magazine Indian Constitutional Law and Philosophy (29 September 2018). The stanzas in quotation marks are from the judgement, the rest comprises Bhatia’s explanatory remarks.

“The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order.”

The phrase “patriarchal order” is an important one. It indicates that the exclusion of women from Sabarimala is not simply – as Malhotra J. would have it – a unique and particular feature of that specific religious community, and something that can be isolated from the broader world around it. Rather, the exclusion of women from Sabarimala on the grounds of celibacy and menstruation is one among countless ways in which patriarchy – as a social institution – works to keep women in a position of subordination….

According to Chandrachud J., you cannot divide social life into different silos, and say that discrimination and subordination are fine as long as they stay within a defined silo. At least as far as religion and society are concerned, in the context of India, the silos are forever merged. As Alladi Krishnaswamy Iyer said in the Constitutional Drafting Committee, “there is no religious question that is not also a social question.”

It perhaps needs to be noted that history is on Justice Chandrachud’s side. In India, temple-entry movements have a long history, and have always been framed in the language of civil rights, and access to public spaces. This was especially true of the great caste-based temple-entry movements of the 1920s and 30s (which are discussed later in the judgment)…

“Reading Dr Ambedkar compels us to look at the other side of the independence movement. Be-sides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles. It is the foundational document, which in text and spirit, aims at social transformation namely, the creation and preservation of an equal social order. The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence.”

Justice Chandrachud argues that the meaning of fundamental rights ought be determined by asking the following question: what was the legacy of injustice that the Constitution sought to acknowledge, and then transform? That legacy was defined by social hierarchies and social sub-ordination. At its most virulent form, this took the shape of caste untouchability. However, caste was not the only axis for exclusion from, and subordination within, the social order. There were others, prime among which was, of course, sex. Consequently, as Justice Chandrachud observes:

“The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries-old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of historic horrors. It is an attempt to make reparations to those, whose identity was subjugated by society.”

It is, of course, important not to overstate the case. Not every form of discrimination or prejudice can fall within Article 17. The framers did after all use the specific word “untouchability”, limiting the sweep of the Article only to the most horrific kind of discrimination. Chandrachud J. is aware of this, because he then goes on to justify why exclusion based on menstruation falls within Article 17:

“The caste system represents a hierarchical order of purity and pollution enforced by social compulsion. Purity and pollution constitute the core of caste.”

And of course, it is purity and pollution that are at the heart of excluding menstruating women – not just from temples but, as regularly happens in our country – from all forms of human con-tact during the menstrual period. Chandrachud J.’s important insight, therefore, is this: the social exclusion of a set of people (who are in any event historically subjugated), grounded in ideas about purity and pollution, amounts to a manifestation of the kind of “untouchability” that the Constitution seeks to proscribe.

As he notes, towards the end,

“In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against prac-tices that depart from the values that underlie the Constitution – justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions, but on the structures of oppression and domination which exclude these identities from participation in an equal life. An indispensable facet of an equal life is the equal participation of women in all spheres of social activity.”

Women are Not Chattel: Section 497 Struck Down

The Supreme Court on 27 September this year struck down Section 497 of the IPC (and the cor-responding CrPC Section 198) on the ground that it violated Articles 14 and 21 of the Indian Constitution. This Section laid down that “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the con-sent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.” Only the husband could bring a prosecution for adultery; but he would have no case if he had “consented” or “connived” in the adulterous act.

The judgement striking down this archaic law faced considerable opposition. Typical is this tweet by Swati Maliwal, Chairperson of Delhi Commission for Women: “Totally disagree with SC on adultery. They've given license to married couples 4 adulterous relationships. What's sanctity of marriage then?”  

Such accusations are totally misplaced. The verdict is not about whether adultery per se is good or bad (in fact it specifically states that though not a criminal offence, it can be a ground for divorce). It examines whether a particular Section of IPC treats women unequally, finds that it does, and therefore strikes it down. A glance at the highlights of the judgement will make the rationale amply clear.

  • “At first blush, it may appear as if it is a beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in the section is a kind of 'romantic paternalism' which stems from the assumption that women, like chattels, are the property of men."

  • “Section 497 criminalises the conduct of the man who has sexual intercourse with the wife of another without his consent. It exempts women from criminal liability. Underlying this exemption is the notion that women, being denuded of sexual agency, should be afforded the ‘protection’ of the law. In criminalising the accused who engages in the sexual relation-ship, the law perpetuates a gender stereotype that men, possessing sexual agency are the seducers, and that women, as passive beings devoid of sexual agency, are the seduced."

  • "The real heart of this archaic law discloses itself when consent or connivance of the married woman‘s husband is obtained – the married or unmarried man who has sexual inter-course with such a woman, does not then commit the offence of adultery. This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the "licensor", namely, the husband, no offence is committed."

  • “Manifest arbitrariness is writ large in Section 497… It destroyed women’s dignity and self-respect, as it treated them as their husbands' chattel, and offended their sexual freedom.”

Annulment of this stinking law from a bygone era is good riddance indeed!

[To be concluded]