File photo: The Supreme Court of India. Photograph:( Reuters )
It does seem that the Supreme Court has with a messianic zeal, decided to break old, though far from rusty, shackles.
In later years, those desirous of visiting the Supreme Court of India’s landmark verdicts that enforced gender equality and the Right to Live with Dignity can find plenty of material if they only delve into September 2018. The gush of judgements has left most people dazzled and some disgruntled. Reactions varied, from uninhibited praise to outright disapproval. Nonetheless, the apex court’s performance gave people in general an occasion to reiterate their faith in the judiciary.
In some instances the court demolished established traditions, in another, it overturned its earlier verdict — because those rulings had failed in the constitutional test. Seizing upon the convenience at hand, political parties have reacted differently. So have social organisations and activists of varied hues.
There were three verdicts last month, which were of a social-churning nature to the extent of ensuring gender justice, and they are perhaps all the more significant because they have set the tone for an India where equality and a life with dignity are not to be confined to statute books, but be seen where they are needed the most. They are important also because they have come despite stiff resistance from vested groups — social, religious and political. Some of them are already preparing to seek judicial reviews against the orders.
The first pathbreaking ruling to come was the court’s decision to decriminalise same-sex relationships. The LGBT community had been for years waging a battle against the provisions of Section 377 of the Indian Penal Code (IPC) that had turned them into criminals over their sexual orientation. In 2009, the Delhi High Court had shown the way by striking down the criminality clause, in the Naz Foundation case.
The High Court had said that the Section relating to criminality violated Articles 14, 15 and 21 of the Constitution of India. But its efforts went in vain as the Supreme Court restored the criminal provision. Early last month, the court showed courage in overturning its own verdict on the ground that the criminalisation part of Section 377 violated the right to equality and the right to live with dignity — both enshrined in the Constitution as fundamental rights. It can now be proudly said that India is no longer on the list of 70-plus nations that criminalise same-sex relationships.
The second historic ruling of a social kind was another instance of decriminalisation: That of adultery. The apex court knocked down Section 497 of the IPC on the grounds that the provision had not treated men and women equally, that it was arbitrary, and that it was violative of the right to equality and the right to equal opportunity to women. One of the judges on the five-judge Bench, Justice RF Nariman, stated that it violated Articles 14 and 21 of the Constitution. The judges agreed that adultery can be a civil offence, and be cited as a reason for divorce etc.
In the third instance of a similar kind, in the last week of September, a five-judge Bench through a majority verdict, directed that the venerated Sabarimala temple in Kerala be opened up for women of all ages. Certain provisions of the Kerala Places of Public Worship (Authorisation of Entry) Rules, 1965, which apply to the Sabarimala temple, banned women of menstruating age from entering the shrine, reigned supreme until now.
It does seem that the Supreme Court has with a messianic zeal, decided to break old, though far from rusty, shackles. These three judgements were preceded by another historic court ruling, rendering as unconstitutional the practice of instant triple divorce (by the male, of course) among Indian Muslims. One does hope that more such verdicts will follow, and contribute to the creation of as equal a society as is possible.
(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)