Last week, India’s Supreme Court delivered no less than 20 news-making judgements affecting the lives of most 1.2 billion Indians. This was due to the outgoing Chief Justice Dipak Misra leaving his mark on India’s legal history, writes Kul Bhushan.
In several path-breaking judgements, the Supreme Court this month pronounced judgements on gay sex, adultery, allowing women in a major temple, identity card data, the right to die and elephant conservation, among others. Most of these judgements have made not only top news in India but around the world.
Women Can Enter Temple
On 28 September 2018, the Supreme Court scrapped a centuries-old practice that prevented women of menstruating age from entering a revered temple in the southern state of Kerala.
Excluding women of menstruating age between 15 and 50 years from the Sabarimala temple of Hindu god Ayyappa goes against their right to practice religion, as enshrined in article 25 of the Indian constitution.
But Justice Indu Malhotra, the only woman on the five-judge bench, dissented with the majority ruling, arguing, “What constitutes essential religious practice is for the religious community to decide, not for the court.”
But in a judgment co-written with justice Khanwilkar, chief justice Dipak Misra said the dualistic approach degraded the status of women. He said women are not lesser or inferior to men and the patriarchy of religion cannot be permitted to trump over faith.
Ram Temple Dispute
Stones at the disputed Ram Janmabhumi-Babri Masjid site in Ayodhya
A Supreme Court decision on 27 September has ensured that the case of whether or not to build a Ram temple at the site of a razed mosque in Ayodhya, the birthplace of Lord Ram, will be heard from October 29. A three-judge bench led by Chief Justice of India Dipak Misra refused to revisit a 1994 ruling that the government can acquire land that a mosque is built on – a decision that means that the politically-charged temple-mosque dispute over many decades can be taken up without any delay. This is a highly politically charged issue that could be decided before the end of the year, before the general elections.
Also on 27 September, the Supreme Court struck down a 158-year old law that makes adultery a punishable offence for men. Chief Justice Misra said that women must be treated at par with men. He added that there can’t be a social license to destroy the institution of marriage and commented that the law violates Right to Privacy to some extent. The old law was unconstitutional and fell afoul of the Right to Life and Personal Liberty) and the Right to Equality.
“Adultery can be ground for any civil wrong. There can’t be any social license that destroys the matrimonial home, but adultery should not be a criminal offence,” Justice Misra said. Stating that a wife was not a chattel of the husband, the Chief Justice said, “Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution. It’s time to say that a husband is not the master of a wife. Legal sovereignty of one sex over another sex is wrong.”
Identity Card Privacy (Aadhaar)
Nine years ago, the Government of India launched a biometric identity card with a unique 12-digit number for every Indian. Now over 1.22 billion have been issued and provide an official identity to the people to open a bank account, get a driving license or a mobile. The poor are better off with this Aadhaar or foundation card as they get their subsidies and other government payments without deductions by the officials paying them the cash.
However, some serious concerns have been voiced about privacy of the data and petitions were filed challenging the validity of these cards. On 26 September, a five-judge bench ruled that the card will stay, albeit with conditions. Among other things, the bench declared that the requirement to link phone numbers and bank accounts to Aadhaar is no longer required. They also stated that Aadhaar is not mandatory for school admission.
Gay Sex Legal
“Gay sex is not a crime.” When the Supreme Court announced this judgement on 6 September, a tsunami of joy, screams and dancing went up from the gay community advocating for this freedom. This judgement brought India in line with modern countries which have legalised gay sex.
The court threw out the 1861 British law modelled on the Buggery Act of 1533, used to criminalise sexual activities “against the order of nature”. Thus, Article 377 of the Indian Penal Code, as the gay sex law was named, became unconstitutional. The five-judge constitutional bench decriminalized gay sex between consenting adults, further declaring that victimising homosexuals is unconstitutional, and henceforth, a criminal act. This judgement will be presented in a Kenya court on this issue.
Criminalisation of Politics
On 25 September, in his judgment on petitions seeking to ban charge-sheeted politicians from contesting elections, the CJI expressed concern at the rising criminalisation of politics but said it was not for the court to lay down such rules and parliament was the right authority to deal with the matter.
Elephants have the right of way. On 9 August, a three-judge constitutional bench headed by Justice Lokur directed the Tamil Nadu government to seal or shut down 39 resorts and hotels constructed on an elephant corridor in the Nilgiri Hills, within 48 hours. This was a historic judgement by the Supreme Court for animal lovers and for conserving wildlife.
Right to Die
Earlier, on 9 March, the Supreme Court declared that the right to die with dignity is a fundamental right. The bench headed by Chief Justice Misra upheld the legal validity of passive euthanasia, albeit under strict guidelines. The judgement stated that withdrawal of life support will only be permitted through a “living will” and the patient must either be terminally ill or in a vegetative state.
These are just a few of the 2018 judgments that affect the common people directly and so grabbed prime TV time and front-page headlines in India as well as worldwide.
Kul Bhushan is a regular contributor
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