On 7 June, 1949, during a constituent Assembly debate, one of its prominent members Mahavir Tyagi commented that the "seats they occupy are the seats of gods", while referring to the judges and the higher judiciary. His observations were dismissed by BR Ambedkar as mere "feelings" which were perhaps of lesser significance for the assembly that was debating the constitutional edifice of the country.
Tyagi was instead asked to express only his "opinions" on the matter.
Ambedkar’s rebuke to Tyagi was important for the fact that judges should not be elevated to the stature of God as it runs the risk that they might assume morality other than the one dictated by the Constitution that they tend to uphold.
The Supreme Court of India and more specifically the Chief Justice of India Dipak Misra, through three judgments, pronounced in last few weeks, has in 'letter and spirit of law' upheld the basic spirit of the Indian constitution: equality before law, ignoring other moralities dictated by different 'sects' and sections of the society.
Article 15 of the constitution reads: “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them". And, it also makes the State responsible for checking and eliminating any such discrimination perpetuated by any section of the society.
The Supreme Court in three cases pertaining to Section 377 of the Indian penal code (IPC), Section 497 of IPC and now in the Sabarimala temple entry case brought to an end forms of discrimination that was dictated by certain 'religious and societal morality' that did not weaned off with the passage of time.
On Friday, Chief Justice Misra held that the age-based restriction on entry of women in Kerala’s Sabarimala temple cannot be justified as an essential part of the religion. The constitutional bench which had five judges, with one judge dissenting, held that any exception placed on women because of biological differences violates the Constitution.
Earlier on 6 September, the Supreme Court had restored 'inclusiveness' by decriminalising part of Section 377 that made consensual sex between homosexuals a crime.
The court while delivering a judgment observed, “Section 377 IPC, so far as it criminalises even consensual sexual acts between competent adults, fails to make a distinction between non-consensual and consensual sexual acts of competent adults in private space which are neither harmful nor contagious to the society. Section 377 IPC subjects the LGBTQ community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBTQ community by subjecting them to discrimination and unequal treatment."
On 27 September, a bench headed by CJI Misra struck down the adultery law, pertaining to Section 497 of IPC and Section 198 of Code of Criminal Procedure (CrPC), as unconstitutional through a unanimous judgment.
The court ruled, “The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by. A legislation that perpetuates such stereotypes in relationships, and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution. There is therefore, no justification for continuance of Section 497 of the IPC as framed in 1860, to remain on the statute book”.
Chief Justice Misra, in judgment written for himself and Justice AM Khanwilkar held, “The beauty of the Indian Constitution is that it includes ‘I’ ‘you’ and ‘we’. Such a magnificent, compassionate and monumental document embodies emphatic inclusiveness which has been further nurtured by judicial sensitivity when it has developed the concept of golden triangle of fundamental rights. If we have to apply the parameters of a fundamental right, it is an expression of judicial sensibility which further enhances the beauty of the Constitution as conceived of. In such a situation, the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building”.
The judgment added, "That is the manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilised society. The civility of a civilisation earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. Any provision that might have, few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception. A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master. Equality is the governing parameter. All historical perceptions should evaporate and their obituaries be written."
In all these three cases, the chief justice of India Dipak Misra, through powerful judgments, not only pronounced legal verdict that tends to correct certain ‘legal’ wrongs; but also unleashed a spree of social reforms.
By striking down Section 377, Section 497 of IPC and now with Sabrimala judgment, by all means, the apex court and the chief justice of the country upheld the "emphatic inclusiveness" that is the cornerstone of the Indian constitution.
Updated Date: Sep 28, 2018 23:58 PM