Recent SC verdicts needed, but they went too far: Jaitley
ANALYSING LAW Judges get ‘carried away and want to be part of history’ while writing epochal verdicts, says finance minister
NEWDELHI: The path-breaking judgments of the Supreme Court on gay sex, adultery and the entry of women of all ages into Sabarimala were needed, and, in some cases, struck down or changed aspects of law that needed to be struck down or changed. At the same time, however, they are problematic because they ventured beyond the points of law being questioned, and linked these to larger constitutional rights.
That was the opinion of India’s finance minister Arun Jaitley, who is also one of India’s best known legal minds and who said he had spent time studying all the judgments in detail. The minister was speaking at the 16th Hindustan Times Leadership Summit on Saturday.
“While writing these historical judgments ,” the judges “get carried away and want to be part of history,” he said. “You go a step further.” For instance, explained Jaitley, referring to the gay sex case where the Supreme Court’s judgment made individual sexual activity a part of free speech (a fundamental right). The court ruled in September that gay sex among consenting adults was not an offence, reading down a British-era section 377 of the penal code that penalises people for their sexual orientation. “Sexual activity as a part of free speech is excessive. The consequences may not be on decriminalisation. But free speech is an entirely different gambit. Free speech can be restrained on grounds of security, sovereignty and public order. And mind you, because there was a tendency to create new fundamental rights everyday .... , and say it’s free speech , then do you restrain any form of sexual activity, homosexual or bisexual in a school hostel prison or army frontier – unless in a subsequent view it is clarified this fourth observation that was not necessary for deciding the case. I think it requires further debate.”
In the case of adultery, too, the finance minister said the court ventured into areas best left alone. He clarified that the quashing the adultery law was in order and said it was “very badly worded”. The old law said that a man could be tried under the adultery law for having a relationship with the wife of another man, without the permission of the latter. But the court didn’t stop at scrapping this. “The court went a step further, when it said adultery was like other matrimonial offences, these are personal wrongs and not public wrongs therefore outside the criminal law. Now will it cover bigamy and polygamy also? Will it cover cruelty? Will it cover dowry offences – if this was the case, the judgment would be wholly anti women,” said Jaitley. The judgment could, he observed, change the Indian family system into a western family system where the fragility of marriages may increase.
And because India does not have the kind of social security systems the West has, and because it doesn’t have the kind of divorce settlements the West has, this judgment could actually be anti-women and even lead to their “destitution,” Jaitley said.
Not everyone agreed. Senior advocate Sanjay Hedge said: “The minister seems to harkening back to the glorious past and to values which are these days called ‘sanskari’. It reflects a patriarchal mindset which makes a marriage wholly dependent on ‘purity of women.’ Constitutional morality has outpaced such thinking and the judgment is much more reflective of the times India actually lives in.”
The court’s verdict on the entry of women of all ages into Sabarimala came in for special criticism from Jaitley who said the court has been selective in targeting one practice.
“If you want to take a progressive step under article 14 and 21, it will apply uniformly against all religions. It cannot happen that you select a practice and apply it because that will have many social consequences in a pluralistic society like India,” Jaitley said. For instance, it could mean polygamy, oral divorce, or other religions where women are not allowed entry into places of worship are no longer allowed, the minister added.
“If you want to be progressive and bold, you can’t be selectively so,” Jaitley said. “If you are willing to proclaim you must be willing to strike -not only willing to strike at one target but willing to uniformly strike.”
Jailtely attacked the 1952 Bombay high court judgment of Narasu Appa, which he described as one of the worst judgments ever delivered in India. He explained that this judgment holds that all laws and tenets, including personal and religious ones, must be tested on the touchstone of fundamental rights. According to Jaitley, the views expressed by MC Chagla and PB Gajendragadkar, whom he described as two legendary judges, held that this touchstone should not apply to religious practices and personal laws. “We have to make up our mind,” he said.
Jaitley said the right opportunity to clarify this issue and overrule that judgement was in the Triple Talaq case where the court, in August last year, said the practice of instant divorce was illegal, but “the reasoning was that the practice was based on arbitrariness and hence we quash it”. The court sidestepped “the issue whether the personal laws and religious practices must also abide by the constitutional guarantees.” One of the judges flagged this, he added, but said “we leave this open for a future case.”
In the Sabarimala judgment as well , one of the leading judgment alluded to this and seemed to make an argument for overruling the 1952 judgement but stopped short of doing so. The judgment said “we leave it open for a future case”, Jaitley said.
Former Supreme Court judge Markandey Katju wrote in a Twitter post: “There are thousands of temples, mosques, and gurdwaras in India, many with their own rituals and practices. There are some temples which do not permit entry to women, and some to men. Should courts now start interfering in all these?”