Events & Issues

New Delhi, 4 October 2018

Social Reforms

COURTS’ INDISPENSABLE SHARE

By Dr. S Saraswathi

(Former Director, ICSSR, New Delhi)

The Supreme Court has at last stepped in vigorously to introduce vitally significant social reforms to end centuries of injustice and inequality thriving in social life and relations. Late last week, two major verdicts were given -- one to decriminalise adultery and another to allow females of all ages to offer prayers at the famous Aiyappa Temple at Sabari Malai in Kerala.   These are in quick succession to the earlier landmark judgement decriminalising gay sex.

Apart from the significance of the contents of the  judgements, they point to the important role the judiciary has come to play in our country, to cleanse the system of unwanted and archaic laws and the society of impure and prejudiced thoughts and lead the country towards a rational and equalitarian social order.

Critics are not wanting, who indulge still in archaic thinking that matters of worship and prayer, faith and beliefs, customs and rituals cannot be subjected to State regulation as they fall in the realm of religious faith and devotion, and cultural characteristics. But, nobody can knowingly violate basic freedom and equality enshrined in the Constitution, and claim immunity in the name of religion and culture.

Strong and true rationalists who question any blind faith are not likely to join the fight for equal rights in a matter like temple entry. Their object is to eradicate the hold of beliefs and rituals over everybody. This is conveniently overlooked in the present controversy.

While Parliament finds it difficult to push legislations due to party divisions on every issue, courts can come to the rescue by directing essential social reforms needed in the country. The present Chief Justice has succeeded in this endeavour to the extent possible in his tenure that came to an end on 2^nd October.

Agreed, there may be differences of opinion even among staunch protagonists of freedom and equality as to the need for judicial intervention in recasting generations of social practices like prohibition of temple entry to women of a certain age-group or on certain days. Ideas of purity and impurity, however irrational, do not allow smooth changes for centuries not only in India, but all over the world. But, that cannot be the reason for statutory or customary discriminations to continue indefinitely in the fast changing material life and protected as personal law beyond State regulation.

The Supreme Court’s readiness in social reforms may find both friends and foes. Questions involved are also subject to varied interpretations. To the devotees, an issue like entry into Sabari Malai Temple is not a question of equal rights to be asserted as a Constitutional right of gender equality, but a social convention inbuilt in our social and cultural life so deep as to make women themselves free and willing partners in the segregation.

Therefore, there remains the task of educating men and women devotees on the Court’s decision if reform is intended to be absorbed by the society and not remain on paper. Our education and upbringing have to reflect court-directed reforms.

Another important reformative judgement was given on the question of adultery by deleting Section 497 of the Indian Penal Code as “unconstitutional” and manifestly arbitrary. It subjugated a married woman entirely to the will of her spouse, as elucidated by Justice Chandrachud. It is a position akin to slavery. The court’s verdict is likely to find popular support more easily. Doubtless it deals with equality and equal rights.

Section 497 of the Indian Penal Code written in the colonial era says: “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 consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor”.

The Section, as it is worded, grants the right of ownership of his wife to the husband especially her sex life. It also implies the right of the husband to lend or sell this right to another man; it is theft of a husband’s property if his wife had relations with another man without his knowledge and consent.

According to the judges, marriage does not mean for the women surrendering her autonomy totally to their husbands. The concept of individual freedom is not known to majority of Indian men and women, who are taught the virtues of obedience and submission of wives to their husbands in all situations. That the woman loses her identity and legal right with marriage recognised under the doctrine of Coverture is not recognised in the Constitution, as pointed by one of the judges.

Adultery is a crime in many countries in Asia and Africa, and also in some States of the US. It is decriminalised in a number of countries like China, Japan, Brazil, Australia, and several European countries. In the ancient world, the offence was fit for severe punishment. Scrapping of the Indian law on adultery is a strong and progressive judicial decision, but it also needs to be taken to the people to become effective.

In the series of court directed reforms, the crowning glory may go to the abolition of Triple Talaq – a matter of rights of Muslim women. Last year, the Supreme Court had ruled by a majority that the law that allowed Muslim men to divorce their wives by simply uttering the word “talaq” three times was unconstitutional and un-Islamic. By this, it sent out an unambiguous message that personal law can no longer be privileged over fundamental rights. That case was initiated suo motu by the Supreme Court. 

The opinion of the minority (of one judge) was based on the notion that triple talaq was a matter of personal law and therefore entitled to Constitutional protection. Some sections of people believe that practices under personal law of any religion have to be protected and cannot be annulled by legislation by Parliament or judicial verdict irrespective of the injustice or irrelevance perpetrated.

The Bill introduced by the Government sailed through the Lok Sabha, but blocked in the Rajya Sabha. The Government has issued an ordinance making “triple talaq” a punishable offence after the Court had adjudicated on the interpretation of the Quran even while upholding the Indian Constitution.

This ordinance, irrespective of its worldly or religious significance to the community concerned, introduces a vital social reform in which the judiciary has been the main supporter to the law maker. Indeed, no social reform relating to any particular community or to all citizens which involves changes in current practices is possible without Court’s interpretation of Constitutional rights. Family law is no longer a matter restricted to families.

There is need for wholesale social reform devoid of party and vote bank politics if all citizens of India are to march in equal pace. The three cases cited above are only illustrations of Court’s indispensable share in bringing about social reforms. ---INFA

(Copyright, India News & Feature Alliance)