2018: The Year of Constitutional Morality

The year 2018 has been a year of great achievements for the Indian Judiciary, especially for the highest Court of the land, with a multitude of constitutional bench decisions paving the way for an era of constitutionalism and rule of law. Through its judgments on the issues of adultery, euthanasia, criminality of homosexuality, right of women to enter temples, inter-faith marriages, the Supreme Court has generated such revolutionary waves which bear far reaching consequences towards defining rights of the most vulnerable groups. The Court, through its mandates, has sent a strong message that “we have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination”.

The best instances of this notion have been the cases where the Supreme Court unanimously held unconstitutional, on the touchstone of Articles 14, 15 and 21 of the Constitution, the several decades old legal provisions under Sections 377 and 497 of the Indian Penal Code, 1860 which carried the archaic baggage of slavery.

In the case of Navtej Johar v Union of India, the Court legalised sexual activities between two consenting adults while observing that “the overarching ideals of individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corners of our monumental Constitution forming the concrete substratum of our fundamental rights that has eluded certain sections of our society”. The Court even went to the extent of suggesting that “history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries”. Similarly, the archaic law under Section 497 which made it a punishable offence for a man to have sexual intercourse with a ‘wife’ of another man without the consent of such man was held to be unconstitutional on the ground that thinking of adultery from the point of view of criminality was a retrograde step and that it existed only “for the benefit of the husband, for him to secure ownership over the sexuality of his wife” and “aimed at preventing the woman from exercising her sexual agency”. (Joseph Shine v Union of India). The idea of “a woman as a possession of her spouse” was held to be completely contrary to the constitutional ideals of dignity and equality.

Again, in the case of Shafin Jahan v Ashokan K.M., the Apex Court gave effect to the personal choice of an adult woman to marry a person practising a different religion. It overturned the decision of Kerala High Court, which, suspecting it to be a case of forcible conversion, had not only ordered the “young girl at a vulnerable age” to be sent to “the custody” of her parents “until she is properly married”, “as per Indian tradition”, but also ordered expeditious police investigation into the matter. Another example of recognising personal autonomy was the case of Common Cause v Union of India wherein the Supreme Court allowed passive euthanasia and gave permission for execution of a living will of persons suffering from chronic terminal diseases and likely to go into a permanent vegetative state. It also laid down detailed procedural guidelines for formation and execution of a living will. Through this case, the Court has recognised right to have a dignified death which is an extension of right to life under Article 21 and also includes personal liberty, and self- determination.

The biggest and the hardest blow to the societal morality was the case of India Young Lawyers Association v State of Kerala which recognised the right of Hindu women to freely practise their religion irrespective of their age. It allowed women of all age groups to enter and offer worship at the temple of Lord Ayyappa at Sabrimala in Kerala, holding such a denial to not form part of the essential tenet of any religion. The Court highly deplored the societal practice of not allowing women of menstruating age to enter the temple as being exclusionary and discriminatory and, therefore, held the provision of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 to be unconstitutional as per Articles 14, 15, 21 and 25.

Moreover, as a welcome step, in a bid to have open courts in order to “foster public confidence” the Court granted permission for live-streaming of the proceedings of Supreme Court. Also, in the case filed against the imposition of ban on the screening of the movie Padmavat in four states, the Supreme Court stayed the ban observing that banning a film, expression of a creative content, from being exhibited is a great shock to the constitutional conscience (Viacom 18 India Pvt. Ltd. V Union of India).

These verdicts, therefore, undoubtedly, acknowledge the Apex Court as the forerunner of the principles of Constitutional ideals. However, the year also witnessed several decisions which questioned the credibility of the Supreme Court in being the sentinel of the fundamental rights of the citizens.

The year began with the news of mystery surrounding the death of Judge B.H. Loya, who was presiding over the CBI court in the Sohrabuddin Sheikh fake encounter case and had died in suspicious circumstances in 2014. The Petition filed seeking inquiry into the death of the judge was dismissed by the Court on the ground that there was no reasonable suspicion about the causes or circumstances of the death to merit further enquiry (Tehseen Poonawalla v Union of India). Declaring Chief Justice to be the unconditional ‘master of the roster’ the Supreme Court, in Shanti Bhushan v Supreme Court of India, dismissed the Petition which was filed in the wake of the allegation that many important cases where being allocated to the junior judges. The Petition was filed for enhancing transparency in the process of allocation of the cases to the judges which was rejected on the ground that being the master of the roster, the Chief Justice need not consult any other judges or the collegium in such administrative decisions.

In a major setback to the rights of the people belonging to the scheduled castes and scheduled tribes, the Supreme Court in Subhash Kashinath Mahajan v State of Maharashtra diluted the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 citing incessant misuse. The Court enacted a detailed set of provisions for mandatory preliminary inquiry before registering a case, prior sanction before arrest and laid down provisions for anticipatory bail, which were in absolute contradiction to the objectives of the Act and thereby belittled the legal rights of the SCs and STs. Moreover, the Court also refused to interfere in the issue of reservation in promotion by refusing to refer the case of M. Nagaraj to a larger bench which had imposed conditions for granting promotions to the SC/ST employees (Jarnail Singh v Lachhmi Narain). The Court disallowed the argument that there was a presumption of backwardness with respect to these communities by virtue of having been so defined in the Constitution, thereby absolutely diluting the concept of reservation in promotion.

Moreover, the Court also looked unperturbed by the large scale of the Bhima-Koregaon violence, which allegedly was a planned attack on a silent Dalit group which had gathered to commemorate 200th anniversary of battle at Bhima-Koregaon (Romilla Thapar v Union of India). The Court not only refused to order SIT probe into the violence, but also failed to grant any relief to the activists who were arrested for their alleged links to Maoist insurgents in the wake of the violence while holding that the arrest was not merely because of dissent or difference in political views but there was prima facie material to show their link with the banned CPI (Maoist) organisation.

Another major disappointment was to the right to privacy regime, which was declared to be a fundamental right by the Supreme Court itself, in the Aadhar matter regarding the validity of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 in Justice K.S. Puttaswamy v Union of India. Even after acknowledging the difficulties with the implementation of the Act and the misuse of the provisions by various authorities- private and public, the Court held it to be constitutional and essential for subsidies, benefits or services to be given by the Central Government or the State Government. Fortunately, the use of Aadhar by private players were struck down, still, the Court allowed the government to retain unreasonable control over the citizens.

Concluding remarks

It would not be an aberration to refer to the foregoing year as the year of Constitutional Morality as the top court of the country has functioned effortlessly to move towards the ideals of constitutionalism by attempting to uproot the established principles which enjoy strong societal legitimacy. The best example of this progressive attitude donned by the judges is the Sabrimala judgment which attracted widespread protests from the religious and other groups demanding precedence to the societal morality. There is an evident shift in the values of the Court from preserving group identity to the idea of individuality—individual freedom, liberty and autonomy.

However, unfortunately, the Court also seemed wavering from its cherished principles of freedom of speech, expression, liberty and dignity in a number of cases mainly relating to the people belonging to the Scheduled Castes by refusing to interfere in matters affecting their rights. In those cases, the approach of the judges seemed to be more exclusionary rather than being inclusive, which has left the most vulnerable voiceless and remediless. Moreover, there were certain verdicts which were prima facie politically motivated and were highly criticised, especially the decision in the case of death of Judge Loya.

A lot has, definitely, been achieved and an abundance is yet to be attained, in terms of transparency and credibility of the judiciary, for our country to become progressive, not merely legally but also socially and for every citizen equally.