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Civilisation

Renovation of Pillars of Democracy

Supreme Court, Apex Court, SC, whatever you may call it, it has been in the headlines for quite a while now, and rightfully so, since the judges have been surprisingly very forward and adaptive in their verdicts. India’s latest judicial achievements include:

  • Death Penalty for Nirbhaya convicts
  • Amendment of section 377
  • The Triple Talaq
  • The scrapping of Section 498
  • Laws for entering Sabarimala Temple
  • A minimal compulsion for linking Aadhaar
  • Privacy laws and many more

 

Also, for a country that plagues with sexual stigma, two of these laws are pro-sexual liberation and gender sensitized. For the biggest constitution in the world which has taken inspiration from not just other constitutions of the world but also from ancient scripts like the Manusmriti, the Vedas and the Upanishads, these amendments were long overdue.

”Justice delayed is justice denied” is a term we are all familiar with but I believe in “सुबह का भूला अगर शाम को घर आ जाए तो उसे भूला नहीं कहते” i.e. Better late than never. Justice Indu Malhotra said and I quote, “History owes an apology to the LGBTQ community” she further adds, “The members of this [LGBTQ+] community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognize that homosexuality is a completely natural condition, part of a range of human sexuality.” And this, I think is history in the breaking (pun intended) where we see the judicial pillar of India seeks adaptation with the modern times. It’s like renovation.

To prove my point, that the benches have been most considerate and unbiased in their verdicts can be proven from these excerpts:

Justice Misra:

“Any provision treating a woman with inequality is not Constitutional.”

“Ancient notions of a man being perpetrator and woman being a victim no longer holds good.”

“…Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life…Privacy of the body entitles an individual to the integrity of the physical aspects of personhood.”

Justice Chandrachud on Adultery:

“The right to privacy depends on the exercise of autonomy and agency by individuals. In situations where citizens are disabled from exercising these essential attributes, Courts must step in to ensure that dignity is realized in the fullest sense. Familial structures cannot be regarded as private spaces where constitutional rights are violated. To grant immunity in situations when the rights of individuals are in a siege is to obstruct the unfolding vision of the Constitution.”

And finally, my personal favorite from Justice Indu Malhotra on Section 377:

“Homosexual behavior is not an aberration but a variation…”

Although, sometimes benches differ, and necessarily so, for example, in the Sabarimala case, Justice Malhotra dissents saying “What constitutes essential religious practice not for Court to decide.”

But at the end of the day, the common point for commencement of these talks at least lies in our hands, the citizens of this country, who filed PILs, challenged the establishment, got to the roots and most importantly, kept questioning. Because change is the only constant.

4 comments
  1. Parth

    There is a major factual error here. The Constitution of India hasn’t taken any “inspiration” from the ancient texts mentioned in the article namely Manusmriti, Vedas and Upanishads. Moreover, Ambedkar who can be referred to the man behind the drafting the Indian Constitution had publicly burnt the Manusmriti in 1927 as he believed that it was the very reason that caste based discrimination existed.

    1. Manas Daxini

      Hi Parth,
      Thank you so much for reading this piece. My research must be limited since I did not know about the burning of Manusmriti by Ambedkar. Although, referring to all the patriarchy and sexism that prevails in the constitution comes from the British Raj who during the colonial era came across this text and liked how sexist it was regarding ignorance towards women’s rights. They incorporated a lot of laws for us Indians from these scripts which made their way into our constitution even after Independence. Eg. section 377 and the fact that Manusmriti levied fine if two women are found getting physically intimate.
      Also, It was one of the first Sanskrit texts which has been translated during the British rule of India in 1794, by Sir William Jones, and used to formulate the Hindu law by the colonial government. (ref. “P Bilimoria (2011), The Idea of Hindu Law, Journal of the Oriental Society of Australia, Volume 43, pages 103-130” &
      “Donald Davis (2010), The Spirit of Hindu Law, Cambridge University Press, ISBN 978-0521877046, page 13-16, 166-179”)
      I would agree on the part of Vedas and Upanishads not being a part of the constitution, since I thought they included Manusmriti. I stand corrected.
      Keep reading our blog posts 🙂

  2. PARTH SALUJA

    Hello Manas,
    I think you are confusing the Constitution of India with statutes i.e. the laws. Section 377 is a law under the Indian Penal Code which was formulated in 1860 during the British Raj, which criminalises sexual intercourse against ‘the order of nature.’ So it is a colonial law. Moreover, homosexuality was never considered a taboo until the British era. In fact, it was enacted on the basis of the Holy Bible which considers homosexuality or sexual intercourse for any purpose other than procreation, a sin. The British ironically decriminalised it in their country later on.
    Now, coming to the Constitution of India, which was not formulated by the British but by the Constituent Assembly after we got our Independence. It cannot be called patriarchal or sexist when it is based on individualistic liberal values. There is not even a single sentence or reference to the above-mentioned vices in it. In fact, it is the constitution, on the basis of which, homosexuality was decriminalised and that part of 377 was held to be ‘unconstitutional’. Same goes in the case of Sabarimala Temple.
    I would go on to say that the Constitution is the spirit of India and is the source of the various freedoms we enjoy. To call the Constitution a sexist or a patriarchal document is ridiculous. To end, I would like to quote the Preamble of our liberal and one of the best-crafted Constitutions to give you the crux of its contents.
    “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

    JUSTICE, social, economic and political;

    LIBERTY of thought, expression, belief, faith and worship;

    EQUALITY of status and of opportunity;

    and to promote among them all

    FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

    IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November 1949, do HEREBY, ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”

    Please read the Constitution of India. It is a beautiful document when interpreted. Believe me, it’s worth it. 🙂

  3. Manas Daxini

    I’m sure about the beauty of the most enriching legal document of this planet. Although, it seems my debate is with a rather learned law student.
    I do not proclaim the sanctity of this document to be a hoax.
    I was, actually, considering the statutes (IPC and CrPC) to be a part of the constitution.
    I stand corrected.
    No wonder these laws were declared ‘unconstitutional’ since they’re a direct blow on the democracy and equality it promises to citizens.

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