Why 'modern minded' Supreme Court judges need to exercise restraint

Markandey Katju
Markandey KatjuOct 08, 2018 | 13:50

Why 'modern minded' Supreme Court judges need to exercise restraint

Recent decisions of the Supreme Court of India such as the decriminalisation of gay relationships, striking down the adultery law, and granting entry to the Sabarimala temple to women of all age groups, indicate that the court has embarked on a hyperactive, perilous and highly unpredictable path, much like that of the US Supreme Court in the 1930s, which can only end in total discomfiture.


It is regrettable that the judges who gave these verdicts have exhibited a lack of the self-restraint expected of judges of a superior court.

supreme-court-690_100818123014.jpgJudges of late have exhibited a lack of restraint delivering verdicts in key cases. (Source: Reuters)

Take for instance the Sabarimala judgment (in Indian Young Lawyers Association vs Union of India). Here was a centuries-old practice prohibiting entry in the temple to menstruating women, not to denigrate women, but because the presiding deity Lord Ayyappa, is a celibate (Naishtik Brahmachari), and his devotees, the Ayyappans, have to remain celibate for 41 days before setting out to visit the temple.

The majority judges relied on their own subjective, abstract, theoretical notions of women's dignity, equality, liberty etc to declare the practice unconstitutional. But should adjudication be done in this manner, divorced from actual Indian social realities and practices? The sole dissenting judge, Justice Indu Malhotra, who has displayed the balance and restraint which characterises great judges, has rightly pointed out that India is a country of great diversity, and there are thousands of temples, mosques, gurdwaras, dargahs, etc and many of them having their own peculiar rituals and practices, which judges would be well advised not to interfere in.


indu-690_100818123800.jpgJustice Indu Malhotra has displayed the balance and restraint which characterises great judges. (Source: PTI)

There are some temples where women are not permitted, and some where men are not. Will the court now interfere in all these?

And what about mosques?

In theory there is no bar on women entering mosques, but in practice hardly 1 or 2 per cent mosques in India permit entry to women, and consequently they have to pray at home.

Will the rationale of the Sabarimala verdict now be applied to mosques as well? Or is women's dignity, equality etc to be selective for Hindus alone? It can be seen that the judgment has opened up a Pandora's box, with far-reaching consequences, and time alone can tell what will happen in the future.

Let us consider now the judgment striking down section 497 of the Indian Penal Code, the law against adultery (John Shine vs Union of India).

One of the reasons given for declaring the law unconstitutional was that it does not invoke criminal charges against the woman who was partner in the adultery, and does not criminalise married men having sex with unmarried women or widows, and hence was violative of Article 14, the equality provision in the Constitution.


But it is well settled that a law cannot be declared unconstitutional merely because it is under inclusive. For instance, a law prohibiting use of loudspeakers near a hospital cannot be declared unconstitutional simply because it does not also prohibit use of car horns or shouting near hospitals, or use of loudspeakers near schools. Almost all laws are under inclusive.

But one of the judges on the bench, Justice DY Chandrachud, goes even further. He observed:

"Sexuality cannot be disassociated from human personality. For to be human involves the ability to fulfil sexual desires. Autonomy in matters of sexuality is thus intrinsic to a dignified human existence. Human dignity both recognises and protects the autonomy of the individual in making sexual choices.”

chandrachud-690_100818123542.jpgIs Justice Chandrachud imposing subjective notions? (Source: Facebook)

He goes on to say, "Section 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence.”

Now these may be the personal, but in my view, subjective notions of Justice Chandrachud, but he had no business imposing them into Article 21 of the Constitution. Most Indians, including most women, regard it horrifying, revolting and highly improper for a married woman to have sex with a man other than her husband. So how can Justice Chandrachud say that Article 21 of the Constitution, which gives the right to life and liberty. includes a right of married women to have sex with a man other than her husband?

As Justice Oliver Wendell Holmes, the celebrated judge of the US Supreme Court said in Lochner vs New York case, a judge cannot impose his own personal notions or theories into the Constitution or the law. In Griswold vs Connecticut case, Justice Hugo Black of the US Supreme Court said, "Unbounded judicial creativity would make this court a day-to-day constitutional convention.”

In Reflections on the Reading of Statutes, Justice Felix Frankfurter of the US Supreme Court said that great judges have constantly admonished their brethren of the need for discipline in keeping within their limitations.

It is a settled principle that there is a presumption in favour of the constitutional validity of statutes, and the court must make every effort to uphold it, even by giving it a strained interpretation vide Government of Andhra Pradesh vs P Laxmi Devi, but it seems some of our 'modern minded' judges are taking a different approach, viz striking down any law which displeases them, or does not fit into their abstract notions of modernity.

And of course Articles 14 and 21 of the Constitution, which have been so interpreted that they can now mean anything to anyone, are handy tools to attain that objective.

Last updated: October 09, 2018 | 13:13
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