Expert Speak India Matters
Published on Oct 06, 2018
Considering that there are occasions when our laws are being none-too-frequently challenged in courts halfway through implementation, or court verdicts are sought to be reviewed, there may be a need to find ways to pre-empt such situations.
SC verdicts may have re-written the nation’s cultural heritage It is difficult to define the ‘cultural heritage’ of any nation and people as much as they could be listed out on a full newsprint roll. With this as the background, in the years and decades to come, some of the recent landmark judgments of the Supreme Court may end up re-writing the ‘cultural heritage’ of this nation, going way beyond the politics of ‘cultural nationalism vs. constitutional nationalism’. The reference, of course, is to the SC judgments in the cases relating to same-sex marriage, adultery, both punishable offences under the penal code until now, and also on women’s entry and triple talaq, which is now law in the form of an ordinance. Then, there is the namaz case, as linked/limited to the pending ‘Ayodhya ownership case’ pertaining to the disputed land. Of them, the namaz case verdict alone may have an election-centric political context. The triple talaq issue has now come into the legislative precincts following President Ram Nath Kovind promulgating an Ordinance in the matter recently, and thus has become a politico-electoral issue even more. Then, there are two other verdicts, one on the constitutionality of the Aadhar cards, and the Maharashtra police arresting five activists. The former is an academic/intellectual’ exercise. The latter may have a little more of political, if not electoral purchase, at least as things stand. It remains to be seen what shape do the police investigations into the alleged conspiracy to target Prime Minister Narendra Modi takes. The fact that the court thought it wise to detain the five arrested activists in house arrest could be a pointer. It remains to be seen if a separate case would now be filed against them — or, would have to be filed — independent of the ongoing ‘Bhima-Koregaon violence’ investigations, and transferred to specialised agencies like the CBI or the NIA, which again should have been done in the first place.

Lost innocence

The social media especially has reacted strongly to the ‘Sabarimala case’ verdict, permitting women in the reproductive, menstrual age-group, to the hill-shrine of the celibate Hindu god, Lord Ayyappa, in Kerala. Incidentally, the apex court had observed long ago, in 1977, that “Hinduism is a way of life.” With that observation, the court had permitted popular singer K.J. Yesudass, who belongs to Christianity, to give a Carnatic music concert at the famous Lord Krishna temple in Guruvayur, Kerala. Less than two decades later, the court went further, and observed this time in 1995, that “Hindutva is not a religion, but a way of life and a mindset.” Only a year earlier, in 1994, the apex court had ruled on the ‘essentiality of mosque to Islam.’ This time round, the court refused to reopen the earlier verdict for review, in the context of the larger Ayodhya dispute. It is another matter that like the socio-political terms, ‘nationalism’ and ‘nationalist’, the word ‘Hindutva’, if not ‘Hinduism’ per se has lost their innocence. Not only the latter, but even the former has been now up on the anvil, for the future generations to delineate, not through social practices, but judicial interpretations or parliamentary legislation, or both.

Right to choice

In a way, the Sabarimala verdict does not seem to have provided for penalties against contempt of the same. The triple talaq ordinance has made a social practice, a crime. Against this, the SC has de-criminalised same-sex marriage and adultery, both of which were punishable under the Victorian, puritanical British era penal code dating back to 1860. All those verdicts also derive from the concept of citizen’s freedom and the individual’s right to choice. Almost alongside, in the activists arrest case, for instance, the Supreme Court has sought to draw the line to show where ‘the individual’s nose should end, and the State’s nose could poke’. Media reports quoting petitioners’ lawyers and other experts say that they have as much in the ‘dissenting verdict’ of Justice D.Y. Chandrachud as the state has in the majority judgment, delivered by Justice A.M. Khanwilkar, almost at the last-minute.

Whither Aadhar?

Apart from all these is the Supreme Court’s even more important, universally-applicable verdict in the Aadhar case. Translated, the verdict means that Aadhar is legal, does not violate constitutional freedoms of the citizen, but and can be sought, used and imposed for select interactions, that too only with the Government and certain governmental agencies, and not all. Thus, Aadhar requires to be linked to income-tax PAN numbers of individuals and also for obtaining government subsidies of a low-end, ‘freebies’ nature, but not for massive loans that could end up as voluminous NPAs. The court has ruled that Aadhar linkage is not required for bank accounts and transactions, and phone companies, whether in the public sector or not.  By extension, it should apply to transportation companies, including the Indian Railways and Air India, the two mammoths in the public sector. While de-legitimising Aadhar linkages of the kind, the court has not prescribed any guidelines or methodology for de-linking mechanisms for the purpose. It may imply that the government is duty-bound to do it the same or similar ways that it had facilitated such linkages in the first place. In the absence of a court-approved, deadline-centred mechanism, overnight many private sector data-bases holding voluminous Aadhar data could become subject to investigations, shutdown and arrests, for violating cyber laws and others. Then, there is the need for the Centre to create new and ‘secured’ data-base for de-linked Aadhar data of individuals, again running to hundreds of lakhs. This may require, starting Aadhar registration/re-registration, almost from the scratch, in turn necessitating fresh linkage to PAN and other court-approved schemes. What all of it would entail in terms of massive additional resources of every which kind that had gone into making the ‘Aadhar scheme’ successful, is unclear as yet. If there is a lesson in it, if it came to that, government agencies tasked with such tasks, while being task and time-oriented should spare time to think about the fallouts and fallbacks.

Review pleas and more

For now, the Travancore Devaswom Board, the quasi-government body in charge of the Sabarimala temple administration, has said that it would move the Supreme Court with a ‘review petition.’ Media reports claim that such ‘review petitions’ are not unlikely in other mentioned cases, as well. The Aadhar ordinance, when passed into law, may also be challenged. Then there is also the pending Constitution Bench case on ‘female genital mutilation’ in the Dawoodi Bohra community. The list can become endless if someone were to cite any or many of these rulings to seek permission or men to worship in the handful of woman-only temples across the country, or vice versa. There could then be a legal case for Islamic women to say namaz in the mosques, and male circumcision. Christians in some parts of south India may move courts to ban English language services, or those in the local languages. Should the Supreme Court decide to look up at each of these recent verdicts afresh, it is not unlikely that the court may also consider referring them all to a larger Constitution Bench, to lay down the law on the broader issues and principles involved — and sustainable over a substantial period time. As is known, the all-embracing SC verdicts in the Kesavananda Bharati case (1973) and the S R Bommai case (1994) have stood the test of time without any supportive legislation since.

Theological state

It needs to be understood that ‘triple talaq’ is as much a part of the ‘national heritage’ as bar on women’s entry at Sabarimala. The SC has only applied the same yard-stick to both. Now to take the ‘Sabarimala verdict’ out of context, and to argue why then not Muslim female be not allowed to say namaz at the man-only mosque, as in the social media since, is sounding political, not cultural. In the larger context of the Constitution, which is a social contract, years ahead of President Zia-ul-Haq declared Pakistan an ‘Islamic State’, India had amended the statute’s all-important Preamble to insert the term ‘Secular’. Decades earlier, forebears of Indian Muslims chose to continue in the great Indian ‘inclusiveness’, far removed from the ‘religion-centric’ Pakistan’s ‘exclusivity’ of the all Abrahamic faiths. Making Indian nation a ‘theological state’ is not the answer. Instead, there could be situations similar to that arising out of the post-verdict ‘instant triple talaq ban’ ordinance, promulgated by the President, to other segments of the society, in such other situations. This apart, in the existing/emerging ‘global village’, even personal laws and court verdicts may have to pass the universal applicability test. Through all this, the different arms of the Indian state may have to look around to see what is happening to the citizen’s rights in other/western nations, from which evolving concepts like the ‘individual’s rights’, ‘livelihood rights’ and ‘ecological sustenance.’ Many such concepts have found their way into our laws and jurisprudence through a process of socio-political osmosis. It is thus that male Sikhs have won court verdicts in favour of their retaining their head-gears and kirpan models on their person. Hindus have also won the right to build temples of their choice in all western nations and their cities. We hail PM Modi for facilitating a Hindu temple in Abu Dhabi, an Islamic, Gulf-Arab nation. The social media is full of pictures when a US President or a British/Canadian Prime Minister celebrate Diwali.

Political embarrassment

There is another angle to it all. Considering that there are occasions when our laws are being none-too-frequently challenged in courts halfway through implementation, or court verdicts are sought to be reviewed, there may also be a need to find ways to pre-empt such situations. In nations like Sri Lanka, constitutional amendments especially need to be previewed by the Supreme Court before being presented to Parliament and voted. This has ensured that the laws are not thrown out if after implementation, in turn creating unnecessary political embarrassment and huge resource-loss and avoidable societal discomfort/unrest. In India, the Centre and even State governments could use the existing powers of the President, to refer such matters to the Supreme Court for ‘advice’, if only to minimise confusion and contradictions at and after the implementation-level, leaving the system weaker than already and the political leadership, more red-faced than already.
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