[dropcap]T[/dropcap]he nation does not proceed in a straight line. Rather, it is a sprawling development. Today, when I think of how the country has transformed, I give all credit to education, as it is the development of power and ideals which leads to progress, which is impossible without change. Freedom of thought and creativity was what we needed to become a greater India and that is how the 21st century is dealing with the prejudiced traditional and societal norms that are against equality and logic and act as obstacles to moving towards a liberal approach. I could not help but think of the recent judgments by the judiciary to maintain equality, equity, justice and fairness in the country.
Beginning with the Sabarimala Temple case, where the Supreme Court ruled in favour of the Indian Young Lawyers’ Association which filed the petition on the grounds that the rule that kept out women in the age group of 10-50 years violated the freedom to follow and propagate religion, mentioned in Article 25 of the Indian Constitution. The court lifted the prohibition on women and declared that the dualism that persisted in religion by glorifying women as ‘goddesses’ on one hand and by imposing rigorous sanctions in matters of devotion on the other had to be abandoned. Such a dualistic approach and an entrenched mindset results in indignity to women and the degradation of their status.
The most suitable example of progressive thinking is that of Justice DY Chandrachud, who not only once, but twice, dissented with his father, who was previously the CJI of India, justice YV Chandrachud, setting a bar that the world needed a pragmatic approach rather than a conventional one. Justice DY Chandrachud attempted to maintain the balance for the greater good and ensured that the judgments spoke for fairness. The initial disagreement came when CJI YV Chandrachud’s decision on the right to privacy was termed “seriously flawed” and overturned by concluding that life and personal liberty were inalienable to human rights.
No civilised state can contemplate encroachment upon life and personal liberty. This happened when CJI YV Chandrachud, in Sowmithri Vishnu vs Union of India, said that removal of Section 497 from the IPC could result in more freeplay and that the stability of marriages was not an ideal to be scorned. Opposing this, justice DY Chandrachud said Section 497 was destructive of women’s identity. He further reflected that the argument against the petitioner was that Section 497 protects the sanctity of marriage.. However, if a married man has sexual intercourse outside his marriage, but with an unmarried woman, that does not amount to an offence under the provision, although it also affects the sanctity.
Justice Rohinton Nariman referred the traditional Article 14 test, saying where is the intelligible differential in saying that the sanctity of a marriage is not hurt if a married man has sexual intercourse with an unmarried woman? This he termed as manifest arbitrariness. So, the Supreme Court Bench headed by CJI Deepak Misra declared, “Husband not the master; adultery no longer a crime”, striking down the 158-year-old law. In another breakthrough verdict, the Supreme Court struck down the practice of talaq-e-biddat, also known as instant triple talaq, as illegal. The ratio was 3:2, which also included CJI JS Khehar, who ruled in favour of a petition filed by Shayara Bano in 2015, who had urged that the custom of triple talaq was against the Constitution as it was violative of Articles 14, 15, 21 and 25.
There came another historic judgment which was welcomed by some and criticised by others, but truly was the verdict of the year as it decriminalised gay sex. A five-judge bench gave an unanimous ruling on Section 377 of the IPC, decriminalising homosexuality. It termed Section 377 of the Indian Constitution “irrational, indefensible and manifestly arbitrary” and diluted it to exclude all kinds of adult consensual sexual behaviour. It has been said that social morality cannot violate the rights of even a single individual. Justice Indu Malhotra aptly said history owed an apology to the LGBTQ community.
All these decisions are instances of how gradually we are growing as a country and moving forward to a modern perspective where everyone is treated without intolerance or discrimination against their gender, orientation, education, and choices, as equality is more than a goal in itself. It is a precondition for meeting the challenges of good governance and overall development. Although some of the decisions are being criticised now, the public will slowly accept them.
Consider the time when Raja Ram Mohan Roy abolished the obsolete funeral practice of Sati. It was highly condemned and criticised by the masses. However, people eventually realised it was the right thing to do and accepted it. Likewise, these changes, too, will soon be accepted by society, whether through an increase in the literacy rate, or awareness of the people about contemporary issues. India is promptly shifting from a traditional, and orthodox thought process towards a modern and realistic world.
(The author is a Law Student of UPES Dehradun)