Now that the celebration following the Section 377 judgment has died down somewhat, perhaps it is time to take stock and say some harsh truths that deserve to be said. There is no doubt or dispute that the judgment of the Supreme Court in Navtej Johar vs Union of India is a great moment in our constitutional history. But it is equally true that when it happened, the judgment was fait accompli.
When Justices Ajit Prakash Shah and S. Muralidhar of the Delhi high court struck down Section 377 in Naz Foundation vs Union of India, it was a bold move. The court had gone against the tide of the time, overriding opposition from the popularly-elected government as well as from well-entrenched religious and social institutions that act as self-proclaimed guardians of the morality of society. Soon after, the apex court, however, succumbed to these pressures and to the personal prejudices of the individuals who spoke before the court and gave us Suresh Kaushal vs Naz Foundation, a black mark in our constitutional history.
But today, nearly ten years after Naz Foundation, a hundred pride marches later and in the backdrop of mounting international opinion, the tide has turned. The government of India itself did not take a position on the issue, leaving to the ‘wisdom of the court’ to decide on Section 377. In a significant though largely unnoticed move, the All India Muslim Personal Law Board, despite being a party, had chosen not to oppose the plea for decriminalisation. The ragtag opposition comprised of an NGO styled as an alliance of churches, a few stray individuals and a miniscule fringe Muslim sect comprising the followers of one Ahmad Raza Khan, a cleric of recent vintage. Their arguments were often laughable, particularly when a lawyer made a fervent plea that the borders of our country would no longer be secure since our soldiers, so far away from home and wives, would be busy buggering each other.
By this point, Section 377 was just a low-hanging fruit waiting to be plucked by a court increasingly conscious of its public image and the media reportage of its proceedings. To put facts crudely, when the government and popular opinion supported Section 377, the Supreme Court upheld it. When popular opinion and, following popular opinion, the government turned around and opposed the provision, the apex court struck it down. For me personally, this fact tempers the celebration.
The truth is, the real test of the Supreme Court as the sentinel on the qui vive guarding the constitution lies elsewhere today – in defending unpopular opinions because the people holding those opinions have a constitutional right to hold them. Therein lies the true test of this court as an upholder of fundamental rights. The real test lies in taking a stand against a government increasingly intolerant of dissent.
Past cases of SC supporting populist positions
There has of late been a tendency in the verdicts of the Supreme Court to pluck low-hanging fruit by supporting populist positions generating media fanfare but pussyfoot around when it comes to the crunch. It was in cases such as the Judge Loya case that the mettle of the Supreme Court was tested but the court buckled under government pressure. Under Section 154 of the CrPC and according to the most basic principles of criminal procedure, when a cognisable offence such as a murder is reported, it is incumbent on the police to register an FIR and investigate the case. Thereafter, the law takes its own course. Instead of simply setting the process of law in motion, the Supreme Court undertook a detailed examination of the evidence and gave a clean chit to all concerned besides castigating petitioners and their counsel for abusing the PIL process.
The judgment of the Supreme Court in Justice Puttaswamy vs Union of India, popularly known as the right to privacy case, was celebrated as a great milestone in constitutional jurisprudence. There is no doubt that the judgment is a seminal moment in the history of our rights jurisprudence. But reduced to basics, the court merely declared the existence of a right that had not once been doubted by the Supreme Court since M.P. Sharma (1954) and Kharak Singh (1964), the two judgments on privacy that Puttaswamy overruled.
Despite contrary observations by these two larger benches, the Supreme Court had consistently in a series of cases spanning five decades declared and upheld the right to privacy. Puttaswamy merely gave them the imprimatur of a larger bench. In that sense, Puttaswamy was again low-hanging fruit. The mettle of the court is still to be tested in the challenge to Aadhaar, the case from which the Puttaswamy reference arose and in which judgment is still to be pronounced.
While the Hadiya judgment was reason to cheer, the joy of celebration was sobered by the realisation that it was this same court which on the very first day of hearing passed an order directing an investigation by the National Investigation Agency, a body constituted to probe international crimes, into the circumstances of her conversion on her father’s unfounded allegation that she had converted on account of being brainwashed by ISIS operatives. One only hopes that the furore in the media caused by the case had no bearing on its eventual outcome. Although the NIA itself admitted before the court that it had no jurisdiction to investigate the case, the Supreme Court empowered it to do so and the court-directed investigation continues even after the judgment, for that was the order of the court.
Yet another case in point is the judgment of a seven-judge bench in Abhiram Singh vs C.D. Commachen in 2017 that was celebrated by Indian as well as international media as putting an end to religion-based politics during elections. The reference arose from a series of cases involving incendiary speeches made by Bal Thackeray and BJP leaders in the 1987 Maharashtra assembly elections asking voters to vote for them to establish a Hindu Rashtra.
Justice J.S. Verma, speaking for three judges of the Supreme Court, held that asking for votes in the name of religion was impermissible but also observed that ‘Hindutva’ was not a religion but a term used to describe the way of life of the people of the sub-continent. The court went further to hold that ‘Hindutva’ was synonymous with ‘Indianisation’. The Sangh parivar went to town claiming vindication by the Supreme Court of its ideology that Hindutva was the creed of all Indian people. The seven-judge bench decided to limit itself to the question of whether asking for votes in the name of the voters’ religion was a permissible election practice and held that it was not. The majority verdict was a glorious treatise on secularism with Justice Chandrachud penning a dissenting opinion saying that asking for votes in the name of religion was covered by the freedom of speech and expression and could not be curbed by election law.
The judgment gained much coverage in the press as a milestone in Indian constitutional jurisprudence upholding secular values. But what was the final outcome? That candidates cannot ask for votes in the name of religion but Hindutva is not a religion? Instead of seizing the moment to adjudicate the burning issue in the country of the rising tide of elections being contested on the divisive plank of Hindutva, the court chose to limit itself to legal niceties giving a glorious-sounding judgment that changed little on the ground. The judgment is now being used by petitioners seeking derecognition of parties like Asaduddin Owaisi’s AIMIM claiming that such parties seek to promote the interest of only one religious community contrary to the judgment of the seven-judge bench.
Navtej Johar case and the real test for SC
The court in Navtej Johar has held that morality under the constitution is not public morality or the morality of the multitude, but “constitutional morality” which takes within its sweep the aim of ushering in a pluralistic and inclusive society. Chief Justice Dipak Misra in his opinion recognised that even a minuscule part of society may aspire and prefer different things for themselves. In the context of LGBTQ+ rights today, the prevalent social morality, by which I mean the morality of that vocal section of society that controls mainstream public discourse as reflected in the news and social media, now itself recognises the rights of sexual minorities to assert and pursue their preferences. One of the cases in which these principles will actually be tested is a public interest litigation titled Sunita Tiwari vs Union of India presently being heard by the Supreme Court.
The case relates to the practice of female circumcision practiced by the Dawoodi Bohra community, a minuscule minority within the larger umbrella of Islam. Unlike Jews and mainstream Muslims who read the Abrahamic covenant as a covenant between Abraham and God to circumcise himself and “his sons”, the Dawoodi Bohras read the covenant in a gender-neutral sense as applying to Abraham and “his children”. For women, circumcision described in their religious texts involves making a cut on the prepuce or the foreskin of the clitoris to further expose the clitoris to make it more sensitive. The practice is akin to the vaginal cosmetic surgery called clitoral hoodectomy practiced by an increasing number of women in the West to enhance sexual pleasure.
Supporting the PIL are three women of the Dawoodi Bohra faith who claim that their circumcision was performed in a manner where the clitoris itself was damaged leaving them incapable of experiencing sexual pleasure. They have the backing of the anti-FGM activists who claim that the practice is an instrument of patriarchy aimed at curbing sexual pleasure of women.
The case has caught the attention of the media for everyone loves a good fight against patriarchy and oversimplification and hyperbole have been flying thick and fast. On the other hand, the practice is sought to be defended by approximately 70,000 Dawoodi Borha women, constituting half the adult women of the community in India, who are crying cultural imperialism. These women have come to court arguing that their right to be circumcised and to circumcise their daughters is protected by the right to freedom of religion protected by Article 25 of the constitution.
These women have cited 10th-century texts to show that sexual pleasure of a woman is central to the tenets of the faith. When dealing with the question of rights and duties of spouses to each other, the texts actually impose a duty on the man to ensure that the woman climaxes before he does. These women have also presented texts that show that the reason for the practice apart from ritual purity is that it is better for the woman “near her husband”. The esoteric meaning of circumcision of the man and the woman is described in the texts by the analogy of the unsheathing of the tongue represented by the penis and the ear represented by the vagina to enable the transfer of spiritual knowledge from the tutor represented by the man to the disciple represented by the woman. The court has during the proceedings observed that any interference with the bodily integrity of the child compromises the child’s right to privacy. The court also appears to have latched on to a particular translation where “better for you (the woman) near your husband” is translated as “better for your husband”. Reading this together with the esoteric meaning, the observations of the court suggest that this is derogatory to women and hence contrary to morality, which is a ground on which the right to freedom of religion can be restricted. The court’s observations that no progressive modern woman can possibly want this for herself are being seen by these women as denying them agency.
And it is here that the observations of the Supreme Court in Navtej Johar are to be tested as an unpopular position comes into conflict with prevalent social morality. Is the court to judge morality from the perspective of a neo-liberal agnostic judge and wade through religious texts to see if they appeal to its sense of reason? The esoteric idea of the man as the tutor/guru/divine, the woman as the disciple and their confluence being the analogy for the attainment of spiritual knowledge or salvation pervades bhakti and Sufi poetry and literature, the two most inclusive and egalitarian forms of Hinduism and Islam, respectively.
Amir Kusro, expresses his devotion in the voice of a woman in love with his guru, Hazrat Nizamuddin Aulia and sings “Ghar naari gawaari chahe jo kahe, mein Nizam se naina lagaayi re” and “Khusro rain suhag ki main jaagun pee ke sang, tan mora mann piya ka jo dono ek hi rang”. In a similar vein is the poetry of Mirabai, Surdas, Tukaram and a host of bhakti reformers with Krishna taking the place of the object of love. The idea of the penis as the giver of knowledge and the vagina as the recipient is comparable to the Hindu traditions of Shiva symbolised by the phallus being knowledge or consciousness and Shakti, the feminine, a reflection of the world of illusions, being the seeker of knowledge and their conjugal dance being symbolic of the seeker receiving knowledge and thereby attaining salvation.
Is the Supreme Court to sit in judgment over all these traditions and test if they are derogatory to women? Is the bhakti tradition of Krishna devotion in Hinduism to be reduced to its metaphor of eve-teasing (“Mohe panghat pe Nandlal ched gayo re”) and tested to see if it agrees with a neo-liberal idea of women’s empowerment?
Is the right to bring up children within the folds of religion, without interference from neighbours and their opinions on child-rearing, not equally a part of the right to privacy? Do ear and nose piercings of children not similarly impinge upon their bodily integrity before they are capable of giving consent? Or is making little holes in the human body to hang baubles for decoration more in keeping with constitutional morality than all things religious?
The court is also relying on a WHO classification of FGM which does not differentiate between circumcision and mutilation. Here too, the court would do well to remind itself that until recently, the WHO classified homosexuality as a mental health disorder. Like this court, the WHO too has flowed with the tide.
I do not seek here to defend the practice. The question of whether the practice is harmful to health is still at large and will have to be adjudicated upon by the Supreme Court since “health” is another ground for limiting the right to freedom of religion under Article 25.
The purpose of this examination of judgements and proceedings of the Supreme Court over the last two years at this juncture is merely to say that while celebrate this victory we must, we must be conscious that the theatre of the battle perhaps lies elsewhere. What we need is a Supreme Court that is not influenced by popular opinion or governmental pressure. We already have a populist legislature and executive and a populist media. We do not need a populist court.
Nizam Pasha is a lawyer practicing in the Supreme Court who has appeared in Minna Sarran vs Suresh Kaushal against Section 377, in Puttaswamy in favour of the right to privacy, in the Aadhaar matter against Aadhaar, in Abhiram Singh vs CD Commachen for CD Commachen, in the Hadiya case for Hadiya and appears in Sunita Tiwari vs Union of India for the organisation of Dawoodi Bohra women. The views expressed may be filtered for bias accordingly. He can be reached on Twitter @MNizamPasha.