Says former justice of Kerala High Court P K Shamsuddin.
Through a series of judgments, Supreme Court has set the agenda for public discourse as never before. While many people have described them as historic, it has also raised alarm bells in some sections of society. What is your take on these judgments?
The sheer frequency of socially-relevant judgments is unprecedented. Judgment in Hadiya case, privacy judgment in Aadhaar case, verdicts on triple talaq, passive euthanasia, decriminalizing of gay sex and decriminalizing adultery are some of them. The common thread of all these judgments is the primacy of individual freedom and personal liberty. It’s laudable as freedom of expression and liberty is facing threats from various regressive forces. At the same time, excessive orientation towards personal liberty at the cost of social values and morals are a matter of serious concern. The decriminalizing of gay sex by repealing section 377 and scrapping of section 497 of the IPC demand serious rethinking.
There are far-reaching consequences for these judicial pronouncements. The freedom enshrined under Article 21 of the Constitution is not absolute. The law says no person shall be deprived of his life or personal liberty “except according to the procedure established by the law”. Fundamental rights are subjected to reasonable restrictions. These restrictions are necessary for smooth functioning of a harmonious and socially-cohesive society. A society that is devoid of time-tested moral values will lead only to chaos.
Can you elaborate?
God has created all living beings in pairs and its basic purpose is procreation. All religious ideologies have treated gay sex as sin. Decriminalization of gay sex poses serious challenge to the institution of marriage. It seems the court is fast moving towards western radical liberalism and it may not be suitable for a country like India with various belief and cultural systems.
In the case of adultery, the court should have made section 497 of Indian Penal Code, 1860, and section 198 of Code of Criminal Procedure 1973 (which prohibits wives from filing adultery complaints) gender neutral and not unconstitutional. The present judgment will lead to breakdown of marriages and the future of children from these marriages will be at peril.
The Supreme Court has stated that if any of the spouses commit suicide because of the adulterous relationship by the other spouse, then one would be able to prosecute under section 306, which relates to abetment of suicide. This will lead to an increase in suicide rates out of marital disputes. The court should have directed the government to make adultery an offence under section 498(A) of the IPC 1860.
I recently attended a legal conference in Kuala Lumpur organized by United Nations and the whole discussion was centred on how to integrate moral values in the UN human rights charter. The conference called for a Universal Declaration of Human Responsibilities on par with Universal Declaration of Human Rights.
Despite having strong views on these issues, no Muslim group impleaded in the case. Why?
I would say it was a grave lapse on the part of Muslim community leaders. They should have presented their views in court and explained the serious threats these changes pose to our social fabric. Since these changes will have serious consequences for the entire society, not just Muslims, they have a moral responsibility to uphold the universal moral values that serves as glue to our social life. The community should have impleaded in the case based on the concept of greater common good of the society.
Even in the triple talaq issue, the stand taken by All India Muslim Personal Law Board (AIMPLB) was not right. Instead of exposing the agenda behind the move that unnecessarily brought triple talaq to Supreme Court, AIMPLB wanted to protect the provision of triple talaq. It is a fact that the present Muslim personal law is largely based on precedence, not fundamental sources such as Quran and hadith. Muhammadan Law, on which the Muslim personal laws rely, is male chauvinistic in nature. AIMPLB should come forward to codify the Muslim personal law in accordance with authentic sources. There should be a concerted effort from the political class to bring necessary legislation through Parliament. The latest Law Commission report has also stressed the need of codification of personal laws.
Will Uniform Civil Code help solve these differences?
No. India is a confluence of myriad cultures and belief systems. Bringing all of them under a uniform civil law is impractical and the Law Commission itself has rejected the idea and said ‘it’s neither necessary nor desirable’. The commission urged the government to first bring equality within communities between men and women rather than equality between communities. So, the focus should be on elimination of gender-based discriminations. It says “most countries are now moving towards recognition of difference and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy.” So plurality of personal laws should be the norm of our judicial system.
Those who argue for uniform civil code do not envisage a civil code based on equality and justice but seek to impose a brahmanical civil code. None of the communities are in favour of repealing their personal laws. Only certain groups with certain political agenda are clamouring for uniform civil code.
https://timesofindia.indiatimes.com/city/kochi/muhammadan-law-is-male-chauvinistic-in-nature/articleshow/66387327.cms