Recent Supreme Court Verdicts: Section 377 & 497
An age old conflict between Naya & Niti (Values & Law)

Tapas Piplai

Recently Supreme Court has declared Section 377 and 497 are flawed and regressive provisions in the Penal Code and have accordingly struck down both in September 2018. These sections are stated to be in violation with our Constitutional Rights and its Objectives, as mentioned in our Articles and Preamble. These two sections have been inducted in the Indian Penal Code (IPC), originally by the colonial rulers almost 150 years back around 1860 AD. These are therefore the colonial conjectures in our legal system. As per the sections, homosexuality and adultery are punishable offences for men in Indian population.

The present furor and extra sensitivity in our urban society, is because of sixty five percent of present Indian population is grossly skewed towards the younger generation demographically. They feel the individualism is more sought after in the society. Social values come later .They belong to the fluid value based society as it is recently being called. The growth of own self, individualism, gadgets replacing human, rapid fall in community values, containing large information  in smart instruments ... are the striking features of this fluid society. The new value system gives more importance and recognition to the individual rights rather than to the social justice system and cooperative systems which have evolved through ages. The rise of earlier social contracts from Socrates, Plato or Buddha s time and thereafter by Hobbes , Bacon , Voltaire , Rousseau,  Kant, Stuart Mill , Bentham, Rawal, Amartya Sen et al are on the threat of becoming obsolete and ruins of previous era. The collective value system evolved from agricultural society has turned out to be less predominant in this era of new generation emanated from service dominated society!

Therefore, not considering much through the prism of social progression, let’s look at the recent moves by Supreme Court in details and its probable effects in the society.

Basically the Justice system, is based on the ideas – maximizing welfare , respecting freedom , promoting virtues, controlling immorality & indecencies.

As a corollary, in India , the  justice system evolved through  three different yet intertwined tenets - Preamble ( broad objectives of just civil society ) taken mainly from French Revolution slogans, Articles or Constitutions ( vision of our constitution divide spread across various chapters ). The inputs have been taken from enlightenment movements (1685 -1815 ) of Europe like fundamental Rights,  Magna Carta, Right to equality , Right to life , Right to privacy, Right to choice movements  etc. Measurement precision in science during this period heralds a new journey in the society. These movements together opened the era of age of reasons throwing the dark ages of civilization into dungeon. Finally comes the third aspect i.e, the Sections - criminal and civil stipulating nuances of protection and punishments for non conformity etc. All put together is our Justice system. Supreme court with the other courts below them, are the law protector and Parliament & State Assemblies as the law enactment authorities  in the society.

The problems as found by law protector (Apex Court) is the contradiction between Articles/Constitutions and Sections pertaining to the above two sections. Therefore they dispense with the sections which are not in conformity with Preamble and Articles.  The changes in our Justice System are inevitable with the progression of society with the change in our value system. Even today, many sections are yet to be toned down or should fall in line with the objectives of civil society as ensured in our constitutional rights.

Laws and its’ conflicts: Section 377
Let’s first recognize that Supreme Court is NOT law maker. They are the protector of law. The objectives of such laws or sections are already defined in the preamble and articles. Any new law or amendment can only be enacted, if is changed by the parliament.

Justice system always encounter the basis question like what are the right things to do? It undergoes a contradictory growth path amongst various contradictory forces. Usually the forces are emerged from nature, animal kingdom, environment, ecology, self-upbringing, immediate neighbors, past values, traditions, country and global citizenship etc.  With the change in any of the inputs of the above forces, the value system to decide the righteousness of one system becomes erroneous. Through the contradictory process the new synthesis emerges. It’s a complex and multidimensional process.

For section 377, based on the legal deliberation of  Supreme Court, it  has  been concluded that Article 21 and Article 15 of equality of all genders and privacy respectively, are in gross contradiction with section 377 as it does not accord the same liberty and privacy to same sex marriage or homosexuality and LGBTQ community under the pretext of natural behavior of the animal kingdom. The homosexuals and LGBTQ community are found to be very less in percentage in the population .Therefore, the section while has been framed, accepts the majority behavior. It neglects   the minority even though if it appears to be a congenital and biological process.

Now in September 2018 judgement Supreme Court accepts the need to accept the same  in our sections . The variation in human behavior even though is followed by minorities, we need to accept people as they are  . A famous quote from Goethe has been used in the judgement -- “I am what I am, so take me as I am”. Hence court decides to withdraw the constitutional support and decriminalize the section. We have to accept our constitutional directions to appreciate the self-actualizations and self-determination acts of any individual. Actually the section 377 never penalizes the gender variations as criminality. It criminalizes the sexual activity between genders, other than men female, and fixes a stigma as  unnatural. So earlier they have concluded to stop these activities in the society. Sexual attraction is defined as a concept of natural biological phenomenon. The attraction and other consequent sexual activities are merely a natural effect of that. It is centered around the freedom of choice of individuals. It should not have any bias towards majority or minority traits of population. The present amendment is an award to sexual citizenship to all types of population; so long it is not seen to be as indecent and not in contradiction to challenging the provisions of Article 14 (right to equality) Article 21 (right to life) and Article 15 (right against discrimination) etc. It is certainly a positive step towards recognizing the individual freedom of actions. But question remains on how will it gel with our existing social contracts?

Section 497: An analysis
It is defined to be the action where one male is in intimate relation with someone else’s wife. The person (male) can be prosecuted under section 497(adultery).

The section 497 is concluded to be in contradiction with both the articles in the areas of dignity of both men and females. For the verdict on adultery, in four separate but concurring judgments, the five-judge bench of the Supreme Court have concurred that the 158-year-old law has become old and archaic and is therefore needed to be revoked. The bench declares it unconstitutional as it encounters the contradiction with Article 21 (Right to life and personal liberty) and Article 14 (Right to equality).

Adultery, after recent Supreme Court judgement has become a much debatable subject. This is nothing but a typical archaic conflict between human value system and social law.

So called Adultery in English and Parakia in local language are having different meanings if we consider them from their historical antecedence.

Earlier, as per our puranas, holding the girls in captive for the future marriage or otherwise have been well within social rule . This is either  following  conquest logic  ( fight ) like Bishma Pitamaha in Mahabharata  ,  for the marriage of his brothers , or following missionary mode ( cajoling and requesting ) as Dushmanta did in case of Skauntala. But in most of the cases, the marriage used to be wrapped under diplomatic pursuit. These systems were continued for fairly long period during ancient time.

But later with the onset of medieval period, the religion base and its manifestations have undergone a sea change. Indian society witnesses, after Shankaracharya around 800 AD and Ramanujam around 1100 AD , the revival of Hinduism through Jnan and  Bhakti Cult movement .Intellectual thirst of quenching knowledge gaps are usually met through deliberation, argumentative discourse, called Jnanyoga

 In North the Bhakti movement has been pioneered by Ramadeva , in South by Ramanujam respectively. It thereafter spread across pan India by Nanak, Kabir, Dadu, Chaitanya, Meerabai and others. Slowly these movements assume a high level of popularity amongst the subalterns cutting across the domains of classes.
During, sixteenth and seventeenth century, the Indian society witnesses the birth of many more spiritual reformers.

The Rama cult and the Krishna cult are the earlier branches within Vaishnavites.   These Vaishnavas further divided into a number of different sects and creeds.

The leading light of the Rama cult is brought by the poet Tulsidas. He himself has been a great scholar and has studied well the Indian philosophy and literature. His great poem recital Ramacharitamanasa', popularly is called Tulsi-Ramayana. It becomes very popular among the Hindu devotees. He has depicted the image of Sri Rama as all virtuous, all powerful, the Lord of the World, lord of a peaceful & happy kingdom and the very embodiment of the Supreme Reality - Parambramha).

On the other hand the followers of the Krishna cult , branches off from Rama cult incorporating the Radha /Krisna  sect under Hari Vamsa in 1585 A.D. SurDas wrote 'Sursagar' in Brajbhasha or Brajbuli . These are full of verses containing the charms in the form of infantile   divine disorder between Lord Krishna and his beloved Radha . It is primarily veering around proverbial  Flute recital . Later , it is further popularised  by Jayadeva, ISKON etc within the Vaishnavite sect. The Vrindavan cult of Krishna & Radha emerges from these so called love aspects of Krishna school of thoughts .Actually this Bhakti cult is stemmed in total surrender to almighty bodily and mentally.The love or Prema part of spiritualism has been derived from Bhakti yoga.

The self-surrender of atma, slowly converted into Prem / Puja in Indian languages and   in English language parlance it has been termed as adultery and included in our jurisprudence by the colonial law makers. Both are not really the same The unnecessary sanctity of marriage has further been loaded in this law at the cost of Articles as mentioned in our Indian Penal Code (IPC). The system of marriage is grossly different in Vaishnava rituals and that of typical Hindu marriage system. The marriage system of Hindus is deeply stemmed into archaic Hindu rituals. On the other hand, Srikrisna’ s stay in Brindavan is covered more by imagination through bardic lore highlighting platonic love.

The much fancied flute recital by Krishna for Radha & Gopinee s , plays a stellar role in this Rasa aspect of love . The birth of Rasashastra, Jhulanjatra, Holi are further depiction of love as have been narrated by Vaishnav bards like Jayadeva, Chandidas , Vidyapati & local akhras etc.

The real problem surfaces while combining the Hindu marriage rituals with that of Vaishnav s . It is in contradiction with the prevailing Hindu marriage systems & laws. Vaishnava marriage system is closer to missionary marriage systems. Rasa s in different ways has descended on Indian literature & on these systems  through Kalidasa & others  from time immemorial. Later bardic conjectures are just the icing on the cake!

The act at this turn puts a label to the relationship between a married woman and any other man ( apart from her husband ) an extra marital adultery offence . The man can be legally prosecuted as per law by the husband of the alleged lady even though it may be a consensual private matter between the wife and the other man, even if it is consensual. It is made later punishable offense to the men during colonial time and accordingly proper sections are framed - like sections 497, 498 etc.
As per the Articles which grant fundamental right to people towards self liberty and privacy, come therefore, in direct conflict with the sections . Hence these sections are required to be amended in line with articles. Supreme Court actually has done the same. They have also upheld the sacrosanct nature of our marriage system as well. In short they have constitutionalized the system.

Concluding words..
Basically the court has removed the criminality aspects, and has constitutionalized   both the sections, if the activities are not found be in confrontation with other articles. Therefore the recent amendments are in line with our fundamental rights. Basically the anomalies have been removed.

The final question remains unanswered - what will happen to the social contracts which have grown from antiquity in our social value system? Needless to reiterate that our entire sense of decency is well routed in the generation gap conflict. Perhaps here lies the future dynamism of our legal system! It needs to be seen how our society will subtly address this concern!

Therefore  Supreme Court rulings are neither great law enactment nor a great revolution. It merely removes intelligently the anomaly of sections which are not in sync with articles ensuring fundamental rights. Adultery may be wrong if it intercepts the boundary  of marital understanding. But those should be tackled differently not by interfering with fundamental rights of individual.

Unfortunately in past, there had been many amendments to laws for the benefit of the victimised sections. In 1829 Sati regulation and in 1856 the Widow Remarriage Act have been passed and enacted. These bear the testimony of our intellectual pursuits and the dynamism of the legal system. Yet after more than 150 years these are to be fully implemented in its right spirit in the Indian society.
Therefore finally it is our human development traits, society  and intellectual  levels which are to be improved upon through relentless arguments, upgradation of logical intelligence, tolerance and knowledge to ensure enduring values of our societal progression.

Nov 21, 2018

Tapas Piplai [email protected]

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