*Herein is the two-parts article by Mr. S Gurumurthy, on the oral
observations of the Supreme Court Judges during the hearing of the Kushboo
case: *
* *
*(Courtesy : The New Indian Express dated 3rd and 4th April, 2010) *
* *
*Part I - Free sex? Or free speech?*
Supreme Court legalises premarital sex”. “Live in relationships and
premarital sex are fine: SC”; “Premarital sex is okay, says Supreme Court”;
“Sexual revolution as Supreme Court sanctions co-habitation”. This was how
leading newspapers had headlined what three judges of the Supreme Court
orally had said in the court on March 23, when they disposed of the Special
Leave Petition filed by a famous cinema actress from Tamil Nadu to quash the
prosecutions against her for her remarks on pre-marital sex. Famous in Tamil
Nadu, she had become world famous after she touched the global subject of
premarital sex.
Two things must register first. One, oral remarks of judges need not form
part of the judgement of the court. Lawyers cannot cite newspaper reports as
precedents in courts later. It is only what the judges say in a written
judgement that becomes the law of the land. What the judgement of the court
is on a petition filed by the Tamil actress is not known as yet. But the
newspapers had made out that a judgment okaying pre-marital sex has been
delivered by the Supreme Court! Live in partners beware! It is only an oral
remark by the judges; it carries no value in law. Read the judgement when it
comes to know whether the judges had said in the judgement what they had
orally said in the court before celebrating. Two, the issue in the petition
of the actress is not whether premarital sex is right or wrong, but, whether
she has offended any law by saying that pre-marital sex is okay. The issue
she had raised was about the right to free expression, and not the right to
free sex. How the judges, as reported, spoke on a subject which could not be
an issue in the petition is not clear. Even if the judges wrote an order to
the effect on an issue not before the court that would be regarded as obiter
dicta (a non-binding opinion). But the actress herself does not seem to be
confused by newspaper reports. She seems to know clearly what she had gone
to the highest court for — to assert her right to express her opinion on
premarital sex. Feeling vindicated she says, “Supreme Court’s direction
clearly shows freedom of speech does exist in India”. So much for the spate
of reports that the Supreme Court has okayed pre-marital sex.
The next, and the most important, question is whether the Supreme Court,
which can at best say that pre-marital sex is unobjectionable, has the
authority to make it acceptable. Many unobjectionable things in law are
unacceptable in the society. All that the Supreme Court can do is to ask, as
it has: “when two adult people want to live together, what is the offence?
Does it amount to an offence? Living together is not an offence. It cannot
be an offence”. It is again part of the oral exchange between the judges and
the counsel arguing against the actress. See what the counsel arguing that
the actress should be punished for advocating premarital sex had told the
court according to media reports. “The argument of the counsel was that her
comments allegedly endorsing pre-marital sex would adversely affect the
minds of young people leading to decay in moral values and country’s ethos”.
But see what the judges had asked him in response, according to the media.
“Please tell us what is the offence and under which section. Living together
is a right to life”, implicitly referring to Article 21 that makes right to
life and liberty a fundamental right.
By their oral remarks, the judges seem to have impliedly made it clear that
the court is not concerned with “moral values” or “country’s ethos” which
seemed to be the anxiety of the arguing counsel. But what the court seems to
be unconcerned is unfortunately what the society is not only concerned with,
but apparently lives by and even lives on. Laws or constitutions do not — in
fact cannot — form societies. On the contrary, they may deform them in the
name of reforming them, as it has happened now in much of the West, with
consequences that are becoming unmanageable. Take the case of the US, which
until a year ago, was the unfailing benchmark for our intellectuals and
institutions including, in some cases, courts.
The 2002 National Survey of Family Growth in US found that more than half of
all women aged 15 to 44 had lived with an unmarried partner. The result is
that today, in the US, the number of single parent households is in excess
of 50 per cent and more than four-fifths of them are fatherless and
mother-led. This resulted in a research book titled Fatherless America in
late 1990s. The proportion of children living with a never-married parent
rose to 42 per cent in 2001, from four per cent in 1960. But, the growth in
live-in relations in the US has less to do with the rights of the
individuals as is normally thought here. It has more to do with the decline
of traditional marriages and the rise of contractual marriages imposing huge
cost of divorce. More than half the first marriages in US end in divorce!
Couples in the US with the tenacity to try a second one, found that more
than two-thirds of the second ended in divorce!! If still some further
energy were left to have a go at the third, three-fourth of that too ended
in divorce!!! The decline of weddings is the beginning of unwed lifestyle,
not the other way round. All this started in the US with the kind of views —
which the Tamil actress had expressed and the Supreme Court did not find
objectionable — becoming fashionable in US in 1970s and turning socially
legitimate later. This erosion was first seen, therefore dismissed — as it
is happening here now — as just a moral and cultural issue which was not
worth in modern times. But it has now become a huge economic issue in US
with uncared for elders, under-cared children, unsupported unhealthy,
plummeting savings, bankrupt households, soaring state subsidies, social and
health security bill threatening nation’s solvency — all transforming the US
from being the biggest lender to the world in 1980s to becoming the greatest
borrower from the world today, besides topping in crime rate and jailed
population in the world. The global meltdown is not just the US economic
meltdown; it is equally a US social and moral meltdown.
If this had not happened in traditional Asian societies, it is because they
have struggled to maintain values that nourished relations and families and
respected the society. Therefore, the question is not what is not bad, as
the judges have asked, but what is good, which they have left unasked.
(To be concluded)
* *
*Part II - Right or respect, not both*
THE oral statements of the Supreme Court judges quoted in news reports in
the Tamil Nadu actress case will henceforth be regarded by most as the law
on pre-marital sex case in India, which in law it is not. Assuming that it
is the law laid down by the highest judiciary, it will be interesting to see
what its impact is on the Indian society. The interesting question is
whether, by law or by a court pronouncement, the living model of a society -
that too, a traditional society, like the Indian society - can be altered,
or to use a modern idiom, socially re-engineered. Read on.
What the judges had asked themselves is the only question that they can ask
and answer in law, namely what is, in law, objectionable about pre-marital
sex. To which they have rightly answered that in law pre-marital sex was not
bad. But, the view that premarital sex is not bad (in law) raises another
question. And that is, if that is not bad, what then is good. Also, a
further question, whether what is not bad in law necessarily makes it good.
This is the point neatly raised by Justice Rama Jois, a former Chief Justice
of Punjab and Haryana High Court, in his comment on the views of the judges
in the actress’ case as reported in the media.
The real question, which the judges cannot possibly ask under the law as it
stands, and, therefore, they have not asked, is: whether the view that
premarital sex is not bad in law makes it a good virtue? The plain answer is
that it certainly does not. This is where the limitation of law and courts
arises. The law cannot declare, nor courts can adjudicate on, what is a good
virtue. The authority of law ends, where a discussion on values and ethics
begins
.
Whether something is good or not belongs to a field wider than law; it
belongs to the field of character, ethics, values and virtues. For example,
respect for elders, teachers, women and behavioural norms like these are
good virtues. These values cannot be created or enforced under the law or by
courts; but law, why even courts, can undermine them, as it has happened in
much of the West. Even honesty and integrity are virtues, which laws or
courts cannot create, even though courts can punish the dishonest and
corrupt.
Courts given to adversarial model can never allow for simplicity and
humility. The reason is that law and courts can only create and enforce
rights.
They cannot create respect. For example, they can punish a person for
defaming another; but they cannot punish a person for not respecting, or
even for disrespecting, another, however high and mighty. In fact, law and
courts cannot make people voluntarily respect judges or courts. The law or
court punishes for contempt. Law cannot get or win the people voluntarily to
respect the judiciary or the judges, though it might coerce them to fear the
judges and court. It is because law can only secure a right, the breach of
which is actionable or punishable. It cannot secure respect. Respect that
comes from within is an act of volition, not the result of coercion. What is
respectable without the authority of the law is only what the society holds
as respectable or acceptable. And the society is the invisible, but
effective, player in human affairs. So if the judges of the Supreme Court
say that unwed living is not an offence, the society will not demur. But if
the very same judges declare that it is as acceptable and respectable like a
marriage - which they cannot, perhaps will not - the society will refuse to
accept it; and perhaps not respect the judges saying it, though fearing
contempt law they may not disrespect what they say. So what the judges
decide as not objectionable is not necessarily acceptable to the society or
respected by it. The society will view it in the same way whether it is
live-in affairs, pre-marital sex, or same sex relations.
The society does not accept or respect such deviations however much the
courts and the law pronounce that they are not forbidden. Social and family
norms govern human conduct more effectively than laws and court rulings.
Can any one prevent a boy or a girl of majority age from marrying whomsoever
they wanted to? Never. It is their prerogative in law. But we see normally
both boys and girls remaining unmarried to get their siblings educated or
married first. Nothing compels them to forego the rights granted to them by
law. But the society and the family regard it as a value and a virtue if
they give up their rights for others. More.
Take a simple issue, drinking or smoking. A traditional society feels it is
not right to drink, even though the law permits it. And the society will not
accept or respect drinking simply because cocktail parties multiply. Even
many who drink respect those who don’t, even though they might prefer the
company of those who share a drink. It’s the same with smoking. Even a
smoker will respect a non-smoker, even though he may like the company of a
smoker more. In fact, a person wins respect in the society directly in
proportion to the right he gives up for others. Sometimes asserting one’s
legitimate legal rights over another is not an acceptable norm or
respectable behaviour, like, for instance, a well-off brother insisting on
equal share of family property with his less fortunate brother.
Law can define and courts can enforce contracts. But neither can create
relations. Only norms, values and virtues nurtured by give and take among
individuals, families and the society can. Often law disturbs, even
undermines the integral relation between individuals, as it has happened in
most of the West. Increasingly uncomfortable with the very idea of a
society, the West began delegitimizing the society and promoting the
individual. In the process, it ended delegitimizing even families. The
result is what happened to the economies of many Western nations,
particularly the US, as the facts unveiled in the first part showed. This is
where the law and courts in India have to be sensitive to the social capital
that works here because of our cultural heritage. The cases like the cine
actress’ case has the potential to disturb the traditional Indian social
capital that has great economic potential as our defiance of the global
economic crisis showed.
PS: To cite Radha and Krishna for making pre-marital sex acceptable to
Indian sensibilities may not be appropriate as Krishna, according to
scholars on him, left Brindhavan when he was 10 years and seven months old.
The judges may have to look elsewhere next time.
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