Every law must have the sanction of society. However, the law cannot be made only based upon this sanction. There are social institutions such as marriage, family etc. that have undergone a drastic change due to so many factors like rising in literacy of women, changing perception towards marriage and the available option of divorce.
At the same time, India is a country of rich traditions, superstitions and patriarchy, all of which often oppose individualistic values. In the light of such a crossroads situation, the decisions of the Supreme Court of India make the concept of individualism a part of the right to privacy. This judicial activism as a tool to transform society is called ‘transformative constitutionalism‘.
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Changes in society compelled the judges to interpret laws in light of serving justice to the people who look up to the Judiciary as the last resort of their problems. Indian Courts have played a great role in serving justice through their judicial activism — a concept used for the purpose of correcting injustices happening to people by other branches of the government (legislature and executive) and for the purpose of adopting societal changes that are not reflected in the law of the country. This term was introduced by Arthur Schlesinger Jr in a January 1947 Fortune magazine article titled The Supreme Court:1947. According to Black’s Law Dictionary, judicial activism is a:
“judicial philosophy that motivates judges to depart from the traditional precedents in favour of progressive and new social policies”.
Recently, the Supreme Court of India has recognised the importance of individualism through judicial activism. Individualism refers to the idea that the freedom of thought and action for each person is the most important quality of society rather than shared effort and responsibility. This wave of recognising individualism stems from the concept of transformative constitutionalism. To start with, Constitutionalism is an adherence to the constitutional structure and conveys the idea of legal restraints upon the exercise of political authority.
On the other hand, transformative constitutionalism is the idea that constitutional values and principles are used to rebuild society on new principles. The aim of such transformative constitutionalism is to enable the state to create conditions for a just society. When it comes to the Constitution of India, individualism is, in all its glory, a fundamental right and the inclined dedication towards securing such fundamental rights is evident from the judicial precedents where ‘The Golden Triangle’ rule has ruled many important issues that come to the court.
According to the rule, Articles 14, 19 and 21 (Right to equality, right to freedom and right to life, respectively) of the Constitution are to be read together for judging any act or instance.
Such rights provided in the Constitution act as a great check for all the activities concerning public and private life, be it a political act or a domestic affair. So, it can very well be said that transformative constitutionalism, which is creating a just society, is deeply rooted in the Constitution of India.
Many elements such as the prohibition of untouchability (Article 17) and human trafficking (Article 23), the idea of secularism (the Preamble) and the right to equality (Article 14) under the Constitution of India are transformative in nature. Scholars like Gopal Guru and SK Chaubealso accept the view of the Constitution as a “transformative document”, albeit with certain apprehensions. Such a type of transformative constitutionalism is being built by the Supreme Court of India with its recent judgements.
Following are the cases where individualism got recognition through transformative constitutionalism.
1. On August 22, 2017, in Shayara Bano V. Union of India and others by a majority of 3:2 in a five-judge bench of the Supreme Court of India, the practice of ‘talaq-e-biddat’ was set aside. This is a form of divorce practised in India whereby, a Muslim man can divorce his wife by pronouncing ‘talaq’ three times either orally or in written form or through electronic means in recent times. This practice is also known as triple talaq.
On the other hand, all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. However, such right is subject to public order, morality and health and the other fundamental rights provided in Part III of the Constitution of India. But since the 1950s, the Supreme Court of India has applied the “essential religious practices” test to decide the validity of religious practices. It means that if any practice in religion is essential, then such practice cannot be invalidated by contending that such practice is contrary to public order, morality, health and fundamental rights.
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Based on the above notion of Article 25, Justice Kurian examined the practice of triple talaq in the present case. He held that the practice of triple talaq is not an ‘essential religious practice’ and thus, he set aside the practice. This practice was expressly held to be unconstitutional by Justice Rohinton F Nariman and Justice Uday U Lalit. Quoting their words in judgement,
“…….it is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation………therefore be held to be violative of the fundamental right contained under Article 14 of the Constitution of India.”
2. On August 24, 2017, a nine-judge bench of the Supreme Court of India in Justice KS Puttaswamy V. Union of India declared the right to privacy to be an integral component of Part III of the Constitution of India. However, the Court made clear that the right to privacy is not an “absolute right” and the right is subject to reasonable restrictions like all the other fundamental rights mentioned in Part III of the Constitution of India.
The Court also said that any action curtailing the right to privacy should satisfy the test of the “just, fair and reasonable” procedure under Article 21 of the Constitution. Apart from this, the judgement of this case has laid down the judicial review standards that are summed up as follows:
• Legality – the existence of a law
• Legitimate Goal – the law should seek to achieve a legitimate state aim
• Proportionality – there should be a rational nexus between the objects and the means adopted to achieve them
• Procedural Guarantees – to check against the abuse of State interference
3. Due to affirmation of the right to privacy as a fundamental right, the Court has given an individual a sense of freedom that attacked many invasions of privacy by societal practices and beliefs and laws. An instance is where, on September 6, 2018, the Supreme Court of India decriminalised homosexuality by holding that Section 377 of Indian Penal Code, 1860, is unconstitutional “in so far as it criminalizes consensual sexual conduct between adults of the same sex” in Navtej Singh Johar V. Union of India.
This judgement is an assurance of the right to privacy to individuals to decide their sexual orientation. The decriminalisation of homosexuality is the withdrawal of the state’s interference into the most intimate space of an individual. The Supreme Court in this case has brought the self-determination, which includes determination of sexual orientation and sexual identity or choice under the scope of the right to privacy guaranteed as individual autonomy to individuals that cannot be hampered in any way except constitutional morality.
The Court also clarified that an individual has complete sovereignty over their body and the intimacy between two in private is a matter of their choice. This case has made an ‘individual autonomy over sexual identity and over sexual choice’ as part of human dignity, which is protected under Article 21 of the Constitution of India. The excerpt from this case is as follows:
“Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her body… and their intimacy in private is a matter of their choice… The autonomy establishes identity and the said identity… becomes a part of dignity in an individual.”
Thus, the right to privacy vis-à-vis the sexual autonomy of an individual is assured with the condition of complying with constitutional morality.
4. On September 28, 2018, in the Indian Young Lawyers Association & Others V. The State of Kerala & Others case, the Supreme Court of India held the practice of forbidding ‘entry of female devotees between the age group of 10 to 50 years’ to the Lord Ayyappa Temple at Sabarimala to be unconstitutional. Quoting the words of Justice Dr Dhananjaya Y Chandrachud,
“The social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of ‘purity and pollution’, which stigmatise individuals, have no place in a constitutional order.”
Justice Dr Dhananjaya Y Chandrachud viewed the Constitution of India as a tool of social transformation. According to him, in a society marked by the differences of sex, caste, religion, race, the Constitution makes a perception of new social order, and the dignity of an individual is the cynosure of that social order. He also quoted the speech of a member of the Constituent Assembly that recognised that the truly just social order places the individual as “the backbone of the State, the pivot, the cardinal centre of all social activity, whose happiness and satisfaction should be the goal of every social mechanism”.
He also stated that the Constitution seeks to achieve a transformed society based on equality and justice for those who are victims of traditional belief systems founded in graded inequality. He added that the religious and traditional custom practices owe their origin to patriarchal structures and thus, the intersection of religious (traditional custom practices) and social (patriarchal structures) life produce a unique form of discrimination that puts women in a more disadvantageous position.
5. In Joseph Shine V. Union of India case, which was decided on September 27, 2018, a judgment on the decriminalisation of adultery shook the foundation of Indian society where women in marriage are protected in the name of protecting marital bond. The main reason is that the issue of adultery involves complexities of the ‘Indian culture’, the ‘chastity’ of women and the domination of men over women. Section 497 of the Indian Penal Code, 1860, dealt with defining and punishing adultery and Section 198 of the Criminal Procedure Code, 1973 dealt with the procedure for prosecuting adultery by a husband in a marriage.
Among the above-discussed cases, the decriminalisation of adultery directly opposed the patriarchal domination over women in a marriage. In India, the law on adultery makes married women who have consensual sexual relationships with an outsider as victims and husbands as the aggrieved persons who can prosecute criminal charges against the outsider. Also, when the husband in a marriage consents to such a relationship between his wife and another man, there is no offence.
The decriminalisation of adultery has affirmed the constitutional status given to women who have autonomy in their lives even when they get married to men. Adultery as the ground of divorce is of civil nature, which is the maximum intervention and regulation that can be done by the State in a personal relationship between two human beings.
This series of cases favoured the constitutional guarantee of rights of equality and privacy. In the light of social changes witnessed in the Indian society, the above-mentioned verdicts of the Supreme Court of India mark a great pavement for creating an egalitarian society. At the dawn of realisation of the importance of protecting individual rights such as the right to privacy, right to autonomy of one’s body, it’s a compelling duty for both the legislators and the society to make these rights a reality.
However, it cannot be said that such important decisions can have any sort of impact any time soon given the complexity of patriarchal traditions and culture in Indian society.