The great mismatch

Liberal law, illiberal society

Women protest at North Police station, in Kochi, on October 21, 2018. PTI

A slew of judgements in the span of a month have shown the judiciary in the role of a champion of liberalism and progressive ideas. While that is laudable, there exists a  yawning gulf between practice, as prevailing in larger society, and precept, as envisaged by our higher courts. We are not in step with our judiciary. The challenge, therefore, is to effect a change in society that still, by and large, believes in the street justice of a ‘khap’ panchayat, or mob lynching, where people with dark instincts of communalism and sectarianism, or driven by gender, caste or religious stereotypes, take the law into their hands.

“Arthur Rimbaud was a mystic in a savage state”, said Paul Claudel, in a famous and beautiful sentence, meaning that our judiciary is way more progressive than our society is; but we must also remember what Joe Miller tells the judge in the movie Philadelphia: when Judge Garrett says, “In this courtroom, Mr Miller, justice is blind to matters of race, creed, colour, religion, and sexual orientation”, Miller shoots back, “With all due respect, your honour, we don’t live in this courtroom, though, do we?”

“Let us move from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life as the herald of a New India to a more inclusive society.” These lines, penned by former Chief Justice Dipak Misra along with Justice A M Khanwilkar, were part of the historic judgement that ruled that consensual gay sex is not a crime, while decriminalising a part of Section 377 of the Indian Penal Code. The former CJI waxed eloquent in saying that “denial of self-expression is inviting death”.

In another judgement declaring that adultery is not a crime, the Supreme Court bench struck down the colonial-era anti-adultery law, saying it was unconstitutional and treated women as “chattels of husbands”. Collectively, all the rulings by the SC, including lifting the ban on the entry of women into Sabarimala temple, attempt to establish an equal society and, in the instance of the Sabarimala verdict, the SC, as always, is seen not to be fighting shy of demolishing an age-old ‘tradition’ for the sake of progress.

Now, if we find that all the positive changes and right noises are either ushered in or are made only by our higher judiciary, with the society remaining as hidebound as it has always been, that may not be counted as social progress.

Liberalism itself is built on a foundation of contradictions: it trumpets equal rights while fostering incomparable material inequality; its legitimacy rests on consent, yet it discourages civic
commitments in favour of privatism; and in its pursuit of individual autonomy, it has given rise to the most far-reaching, comprehensive State system in human history.

John Rawls, in his celebrated ‘Theory of Justice’, claimed that we should acknowledge two rights: the right to the most extensive liberty consistent with the same liberty for everyone, and a right to just treatment, enshrined in the thought that inequalities are justified only to the extent that they improve the situation of the least advantaged.

The exception now is that positive, progressive changes earlier came with men of strong, visionary goals. Many important social changes were the outcomes of protracted struggles of social reformers. The SC is surely our moral imprimatur, but lest we forget, a Westernised intelligentsia had emerged among Indians in the 19th century and leaders of this class — Ram Mohan Roy, and later the Tagores, Vivekananda, Ranade, Gokhale, Tilak, Patel, Gandhi, Jawaharlal Nehru and Radhakrishnan — to name just a few — became the torch-bearers of a new and modern India. It is time to ask why the tradition of tolerance, syncretism and self-criticism that manifested themselves early in British rule looks suddenly besieged even after 70 years of Independence.

Policies for social change

Law in India was not used generally as an instrument for ushering in social change and the need of people, except in certain instances such as the laws to abolish ‘Sati’ and child marriage. While with the advent of the Constitution of India, a slow social transformation began, our law — including our Supreme Court — has failed in some more fundamental ways, though it has played an important role in policy control in important matters which have helped in furthering social change.

Ambedkar found in the caste system a complete contradiction of the triune ideal of liberty, equality and fraternity. He came to the conclusion that the emancipation of Indian society was impossible without abolition of the caste system. But caste rivalries are far from being wiped out and perhaps the caste system will never be abolished. Caste, rather than economic parameters, continues to be the basis of reservation policies.

While we talk about judicial activism, it is often due to a deficient legislative and executive that it arises. The #Metoo campaign looks like an urban trend in view of the general apathy women face in India because the root cause of all the evil practices faced by the women are illiteracy, economic dependence, caste restrictions, religious prohibition and often apathetic and callous attitude of men in society. Law and our courts can be of great help by changing colonial laws of property and entitlement, but the problem is more fundamental.

How can patriarchal states like Punjab, Haryana and Rajasthan — with a sordid record of female foeticide — be made more gender-sensitive? How can the cops in UP, for instance, be made more communally sensitive so as to take a neutral stand in times of communal flare-ups? The key is to initiate policies that favour the weak and the disadvantaged, but what is of foremost urgency is changing our mindset. The nation’s official State ‘religion’ has to be liberalism.

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The great mismatch

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