It is often held that there is no
absolute truth just perspective, but there is something called reason.
But there are certain recent judgments of Indian judiciary that defy
reason as well as absolute knowledge. Being captivated by absolute power
which scorns any accountability is innate human tendency. This tendency
seems to pervade the mind of our honorable judges while delivering
these judgments nowadays. One can see a pattern of everyday injunctions
based on baseless assumptions.
A recent pronouncement by Delhi High
Court judge on premarital sex invokes discussion. The judgment held that
premarital sex is “immoral” and against “tenets of every religion”.
We have seen khaap panchayats or a
group of self appointed god men declaring acts as moral or immoral or
against tenets of religion but never before a court since courts are
invited to declare an act legal or illegal based on the strict adherence
to law. And in those cases where law is silent, judges are required to
restrain themselves and not to practice judicial promulgation, as they
may not be well aware of the ground reality, for which every democracy
has a proper channel called legislature. If someone has to decide what
collective consciousness can be it has to be the legislature which
represents and is accountable to people not judges who are not elected and
can be removed only by a tedious process.
Judgment has raised a question, which is
to decide what is moral or immoral. And is a collective morality on all
issues even possible in a country that encompasses huge diversity in
its every nook and corner. It is lack of knowledge and understanding
about Indian on the part of learned and honorable judge and the above
said case, as there are tribal and non-tribal communities in India where
premarital sex is not at all immoral. Muria and Gond tribes of Central
India have special homes called Gotul or Ghotul where girls introduce
younger boys to sexual life and its fundamentals and where unmarried
couples are supposed to enter into and test their sexual relationships.
Verrier Elvin, anthropologist and ethnologist and tribal activist
indicated the same in his book The Muria and their Ghotul. It can be said with convenience that premarital sex plays in Muria play a definite role in selection of future life partner.
India is a diverse country, people of
all major religion of the world reside here, hundreds of tribes carry
out their distinct cultural and traditional practices, thousands of
dialects are spoken, and regional variations in traditions are immense
in people of same religion. This diversity was precisely the reason why
Article 44 of the Constitution i.e. to enforce a uniform civil code was
made a Directive Principle of State Policy, rather than being placed in
Part III of the Constitution that could have coerced state to go for
homogenization thus wiping out immense cultural capital imbued in social
moorings in India and which could have endangered the unity of the
nation.
The judge has relied on religion to make
his point while forgetting that there are people who do not profess any
religion, there are communities who cannot be called to be under ambit
of any religion. Although there are enough examples to show that
premarital sex was prevalent in ancient India but even if religion
prohibits something would it be reasonable or rational to proscribe the
same things now, more than thousand years of the period when all the
major religion of the world have establish themselves. If religion is to
prevail we should bring monarchy back and abrogate hard earned
democracy and all other modern institutions and principles too.
Indian judiciary is always commended to
bring justice closer to poor by bringing right to food, right to sleep,
right to work etc under Fundamental right to life with dignity, thus
hailing itself the guardian of their protection. Sex, like food and
sleep, is a biological need thus should be considered as a part of right
to life with dignity, at least to the extent that when two consenting
adults are willing to engage in it, state shall not intervene. Then
there is sexual activity among those who are in live-in relationships
which our judiciary has not rendered illegal or even immoral and right
so. Further speaking sex is part of expressing a person’s feeling to
other and thus an inherent part of freedom of expression yet another
Fundamental right. The judge should have remembered that consensual sex
above age of consent is not forbidden by any law in India. Logic of age
of consent itself gives credence to premarital sex.
In recent times many judgments seem to
decide what two consenting adults can do in their bedroom. State should
rescue itself from private domains and acquiesce itself strictly to
sacred contract, focusing on governance and developmental issues,
violating which it could engender chaos and tyranny.
January 23, 2014