Understanding the Times – The September Judgments

Understanding the Times – The September Judgments

John Amalraj K, October 25, 2018

Published in ‘AIM; magazine of EFI, January 2019, Vol.48, No.01

The Supreme Court judgments delivered in September 2018, just as the former Chief Justice Dipak Misra was retiring had generated widespread opinions and comments across the nation.

The Old Testament book of Esther narrates a very interesting event in the kingdom of Persia. King Xerxes in consultation with selected experts in law and justice who understood the times, made a decree to depose Queen Vashti for her refusal to obey the King’s commandment. The reason for the decree was the perception that those who hear about the Queen’s conduct will act the same way like her and will show disrespect and discord. The concern was to ensure that women will respect their husbands from the least to the greatest. The decree was proclaimed to the ends of the kingdom declaring that every man should be the ruler over his own household.

The rulers, legislators and judges make decisions based on various interpretations, perceptions and public opinions. They may be right or they may be wrong. We know that ultimately God is the only one who judges righteously.  We need to understand the various laws enacted, judgments pronounced and governance decisions that have implications for our day to day life. We need to understand the times we live in.  The Indian Constitution owes its existence to the constitutions of the USA and UK which have strong Biblical foundations enshrined into their system. Majority of the laws in force today was passed during the British rule and some were a direct result of the evangelical impact on the British Parliament. (Refer to series of articles on the topic ‘Law and Christian Witness’ in Christian Manager magazine 2018 Issues.) The Supreme Court’s judgment in September 2018 striking down section 377 and 497 of the Indian Penal Code affects the public’s perception on the sacred institution of family life.

Privacy Rights Judgment – The Background: The media focus on the verdicts of the constitutional bench started almost a year ago in August 2017. To understand the verdicts of September 2018, we need to go back almost a year when the Supreme Court constitutional bench in its milestone judgment on 24 August 2017 declared that ‘Privacy is the constitutional core of human dignityⁱ’. The right to privacy is an intrinsic part of the right to personal life and liberty as enshrined in the Constitution in the section on the rights to freedom (Article 21). The words ‘Right to Privacy’ is not mentioned in the constitutional text. The judges further declared, ‘The right to be let alone is a part of the right to enjoy life. The right to enjoy life is, in its turn, a part of the fundamental right to life of the individual.’ This has implications ‘from what people say online to who they love, to what they eat. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be let alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy.’ This important judgment overruled all the earlier judicial pronouncements on restricting personal freedom and privacy and set the precedent for all subsequent references made to the constitutional bench on related issues.

Biblical View: From the scriptural point of view, ‘privacy’ has been affirmed as the right to personal life and liberty and the right to make choices.  This is inherent in the creation account as God gave human beings the freedom of choice (Gen 2:16-17). It was unfortunate that a wrong choice was made in the Garden of Eden leading to disobedience to God’s commandments (Gen 3: 6-7).  We suffer the consequences of that wrong choice.  God did not take away the ‘free will’ or ‘freedom of choice’ he has given but sent His only Son Jesus Christ to redeem the world to himself so that we can be given the opportunity to make the right choice of obeying God and receiving the free gift of salvation (Rom 5:19).  God did not create us as robots but as human beings with a free will to make choices. The people of Israel were taught through the mosaic laws, the sanctity of human life and that any offence or disobedience is not just in relation to other human beings but against God himself. Provision was made for a just and equitable society in Israelⁱⁱ, with respect for individual freedom and liberty. Provision was also made for appropriate punishment following due process of law whenever needed. The Supreme Court’s decisions point us back to how God created us in His own image. But the right to privacy and the liberty can be misused to mar God’s image in us by making choices that are not pleasing to God.  God is also clear about our role as a community – the whole issue of my privacy and my rights comes more out of an individualistic perspective – but there also is a Christian understanding of the community into which we are placed.   (Read “Fixing our Privacy Settings” Cover Story in Christianity Today, September 2018) 

Minority Rights Judgment: The ‘right to privacy’ came into limelight in the Supreme Court’s unanimous judgment on declaring parts of the Section 377 of the Indian Penal Code (IPC) as unconstitutional on September 6, 2018ⁱⁱⁱ.

The verdict decriminalized any consensual sexual relationships between two adults. However, it retained the reference to ‘any kind of sexual activity with an animal’ as a penal offence. It also said that if there is absence of ‘willful and informed consent’, then section 375 of Indian Penal Code related to rape will come into force and if anyone below the age of consent – i.e., a minor is involved the relevant laws will come into force. It further upheld the principles of constitutional morality against social morality, the rights of the minority against the majority and protection against any discrimination. The issue of ‘consent’ is challenging to prove in a patriarchal society where the masculine power seems to have no rival and ‘consent’ can be forced upon victims. Appropriate legal measures for victims are not always available.

This judgment generated a lot of social media discussions.  The media hype about it being a victory for the LGBT community – is an exaggeration. The judgment in itself is, based on the principles of upholding the rights of the minority, right to privacy and personal liberty protecting an individual’s choice of expressing his or her sexuality.

Questions on the Judgement: A closer analysis of the judgment raises questions on the conclusion of the honorable judges that ‘sexual orientation’ of homosexuals is ‘not against the natural order’.  The expression “against the order of nature”, has neither been defined in Section 377 Indian Penal Code nor in any other provisions but references made in various judicial pronouncements.  Medical research on genetics has yet to conclusively prove that ‘sexual orientation or attraction’ as a ‘homosexual’ is ‘natural’. Psychologists differ in their opinions on such behavior. But the fact is that these are personal choices individuals make that may affect the society at large. The traditional understanding of who is a ‘couple’ and what is a ‘family’ are now challenged.

There is a ban on the use of tobacco in public places because it is injurious to others. There is a restriction on use of alcohol by minors and in some states completely prohibited because of its effect on the public health. There is a ban on the use of drugs for entertainment as it is considered a social evil.  Polygamy once accepted as an inevitable cultural practice has been outlawed. Prostitution as an individual profession is considered legal – even though our society in general does not accept this practice. However, running a brothel, soliciting in public, illegal trafficking of women and children, pornography etc are prohibited by law.  There does not seem to be any consistency to make certain actions legal and others illegal based on the perspectives of the society.  The question remains whether the choice of a person’s sexual orientation is harmful to the rest of the society or not?

Individual Vs Community: Therefore, these judgments discuss the issue of constitutional morality vs social morality.  The judgment says, “Constitutional morality cannot be martyred at the altar of social morality…… the veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society.” They come to the conclusion, that constitutional morality is more important than the morality of the majority be it religious, social, cultural or traditional. Conservatives of all the major religions will find it hard to agree to these conclusions in the judgment. It is unfortunate that the media does not highlight Christian leaders or other conservative religious perspectives on the LGBT issue.  The implications of the Supreme Court’s decision means that we cannot condemn or ban those who choose to express their sexuality as ‘LGBT’, irrespective of our personal religious beliefs.

Confusion in Terminology: This is a controversial issue of ethical behavior on which many are ignorant of the ramifications and implications for the institution of family and the society at large. In the discussions on the media, we notice that there is a lot of confusion in understanding the terminologies that are being used. Very few people even understand the difference between homosexual (Lesbian & Gay - Involving or characterized by sexual attraction between people of the same sex^iv), Bi- sexual (Sexually attracted not exclusively to people of one particular gender; attracted to both men and women^v ) and Transgender (Denoting or relating to a person whose sense of personal identity and gender does not correspond with their birth sex.^vi).  The term ‘Transgender’ is sometimes used to refer to ‘Eunuch’ (a man who has been castrated, especially one who guarded women in some Asian countries in the past – a few who may be born with deformed genitals^vii) and/or ‘Hijra’ (a person whose birth sex is male but who identifies as female or as neither male nor female or typically, a person who was born man but who dresses as a woman ^viii). The common usage of these words seems to mix up the references. 

In the Indian society, Eunuchs or Hijra’s have been discriminated socially and economically and destined to live a life of poverty, abuse and exploitation. This is more because of superstitious beliefs, misinformation and misunderstanding. It is noteworthy to acknowledge that there are some changes in certain regions. We now have an ordained Christian minister from this community who stands as a witness for the Gospel near Chennai. The entertainment industry is attempting to bring them into the mainstream. Business entities intentionally employ persons from this community as part of their social entrepreneurship. The Government is also beginning to address their needs in various ways. We do have a long way to go in changing the mindset of our society in caring for these marginalized. 

The Historical Debates: The Western countries have debated the LGBT issues for a much longer time than us and in some of the countries, employment laws, marriage laws, inheritance laws, adoption laws etc., have been amended to reflect their present perspectives. But there is no consensus among the various faith communities and denominations. There are so many different theological interpretations emerging on the issue of homosexuals especially from the Western Church. We need to now ask, what is the theological stand of the Church in India on the issue of LGBT? Can there be a united stand across all the Christian denominations in India?  History records that it took more than three centuries for the church to adopt the Nicene Creed (325), to resolve the dispute on the divinity of Jesus. Even this was achieved with the assistance of state power, excommunications of dissenters and even martyrdoms. The Nicene Creed is now widely accepted in historical denominations, but you will still find fringe groups who deny the divinity of Jesus. As the laws of our country evolve, we need to be careful in our responses and reactions.

In the past, scripture and religious traditions were interpreted for the practice of slave trade, apartheid, colonization, crusades (war to take control of Holy sites in Israel) and indulgences (Roman Catholic practices). There are some who still interpret scripture and traditions to justify the practice of casteism, dowry, corruption & abuse of power. We need to be cautious in our interpretations of the scripture to condemn and judge people with whom we do not agree. Our protests should not discriminate the views and actions of the minorities who hold a different perspective on these issues. Our task is to continue to love our neighbors, obeying the commands of Jesus, continue to study the word for ourselves, discuss with like-minded believers and grow in faith & maturity.  We are called to show unconditional acceptance of other people as created in the image of God, though not their behaviour. 

Women Rights Judgment: The other judgment of the Supreme Court that attracted the attention of the media was their unanimous decision to strike down section 497 of the Indian Penal Code as unconstitutional on September 27, 2018^ix. The media’s headlines announced the following day, “Adultery is not a crime anymore”. Nothing is more far from truth than these headlines.  A better reporting would have been, “Husband is not the master of wife”.

Section 497 punished a person (man) for having sex with wife of another man without the permission of the husband. However, this sexual act was exempted from punishment if it was performed with the consent or connivance of the husband of the married woman. Also, the provision exempted the married woman from punishment, and states that she should not be even treated as an abettor even if she has given consent.

In this context, the judges discussed extensively on the issue of ‘adultery’ and whether it should be treated as a crime or not.  Except for this particular provision in the Indian Penal Code – adultery per se was not treated as a criminal offence. The Court in its judgment however clarified that adultery in any form will be a ground for divorce. It was also stated that if an act of adultery leads the aggrieved spouse to suicide, the adulterous partner could be prosecuted for abetment of suicide under Section 306 of the Indian Penal code.

Influence of the Patriarchy: The section 497 of the Indian Penal Code was an absurdity. The Chief Justice observed, “It treats women as chattel, and has chauvinistic undertones……….and amounted to gender bias”. The provision is anti-human in a very ostensible way in so far as it implies that a woman could be subjugated to this extent on the consent of her husband…this is unknowable to Indian thought…such consent or connivance is unacceptable”. He further said that, “there is no rationality in treating one party as the victim and the other as the accused for the same act…the only rationale behind the provision seems to be that marriage is an institution which has to be saved. In summary, the judgment upheld the equality, autonomy, privacy and dignity of women. It struck down the mindset of a patriarchal society where women’s freedom was subjected to her husband and went all the way to state that a woman had the freedom to make her own sexual choice even within a marital relationship.

The judges acknowledged that “marriage has been called an institution in all scriptures and it is built by two pillars and there has to be equal responsibility of both.”  Justice R. F. Nariman quotes various scriptures like the Manusmriti, Dharmasutra, Qur’an, the Torah specifically the Ten Commandments, the New Testament - St. Paul’s letter to the Corinthians and Jesus’ teaching on adultery and Jesus’ response to a woman accused of adultery as recorded by Matthew. On the question of treating adultery as a crime and the implications of the same is extensively discussed in the judgment. The Judge also quoted Lord Macaulay who drafted the Indian Penal Code for his reasons not to make adultery as a crime. “Many things which are not punishable are morally worse than many things which are punishable”. Lord Macaulay illustrates this that the law punishes a man who hits another man in a passion or breaks a window in a frolic but does not punish a man who shows his ingratitude to his generous benefactor by insolence. While adultery was not treated as a crime in the Indian Penal Code – it is strange that an absurd provision of Section 497 was included.  This only reflects the influence of the patriarchal society to think that ‘a wife was a property or an asset of the husband’ and the immoral practices prevalent at that time.

All the judges agree that adultery cannot be a crime but acknowledge that it is a sign of a marriage relationship that has broken or the result of a broken marital relationship. They argue that adultery is not treated as a crime by the English Law and many other countries around the world. It was also not treated as a crime by the existing Indian Penal Code – except for the unusual clause in Section 497 of the Indian Penal Code which is being struck down as unconstitutional. However, adultery has always been the ground for divorce. Making adultery a crime and punishing an offender is not going to save the institution of marriage.  Using the principles of right to privacy, the judges also said the state cannot enter into the privacy of an individual sexual choice.  If a wrong choice is made – like extra marital relationships, rape, molestation, harassment etc., there are other relevant laws that can be invoked against the offending person.

Biblical View: We as Christians must affirm the Scriptural teachings that women and men are both created by God in His own image, (Gen 1:27 cf.5:1, 2; Mark 10:6), that both women and men are co-heirs to the new life in Christ (1 Peter 3: 7), that it was God who first instituted family by joining a woman and man. (Gen 2:24, Eph 5:31), that the cross of Christ has provided the gift of salvation for all without any discrimination (Gal 3: 28) and that God has given both women and men, the ministry of reconciliation toward God and between humans (2 Cor 5:18-21).  As followers of Jesus we are expected to live on a higher standard than what the laws of the land may require us to follow (Matt 5:27-30).  We are called to proclaim the Good news of Jesus Christ in a context where the people are struggling to discern right and wrong.  

These Supreme Court judgments are part of the evolving jurisprudence and constitutional law - even though we may disagree on some of the court’s observations and decisions - we must understand the bigger picture. One of the judges makes a point that these pronouncements are part of a transformative justice process. Irrespective of our disagreements, we should agree on some of the principles that are emerging like not discriminating against other human beings on any grounds, giving due dignity to every person, practicing equality for all, providing freedom of choice and protecting the identity, liberty and privacy of every individual.

Concluding Reflection: These judgments on the ‘right to privacy’ gives hope that the understanding of constitutional rights will continue to evolve to protect citizens.  These judgments in the long run become judicial precedents for fighting future legal battles on some of our Christian concerns on religious freedom, anti-conversion laws, protection of minority rights, extension of reservations to Dalit Christians etc., Given a different set of Judges on the bench, we may witness a review, repeal and re-affirmation of several laws and past judgments in the coming years.  However, this depends upon the political climate, public opinion, cultural changes that may exist when a judgment is written.  The trial of Jesus of Nazareth conducted by Pontius Pilate as per the Roman Laws shows us that context influences judgments (Matt 27:11-26, Luke 23:1-25). Pilate succumbs to the political pressure from the Chief Priests, the Sanhedrin and the rulers who had organized the crowds to shout “Crucify Him”. They also warned him of possible accusation of acting against the interest of the Emperor Caesar (John 19:12). He also had a personal warning from his wife of a dream that the accused Jesus was in fact innocent (Matt 27:19). Pilate finally made his choice to wash his hands knowing that Jesus was innocent and handed him over to be flogged and crucified to satisfy the crowds (Matt 27:24-26). The rest is history.

Laws do not define sin. Judgments do not interpret sin. Opinions do not explain sin. Nature does not cause sin. Conscience does not expose sin. Rituals cannot absolve sin. The Holy Spirit is the only one who can convict us of sin, Jesus Christ is the only one who saves us from sin and God the Father is the only one who forgives all our sins. We are commanded to love God and love our neighbors without any preconditions. We are called to set our hearts and minds on things above where Christ is seated (Col 3:1-3). There is nothing more and nothing less.

John Amalraj, studied Law, Management and Theology and has served in corporate and mission organization leadership for more than 25 years.  He lives with his family in Pune and reflects on leadership and current affairs to serve as a resource person for churches and missions at large.  

The views expressed in this article reflect the author’s personal opinions and are not necessarily the views of the publisher, editor or any of the associated church, society, institution or organization.

 

ⁱ https://www.npr.org/sections/thetwo-way/2017/08/24/545963181/indian-supreme-court-declares-privacy-a-fundamental- right (accessed 10 October, 2018)

ⁱⁱ https://alhatorah.org/The_Torah_and_Ancient_Near_Eastern_Law_Codes (accessed 24 October, 2018)

ⁱⁱⁱ https://www.livelaw.in/section-377-ipc-summary-of-judgment-in-4-points (accessed 18 October, 2018)

^iv https://en.oxforddictionaries.com (accessed 20 October, 2018)

^v ibid

^vi ibid

^vii ibid

^viii ibid

^ix https://www.livelaw.in/husband-is-not-the-master-of-wife-sc-strikes-down-158-year-old-adultery-law-under-section-497-ipc (accessed 20 October, 2018)