In Spirit of the Laws published in 1748, French philosopher Montesquieu pronounced: "Civil laws are not an appropriate tool for enforcing religious norms of conduct."
Over two-and-a-half-centuries later, it would seem that many courts in India that attempt to enforce religious norms and what are assumed to be widely accepted standards of morality haven’t yet imbibed the great man’s commonsensical dictum.
The latest example of this came when Virender Bhat, a Delhi additional sessions judge, acquitted a man accused of rape in January this year.
A couple had apparently had a consensual relationship with the intention of getting married. However, the man changed his mind about marrying the woman, who then accused him of rape.
While the judge’s pronouncement that every act of sexual intercourse between two adults on the promise of marriage did not amount to rape, was logical, his later comments exposed a parochial mindset that is dangerous in one called on to mete out justice: "The complainant must understand that she is engaging in an act which not only is immoral but also against the tenets of every religion. No religion in the world allows pre-marital sex."
Rather alarmingly, Bhat is not the only judge to make such comments. As the accompanying case studies show, judges across the country often hold forth on what they believe is the proper way to behave.
Unsurprisingly, given that power structures hinge on the position and agency of women, this translates into rules on how women should behave and is, ultimately, an unquestioning reinforcement of patriarchal norms. Indeed, the mention of "the tenets of every religion" itself is uncalled for in a court of law of a secular nation.
We only have to turn to the wise Montesquieu once again to understand the danger of conforming to religious laws: "When we attempt to enforce God’s laws for Him, or to cast ourselves as His protectors, we make our religion an instrument of fanaticism and oppression; this is a service neither to God nor to our country."
Today, India is witnessing a phenomenon described by many jurists as ‘judicial moralism’, where the distinction between law and morality gets blurred or even obliterated altogether. This can happen when a judge thinks all ‘moral wrongs’ should also be treated as judicial wrongs. It implies that it is permissible for the state or for judges to use coercive power to enforce the moral attitudes accepted by the majority.
The Chairman of the Law Commission of India, Justice AP Shah, does not approve of such behaviour. "India is a secular country and secularism is part of the basic structure of our constitution. When you (judges) try to preach morality, you should keep in mind that it does not violate various freedoms guaranteed to an individual under the constitution," he says.
Asked about the comments made by some judges, Justice Shah, a former chief justice of the Delhi High Court, said: "Judges should confine themselves to the issues involved in a particular case. Unnecessary and excessive comments not germane to the issue at hand should be avoided."
Eminent sociologist Dipankar Gupta believes there should be a check on unwarranted comments by judges.
"Judges quoting scriptures to prescribe a moral code of conduct cannot be acceptable in a liberal democratic setup. A judge is someone who went to a law school, studied law books and interprets statutes to decide cases," he says, adding that he is sure The Bhagawad Gita, The Quran or The Old Testament are not taught at law schools.
"If a judge makes comments based on religious scriptures, it’s a clear aberration. It is against the call of his duty. His call of duty is to decide cases on the basis of law; and it’s certainly not talking about religion and morality," he says.
Former law minister and senior advocate Shanti Bhushan has a nuanced view on the issue.
"Law is not always divorced from morality and every judge has his own understanding of law and morality. While a judge decides a case on the basis of law, he should be free to make comments. You can’t curtail the freedom of speech of a judge. If you don’t agree with him, you are free to criticise him. Ultimately, something better will emerge from the churning," he says.
Dipankar Gupta suggests that unwanted comments from judges be checked by prescribing a maximum limit on the size of a judgment.
"In India, judges write judgments running into hundreds of pages. The 1954 landmark verdict in Brown versus Board of Education in which the US Supreme Court declared state laws establishing separate public schools for black and white students unconstitutional, was barely 25-30 pages. Why can’t our judges be precise and to the point?" he wonders.
When judges get moralistic: Case studies
'Spinsters unfit for family cases'
September 5, 2012
Karnataka High Court's Justice K Bhaktavatsala told a female advocate that she was "unfit" to take up a case on behalf of an estranged wife because she was unmarried.
While the lady advocate was citing allegations against the husband, Justice Bhaktavatsala stopped her midway and asked, "Are you married?"
When she replied in the negative, he commented: "You are unfit to argue this case. You do not know real life. Why are you arguing like this? He is your (client's) partner, not a stranger. Family matters should be argued only by married people, not spinsters.
You should only watch." Justice Bhaktavatsala then said: "Bachelors and spinsters watching family court proceedings will start thinking whether there is any need to marry at all. Marriage is not like a public transport system. You better get married and you will get very good experience to argue such cases."
'It's like setting the clock back'
October 22, 2010
While delivering a judgment on live-in relationships in October 2010, Justice Markandey Katju and Justice TS Thakur mentioned the words "keep" and "one night stand". "If a man has a 'keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant, it would not be a relationship in the nature of marriage.
Merely spending weekends together or a one-night stand would not make it a 'domestic relationship,'" the division bench had said.
The only woman Additional Solicitor-General attached to the Supreme Court, Indira Jaising, said she and several women in the country opposed the expression "keep" and the use of the phrase "one night stand".
"It is like setting the clock back after the Supreme Court has passed the historic judgment in the Vishaka case. That judgment is cited in courts all over the world," the ASG had said.
'Inter-caste union defeat of family'
February 27, 2010
In February 2010, while commuting the death sentence slapped on three accused in a multiple murder case to life imprisonment, a division bench of Justice VS Sirpurkar and Justice Deepak Verma noted that the murders were the outcome of an inter caste marriage.
The bench remarked that in the case of inter-caste or inter-community marriages resulting from secret love affairs, society holds the woman's elder brother responsible.
"It is held as the defeat of the family. At times, he has to suffer taunts and snide remarks even from persons who really have no business to poke their nose into the affairs of the family," the bench stated.
"Dilip (the brother of the victim), therefore, must have been a prey of the so-called insult which his younger sister had imposed upon his family and that must have been in his mind," the bench said while commuting the death sentence upheld by the Bombay High Court for the three convicts to life imprisonment.
'Every indian must follow gita dharma'
September 12, 2007
In August 2007, while hearing a petition filed by a priest of a Varanasi temple over a dispute involving a temple property, a judge of the Allahabad High Court had said that the Bhagvad Gita should be made the national "dharma shastra."
Justice Srivastava said the Gita had greatly inspired those involved in the freedom struggle and continued to inspire people from all walks of life. "Hence, it is the duty of every citizen of India under Article 51-A of the Constitution of India, irrespective of caste, creed or religion, to follow dharma as propounded by the Gita," he said.
'No sex for girls before marriage'
October 7, 2013
Acquitting a man of raping a woman by deceitfully making her believe that she was his legally wedded wife, a Delhi court in October last year said that girls voluntarily elope with their lovers but then lodge false cases to escape a scolding from their parents.
"They (girls) voluntarily elope with their lovers to explore the greener pastures of bodily pleasure and on return to their homes, they conveniently fabricate the story of kidnap and rape in order to escape harsh treatment by parents," said additional sessions judge Virender Bhat.
"Girls are morally and socially bound to not indulge in sexual intercourse before a proper marriage and if they do so, it would be to their peril and they cannot be heard to cry later on that it was rape," Bhat said.
'Parents of girls should approve'
September 6, 2012
In September 2012, a bench of Justice K Bhaktavatsala and Justice Samudrala Govindarajulu of the Karnataka High Court said that girls below the age of 21 years suffered from hormonal imbalances. As a result, they easily fall prey to boys, fall in love, marry, and repentat leisure.
The court was hearing a habeas corpus petition filed by a 21-year-old man who had alleged that the girl he married had gone missing.
Justice Bhaktavatsala remarked, "In our opinion, girls below the age of 21 years are not capable of forming a rational judgment as to the suitability of the boy she is in love with."
"We suggest that in the case of a love affair of a girl, who is below the age of 21 years, there should be a condition that the parents of the girl should approve of the marriage, otherwise such marriages should be declared void or voidable," Justice Bhaktavatsala remarked.
'Rape victim chose wrong travel time'
September 2, 2013
At the inauguration ceremony of a Fast Track Mahila Court in Ramanathapuram in southern Tamil Nadu, Justice N Kirubakaran, a sitting Madras High Court judge, is reported to have said that women were equally responsible for the crimes committed against them. While interacting with the media, the judge allegedly commented that the December 16, 2012 Delhi gang-rape victim had chosen the wrong time to travel.
Rattled by such words coming from an officer of the higher judiciary, the All India Democratic Women's Association (AIDWA) had written to Justice Kirubakaran urging him to rise above such regressive views.
'Women suffer in all marriages'
August 31, 2012
While hearing a petition filed by a woman alleging domestic violence against her husband, Justice Bhaktavatsala of the Karnataka High Court counselled the victim saying "women suffer in all marriages."
"You are married with two children, and know what it means to suffer as a woman. Your husband is doing good business, he will take care of you. Why are you still talking about his beatings?" he asked. "I know you have undergone pain. But that is nothing in front of what you undergo as a woman," he said.