judging some recent judgements “It is a landmark judgement which proves to us once again the emancipatory potential of the Constitution. ‘Speaking of litigation’ was a response to this euphoria – drawing attention to the fact that there is a dreary side to the constitution – one that is unyielding to the demands of certain population groups even as it appears to be contemporaneous and responding to the evolving sensibilities of certain other social groups”…so said my good friend Anant Maringanti, responding to his post “Speaking of litigation” on Kafila’s blog. Anant was sharing a recent AP HC judgement which added an additional thirty rupees to the daily wage for agricultural labourers, ending a long-drawn-out litigation started by a collective of Coolies in the State. This was picked up and commented upon in another e-group, Jivika, and caused some response there as well. And Ashley Tellis, a social activist wrote a critical piece on the Naz Foundation judgement which ran totally counter to the euphoria with which the judgement was greeted. (http://www.hinduonnet.com/mag/2009/07/12/stories/2009071250120400.htm) He says and I quote: ” I have only one (point). Why was this entire case, based as it is on Constitutional provisions, not built on analogous reasoning with various other minorities like Dalits, adivasis and religious minorities, through the histories of progressive legislation with these groups, rather than on international cases to make theoretical arguments about equal treatment and reasonableness? Why was it not seeking to build bridges, like the proposed Equal Opportunity Commission, to show the common cause of minorities, to build a stronger collective politics?” And earlier, he points out ‘One section of the judgement has as its title the targeting of homosexuals “as a class” but there’s the other sense of class at work. This is a middle-class judgement for middle class gay boys who run NGOs and fancy alternative law outfits, all funded and ready to party. Hence, all the talk about privacy and individuality, not community and the publicness of lives.’ Somehow, both Anant’s and Ashley’s pieces seemed to touch a responsive chord in me. And even as I was coming to terms with the internal reverberations these pieces caused – musing on the way in which on the one hand, courts view the issues of those who cling with thier fingernails to their lives, depending on chance, the rains, random acts of kindness, and their own sheer instinct for survival to go from one day to the next. Contrast these with the NAZ Foundation judgement, and those who celebrated it. This judgement took five years to come – pun intended. Whereas there are umpteen cases relating to issues relating to the rights of forest dwellers, slum dwellers, or agricultural or industrial workers to relatively minor incremental benefits, but these take decades and may yet go against their interests. Which is why Anat found cause to celebrate judgement giving Rs 30 more to the take-home wages of an agricultural labourer. And what sticks in my craw is the fact that the judgement quotes Ambedkar on the issue of Constitutional morality, vs public morality, and privileges the former over the latter. But more on this later.
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July 18, 2009 at 8:22 pm |
Hi Cynthia,
Interesting point of view. Also, the papers I read said that the judgment quoted Nehru’s speech..Ambedkar wasn’t mentioned.
Would love to read ur take on these. I am blogrolling u.
July 20, 2009 at 8:47 am |
>”..This is a middle-class judgement for middle class gay boys who run NGOs and fancy alternative law outfits, all funded and ready to party. Hence, all the talk about privacy and individuality, not community and the publicness of lives..’
Interesting observation (by Ashley Tellis); and the other one, in which Anant expresses jubilation over an equally important judgment by the AP HC enhancing the daily wage for the agricultural worker by Rs 30/= after a pretty long course of litigation could certainly be read in perspective, thanks to your effort in juxtaposing these two.
The proposition by Ambedkar for Constitutional Morality to prevail over a concept of Public Morality shows the extraordinary diligence and sharpness with which our Constitution has been drafted by him.
Hence , it virtually serves a warning bell signifying the limits of fanciful interpretations of the constitution. Probably Ambedkar knew that the future judges of independent India were more likely to equate Public Morality with a Manu-ite sense of Morality given the predominantly Brahmanical background of the native jurisprudence. Through his writings which were the result of painstaking research on Hinduism coupled with formidable challenges in real life situations, of many of the the inhuman assumptions of caste Hindus, Ambedkar kept on flashing the basic element of his insight- in a land dominated by oft repeated discourses on the twin concepts of dharma and adharma, breach of caste was considered the greatest of all sins, the biggest adharma even graver than murder.
Therefore, it is certainly refreshing that the Honourable Judges in delivering their verdict related to Sec 377, IPC quoted Ambedkar on his point that Constitutional Morality should take precedence over Public Morality.
As Kalpana Kannabiran has pointed out in a similar discussion, the definition of the term Sex in Article 15 now gets a new dimension to include sexual orientation as well, apart from gender or biological Sex of individuals. Thus, constitutional guarantee against discrimination on the basis of sex ( along with discriminations on the basis of religion, language or place of birth) means protection against discrimination on the basis of sexual orientation as well, and this is what makes the judgment a landmark.
Even though the case was filed by (an NGO? ) NAS and the jubilations were mainly done by a section of the middle class and NGOs, that might not belittle its importance, as Anant also has acknowledged. Besides, the learned judges have rightly invoked the proposition of Ambedkar in resolving the clash between Constitutional Morality and the Public Morality.
The AP HC judgement in favour of enhancement of wages for agricultural workers certainly deserves loud applause and publicity though, I doubt whether it could be called a landmark in the sense mentioned above.
The long pending imperative of changing a highly consequential and negative societal attitude gets a big push thanks to the HC judgment on Sec 377; again, Ambedkarian agenda of social reform and true modernity is seen honoured here by the Hon HC Judges in in letter and spirit, and this is most important than anything else.