On 8th February 2019, the Indian Institute of Human Settlements held a panel on major 2018 Supreme Court judgments, titled “Dignity and Law: Judgments as Public Texts”. CLPR Managing Trustee, Professor Sudhir Krishnaswamy, moderated the panel. The panel comprised advocates Aarti Mundkur and Arvind Narrain, and feminist activist Madhu Bhushan.
Live-stream of the event available here:
Ms. Mundkur analysed the Section 377 judgment, where the Supreme Court read down Section 377 of the Indian Penal Code as unconstitutional on the grounds that it discriminates against individuals on the basis of their sexual orientation and/or gender identity. In analysing the judgment, she focused on the Court’s interpretation of Article 15 of the Constitution. Article 15 prohibits prohibits discrimination on the basis of sex, amongst other things. She emphasised that a key precedent set by the Court’s judgment is it’s interpretation of the term “sex”. The Court broadened its interpretation of sex to include gender identity and sexual orientation.
Mr. Narrain spoke on the Sabarimala judgment. In September 2018, the Supreme Court held as unconstitutional the temple’s custom of excluding women from entering the inner sanctum. He focused on Justice Chandrachud’s concurring opinion. Mr. Narrain emphasised that the Court ruled that dignity is inherently linked to the freedom to practice religion under Article 25. He demonstrated how dignity is an indivisible whole that cannot be limited in any shape or form. Hence he said that it followed that female worshipper’s fundamental right to worship could not be limited by the temple.
Ms. Bhushan elaborated on the adultery judgment, wherein the Supreme Court struck down Section 497 of the Indian Penal Code, decriminalising adultery. She emphasised how the judgment struck down the colonial provision partially because it was based on discriminatory gender stereotype. She discussed how the provision envisaged a wife as her husband’s property, who could not be trusted, as being a woman, she is by nature a seductress. In addition, Ms. Bhushan also discussed how prior to the judgment, many feminist activists actually did not view the provision in a negative light. The provision was in many ways beneficial to women, as it only criminalises adulterous men and not women.