Pranay Parashar for BeyondHeadlines
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 elected and can be removed 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.
(The author is a civil services aspirant who appeared for Civil Services Mains Examination 2013. Views are personal.)