Supreme Court (SC) is currently hearing multiple cases involving culture and traditions, which is polarising the masses.
Considering the delicate scenario, judges will have to carefully strike a good balance between “their reformatory zeal” and “social prudence”.
What are the ongoing cases?
Currently, cases involving “Section 377 of the Indian Penal Code (IPC)”, and “Sabarimala case – for women entry” are playing out in the Supreme Court.
Hearings in both cases have seen clashes between the invocation of personal rights and the claims of cultural and religious groups.
Further, the case to decriminalise adultery will be taken up soon, which is also likely to attract the wrath of the pro-tradition brigade.
Notably, the government too has objected to the decriminalisation of adultery on the basis that it would destroy the institution of marriage.
What are the challenges in dealing with questions involving culture?
Settling a case that questions cultural practices is a complex task.
This is because these conflicts often represent deep, long-standing and irreconcilable divisions in society, and concern personal belief systems.
Containment - Even constitutional documents often consciously refrain from directly addressing them and rather provide a mere guiding light.
For example, framers of the Constitution deliberately placed the provision for a “Uniform Civil Code” under the unenforceable “Directive Principles”.
This strategy of leaving it to future generations to evolve solutions as an when situations arise is called the “Limited Containment Approach”.
Due to this, for the most part, conflicting cultural questions remain submerged and a tense equilibrium between contesting groups prevails.
Litigation - The equilibrium is shattered when one contesting group finally decides to break the stalemate, and raise the stakes towards a clear resolution.
While courts are the most sought after arena for resolving these issues, culture wars are particularly ill-suited for resolution through litigations.
Notably, unlike in political or economic disputes, a decisive loss in a matter involving personal belief risks alienated communities.
In certain situations, it might even lead to the erosion of faith in the neutrality and impartiality of state institutions.
What are the possible ways for the court?
Postponement - Considering the risks involved, some scholars hold that courts should tread with extreme caution while dealing with cultural issues.
Further, they vouch that courts should postpone such cases as much as possible and should preferably avoid hearing and deciding on such matters.
Narrow View - If the court must decide, then it should adopt the narrowest grounds possible, and limit its verdict to mere technical points in law.
This would help in avoiding tricky constitutional questions, consciously shun establishing a precedent, and ensure that the simmering dispute is subdued.
Importantly, judges should refrain from expressing any opinion on the validity of any personal belief or conviction – thereby reducing the stakes.
This approach is a pragmatic one to ease tensions rather than one that envisions establishing a utopian social-cultural order.
How would the “narrow view” approach look like in the current cases?
Section 377 - Government stated that it would not oppose decriminalising same-sex relations between consenting adults, if it is in the private domain.
During oral arguments, every time the petitioners pressed for more, the government counsel urged the court to limit itself to mere decriminalisation.
Sabarimala Case - Here, the validity of a rule which deny women of a certain age groups access to the temple is what is being looked into.
The pro-entry groups have pitched upon gender-equity as one of the precepts of right to freedom of religion while arguing their case.
But it is open to the courts to merely restrict itself to simply study the scope of the parent law and pronounce on its validity on purely technical grounds.
This would help in circumventing the controversial question on whether one is entitled to invoke religion as a ground to deny entry to menstruating women.
What are the other opinions?
Some thinkers decry the “narrow view” approach and alternately call for a “transformative approach” to end long-standing injustices.
While the narrow approach advocates a slow change through compromises, the contrary view advocates bang-on reform to rectify traditional misgivings.
Notably, strong laws and constitutional safeguards against caste based discrimination is a classical example of the “transformative approach”.
Transformative approach sees any retreat by courts in the face of strident cultural assertions as a betrayal of its constitutional mandate.
In this context, “transformative ideologues” argue that mere decriminalisation of 377 won’t suffice and call for institutional safeguards for homosexuality.
Similarly, in the Sabarimala case too, their argument is for denouncing gender as a ground for restrictions and discrimination within the religious domain.
Therefore, the court is faced with a stark choice between the narrow and the transformative approaches to navigate the uneven waters.
Quick Facts: Uniform Civil Code (UCC):
UCC is an envisioned set of codified (drafted) civil laws that is touted to replace the existing religion specific personal laws in India.
Notably, personal laws govern aspects like marriage, divorce, adoption, inherited ancestral property, religion etc...
UCC has been given in the DPSP (a guide to future governments) of the Indian Constitution and hence is not legally enforceable.
