Background
That subjective morality influences judicial interpretation of law is a given. But, this influence has to remain within the paradigm set by the law and cannot operate outside it or breaking it. So there are two moralities that effect the outcome of any case, one the morality of the law itself and second how the morality of the judge works in the interpretation of the law. It is in this context that judicial attitude towards sexuality has to be analyzed. And for this first the entrenched patriarchy of the legal profession has to be acknowledged. The best evidence for this is the representation of women at every level of the profession from the bench to senor advocates to advocates on record to the lowest echelons of the bar and judicial bureaucracy.
Indian law with respect to sexuality is in a Victorian time warp. It continues to criminalize any sexual activity that is not penile-vaginal penetration, so much so that till recently when the definition of rape was amended and the Protection of Children from Sexual Offences Act was enacted this was the paradigm of penalizing non-consensual sexual predation. Add to it the ingredients of individual judges’ patriarchy and accumulated religious and social conditioning. It is a recipe for disaster.
Most judges, with few honorable exceptions like Justice A. P. Shah, the former Chief Justice of the Delhi High Court and Justice S. Muralidhar, have approached cases relating to sexuality, including domestic discord and violence, from the perspective of the need to protect patriarchal heterosexual monogamy regardless of however violent and abusive the institution is.
In fact even the high priest of Indian human rights jurisprudence Justice V. R. Krishna Iyer was no exception. To demonstrate, in A. Yousuf Rawther v. Sowramma AIR 1971 Ker 261;
“What deeply disturbs a judge in such case-situations is the conflict between doing justice by promoting a rapprochement and enforcing the law heedless of consequence. Sowramma, a Hanafi girl, around 15, married in 1962 Yusuf Rowthan, nearly twice her age, but the husband’s home hardly found them together for more than a few days and after a long spell of living apart, an action for dissolution was instituted by the wife against the husband. The matrimonial court should, and I did, suggest to counsel, in vain though, to persuade the parties to repair the broken bond.”
However, despite their patriarchal limitations, these Judges never transgressed the boundaries of the existing legal framework. There has been serious body of feminist criticism of the context of the legal system, contents of law, dynamics of the judicial process and ideology of judges. However of late, particularly in the last few decades, there has been a disturbing trend where some judges have been transgressing the legal framework to accommodate and perpetuate their entrenched patriarchal morality.
The Kerala High Court is a case to the point, with Justice K. T. Sankaran giving weight to the newly coined Hindutva fancy ‘ “Love Jihad” in 2009, despite the State Police and Intelligence filing an affidavit that the concept was ill founded and just a rumor. Justice Sankaran simply could not digest that adult women from “good” families could fall in love and act of their own volition.
The situation got so embarrassing for the High Court that the case was reassigned to another judge for disposal. In 2011, while disposing off a habeas corpus petition, Justices Basanth and Hema Rani, went beyond the legal requirements for such a petition and decided to solve the “dispute”, by forcibly sending an adult woman against her wishes to a hostel with restrictions on whom she can meet and talk to – virtually imprisoning her for having exercised her option in love.
Recently, June 25, 2016, Justice Vinod Chandran passed an order transgressing the legal framework on a similar case which is the point of analysis in this essay. All of these are clear cases of judicial overreach – judges going beyond what they have been mandated by law to assuage their own sense of morality. This new trend makes the task of critiquing judicial pronouncements even more problematic. Quite often, unwittingly one finds oneself taking recourse to the archaic misogynist laws to point out the legal fault lines of these judgments.
X vs. University of Kerala and Others
The facts have been extrapolated from the order itself. A woman who had finished 2 of the 3 year undergraduate course at the Mar Thoma College of Science and Technology, Chadayamangalam, Kollam had eloped with her classmate. Someone filed a missing complaint with the police and the couple were apprehended from Trivandrum.
The management initiated disciplinary action against the couple, constituted a five member disciplinary committee comprising of senior faculty members of the college before whom the couple truthfully admitted to their actions and were consequently rusticated. The woman challenged the rustication before the Kerala High Court where Justice Vinod Chandran upheld the rustication.
The order that upholds the rustication is prima facie problematic. Firstly and most importantly Justice Chandran does not place reliance on any existing law except a 1994 precedent from the same High Court, Headmaster, Poilkav High School,vs Murali A. And Ors without distinguishing facts and application of law in the precedent.
The latter case is regarding the rustication of a boy from a school based on his conduct and behavior inside the school premises some of which clearly violated the law and the judgment was based on the Kerala Education Act and the Kerala Education Rules. In effect Justice Chandran relies on a precedent that has no bearing on this case and the only similarity is that the precedent was also on the question of rustication. It cannot be helped that one has to point out that the reasoning and research in the order is downright lazy.
Justice Chandran acknowledges that the petitioner has excellent academic track record and has committed nothing illegal. His first concern seems to be a breach of a fictitious discipline that exists purely in his mind, for he does not quote from any rules or statute where her action of eloping and staying with her friend constitutes a breach of discipline.
Most judges, with few honorable exceptions like Justice A. P. Shah, the former Chief Justice of the Delhi High Court and Justice S. Muralidhar, have approached cases relating to sexuality, including domestic discord and violence, from the perspective of the need to protect patriarchal heterosexual monogamy regardless of however violent and abusive the institution is.
Even if such a rule existed, it would be ultra vires the Constitution as it will clearly violate the petitioner’s fundamental rights for the college can try (in a limited and reasonable way without contravening the law) and impose restrictions on her behavior and conduct within its campus – but her action outside is completely her choice and no institution including her family can have a say in it as she is an adult.
His second concern which is originally flagged by the committee constituted by the College is that the friend she eloped with was not of marriageable age. This raises quite a lot of technical anomalies and illegalities that the judge has committed in passing this order.
Firstly, it was not the woman who was not of marriageable age, secondly and more importantly they did not get married, thirdly even if they had gotten married, under section 9 Prohibition of Child Marriages Act, 2006 – only a male adult contracting a marriage with a female child is an offense, fourthly even if they were married, the marriage is not void, but is only voidable under section 3 of the Act, at the instance of the person who was under age at the time of the marriage – meaning that such a marriage can get legitimacy in the eyes of the law at the discretion of the contracting parties. (This was what I was mentioning in the introduction that unwittingly one finds oneself taking recourse to the archaic misogynist laws to point out the legal fault lines of these judgments).
Here it appears as if the honorable judge has not read or applied his mind while invoking the question of age of marriageability for the purpose of justifying the rustication of the petitioner.
What the judge overlooks are as follows:
1. It is not an offense if two consenting persons contract marriage and it is the male who is under-age for the purposes of the Prohibition of Child Marriages Act, 2006
2. A person cannot be penalized for a transgression of law that never occurred
3. From the record it seems obvious that the petitioner had no intention to get married.
This makes the very discussion on the question of the age of the petitioner’s friend irrelevant for the discussion on justifying the rustication.
The question before the court was the justiciability of the rustication, instead the honorable judge goes beyond his legal mandate and acts as a patronizing benevolent mediator and asks the management to explore the possibility of “admitting the petitioner back to college”, obviously with negative result. But as a lawyer what is more shocking for me is that he has the gumption to place this bit of extra-legal activity on record to justify the upholding of the rustication.
Further, coming to the question of whether natural justice was followed in this case. In the first place, the college had no business issuing a show cause notice on the actions of students outside the campus in their individual capacities. They were not representing the college in their decision to love or live together. The members of the disciplinary committee appointed by the principal were all employees of a private management college making them vulnerable to manipulations from the management and having a vested interest in this issue. There was not a single neutral member who could not have been influenced by the management of the college. That the university refused to interfere in the college’s decision cannot be used without application of mind for justifying the rustication.
It is rather amusing that the judge bought the argument of the respondent that the petitioner had approached multiple forums against the order of rustication. It is only natural that when a person’s future is under threat, the person will knock at all possible doors for securing the same. To hold that against the person is downright inhuman and cruel. This argument is akin to saying that a person’s guilt is proven because s/he approaches different forums to get the prosecution against her set aside!
Of course the students admitted to their action, but that does not mean that the action can be read as misconduct. Such a reading is downright churlish and illogical insofar as there was no conduct that happened inside the jurisdiction of the college that was in violation of any law or rule in place. Justice Vinod Chandran plays God when he says that every adult should be ready to face consequence for her actions.
However of late, particularly in the last few decades, there has been a disturbing trend where some judges have been transgressing the legal framework to accommodate and perpetuate their entrenched patriarchal morality.
Of course every adult should be responsible for any action that she does, but the consequences of those actions as long as it does not breach any existing law does not come under the purview of any law judge. The action of the petitioner in so far as this case is concerned is an exercise of her fundamental rights guaranteed under the Constitution of India and penalizing her for exercising her rights is unconstitutional – and that is exactly what the college management did and what Justice Vinod Chandran has endorsed. The order is a serious judicial misconduct and breaches every pillar of justice on which common law jurisprudence is based.
This order throws up three disturbing issues that needs to be dissected to highlight the fault line in the above order:
1. Moral Policing and Misogyny in Kerala
2. Caste and misogyny among Syrian catholic communities
3. Judiciary as moral torchbearers
Moral Policing and Misogyny in Kerala
Belying Kerala’s progressive illusion, any person who has traveled in Kerala after 9 in the evening will notice the gradual disappearance of unaccompanied women from public spaces. And those who dare to travel alone very often face unpleasant experiences. Not that one is safe when travelling accompanied by a male either. Questions about relationship with the male companion pops up in public spaces.K. K. Shahina sums it up succinctly;
“Men in Kerala appear over-concerned about what women do, how they turn up in public—with whom, how, and when. To fall in love is almost seen as a crime in the state now. Public spaces are being fumigated, so to speak, to protect society from such dangers as public displays of affection. A couple sitting together in a park or on a beach can expect to be roughed up by strangers, some of them in police uniform.”
It is not only women who are at the receiving end of moral policing; men too, if they are seen in the vicinity of a single woman, there have been instances of them being lynched. Inter-caste marriages are frowned upon; inter religious marriages painted as love jihad; live in relationships unthinkable and unless hidden queer existence next to impossible. Schools, colleges, workplaces and general public decree what should be the appropriate dress code for women and any aberration is met with stringent punishment.
The bottom line is misogyny which has always defined and continues to define the public space in Kerala, be it cultural, political, economic or social. Kerala is scared of its own repressed sexuality while being furtively sexually active. Voyeurism is the national pastime. And anyone brave enough to cross the line publicly and unapologetically need to be taken to task.
Caste and misogyny among Syrian Christian communities
It is not that other communities are any less castiest or misogynist, this present case has happened in a college run by one of the Syrian Christian sects of Kerala and therefore calls for a discussion on the attitude of the larger Syrian Christian communities towards love, community and women. All Syrian churches of Kerala, Catholic or non-Catholic, following the East or West Syrian rites claim their origin to the five Brahmins who were first baptized by St. Thomas.
All those who supposedly converted later (read lower castes) are clubbed into the Latin Catholic church if in the Catholic tradition or as Protestants. In short it is impossible to convert to any of the Syrian Christian faiths except some mobility is allowed within the various sects for the purpose of marriage. Otherwise Syrian Christians are strictly endogamous. In short a Syrian Catholic marrying a Latin Catholic is as unthinkable as a Syrian Catholic marrying a non-Christian.
Justice Chandran acknowledges that the petitioner has excellent academic track record and has committed nothing illegal. His first concern seems to be a breach of a fictitious discipline that exists purely in his mind, for he does not quote from any rules or statute where her action of eloping and staying with her friend constitutes a breach of discipline.
This attitude of the communities towards inter-marriages was amply demonstrated by Idukki Bishop Mar Mathew Anikuzhikattil, Chairman of the Kerala Bishops’ Council for Family Commission inaugurating a Pastoral council meeting denouncing ““Inter-caste marriages would destroy Christian essence and style. Our girls are being abducted by love jihad… secret aims of the SNDP Yogam. We should be vigilant against this.” He further adds; “When a girl who lived with her parents till the age of 18, who studied at Sunday school about Christian faith till 12th class, who had grown up in our faith and tradition, walks away with a Muslim or an auto driver or an SNDP man, that shows the deficiency in our faith and teachings,”
It has to be pointed out that the Bishop’s concern is about girls who marry outside the community and particularly to a Muslim, Auto Driver and an Ezhava (SNDP man) and not vice versa. Dalits are not even in the reckoning. This is not a one-off opinion. Inaugurating a matrimonial website, http://www.syromalabarmatrimony.org,, Bishop Jose Porunnedam endorses the above view saying “there is an increasing trend among youth from Kerala to resettle elsewhere in India and abroad for studies and jobs. Over time, they also settle down in those places. In such circumstances, there is a high likelihood of them marrying people from other religions, and thereby leaving the Catholic faith”.
Though these views come from the Syrian Catholic church, they are very reflective of the attitude of other Syrian Christian Churches towards exogamy, women and caste. The Mar Thoma Church under which the college operates is one of the Syrian Christian communities in Kerala, whose numbers are relatively low. The rustication of Ms. X, when there was no legal basis for it, is indicative of the caste and gender insecurities of the management of the college.
Judiciary as moral torchbearers
In fact, Justice Vinod Chandran is known to be a conscientious judge. He is known to have walked out of the court hall protesting the way the Advocate General’s office was delaying cases, summoned the AG and chairperson of the Bar Council and taken them to task. But it is not unusual for otherwise upright to fall into this pit to walk the extra-legal mile to uphold their version of morality. The problem is that when judges pass orders like these, they lend legitimacy to the divisive, hegemonic and partisan agenda of social and religious leaders. These kinds of orders deny agency to citizens in exercising their fundamental rights. The order is downright misogynist as it denies the agency of an adult woman to her choice and infantilizes her.
Even within the paradigm of jurisprudential discourse, this order is unconscionable. The judges personal morality or opinions are subject to the limitations of the law and it cannot be the other way around and if a judge feels strongly about the law in force, the best option before her is to relinquish her place in the bench and take to the barf to carry on her social or political ideology or aspirations. Judges are not in a popularity contest, they are supposed to be doing the serious business of safeguarding the law, not popular morality.
I wonder whether Justice Vinod Chandran practices law or his subjective morality on the bench. A blot on the judicial landscape, the moot question is whether the Judge should be a legal torch bearer or a moral torch bearer. For me the answer is obvious, but I hope our judiciary does some soul searching on this too!
Courtesy: Kafila.org