“Personally, I do not attach any importance to the label which may be attached to it – whether you call it Federal Constitution or Unitary Constitution or by any other name. It makes no difference so long as the Constitution serves our purpose. We are not bound to have a constitution which completely and fully falls in line with known categories of Constitutions in the world. We have to take certain facts of history in our own country and the Constitution has not to an inconsiderable extent been influenced by such realities as facts of history”. – Dr Rajendra Prasad, Constituent Assembly Debates,
Vol 11, November 26, 2023
On March 24, 2023, a Supreme Court bench reversed its 2011 ruling in the Arup Bhuyan versus State of Assam case and revived the doctrine of guilt-by-association and upheld Section 10 (a) (i) of the Unlawful Activities Prevention Act (UAPA), 1967. In another significant event, former judges issued a statement against legalising same-sex marriages in the country. Both these events involving the judicial proceedings may look unrelated, but they have a strong connection to the fundamentals of jurisprudence in Bharat saving it from the excess ‘Americanism’ in interpretation.
The UAPA case is historic, especially after the amendment made in the 1967 Act to make it possible for the Union Government to designate an individual as a terrorist if one is found associated with the banned organisation. This provision was toothless because of the 2011 judgement, which pronounced that mere membership of a banned organisation would not make a person a criminal unless he resorts to violence or incites people to violence. Many Maoists and Islamists harbouring anti-Bharat activities through banned organisations like the Communist Party of India (Maoist) and Popular Front of India (PFI) got relief from the Courts based on this interpretation. The Government could ban organisations for threatening the integrity and sovereignty of the nation. Still, it could not catch the individuals vouching for and openly propagating violent ideas due to the judicial interpretation of the law. Hereafter, investigation agencies will find it easier to deal with terrorist activities by organisations and individuals.
It is not just the implications of this judgement but also the basis of reversal in the Court ruling that is critical. The vociferous argument made by Solicitor General Tushar Mehta on behalf of the Union Government questioned the very foundation of the interpretation of ‘freedom’ used by the then bench led by Justice Markandey Katju. Justices Shah, Ravi Kumar and Karol were unanimous that the Justice Katju-led bench committed a serious error by “straightaway and directly following the US Supreme Court decisions and that too without adverting to the differences and the position of laws in India to arrive at the ruling”. While interpreting our Constitutional laws, this very problem of ‘Americanism’ has created confusion in many other cases, such as the right to privacy, same-sex marriages and the sanctity of temple traditions.
Here, the statement issued by former judges led by Justice SN Dhingra becomes important. The issue of same-sex marriage is pending before the Court, and many groups and individuals are pursuing the same before the apex court. Former judges, in their statement, urged “the conscious members of the society including those who are pursuing the issue of same-sex marriage in Supreme Court to refrain from doing so in the best interest of Bharatiya society and culture”. They called it ‘a cancerous problems that the West is facing and are sought to be imported into Bharat by vested interest groups through the misuse of judiciary’. Article 377, which declared same-sex relations a crime based on Victorian morality, is already nullified. But, equating same-sex relations to the institution of marriage is going to the other extreme. In the Bharatiya tradition and laws, marriage as an institution is beyond a contract or legal registration. While pursuing and deliberating on marital issues, this Indic perspective should be central.
The Constitution of Bharat is meant for ‘We, the people’, as it is adopted and enacted by and for the people of Bharat. The American or European wisdom on legal jurisprudence cannot become the basis for interpreting our laws. Our Constitution makers also envisaged the fundamentals in the same way. As many judges advocate indigenising the legal system, rejecting this trend of importing American decisions to the Bharatiya condition is a welcome step forward. It should not be the end but a beginning in indigenising jurisprudence.
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