For once,SC leaves it to Parliament

An illustration of this role came in the Shah Bano judgment of April 1985.

Written by Utkarsh Anand | New Delhi | Published: December 12, 2013 1:02:13 am

The Supreme Court’s judgment on Section 377 marks a break from a trend that has seen it push a series of social changes over the years. This time,it has put the ball in Parliament’s court rather than assert itself yet again with judicial policy making.

In the last several decades,movements and groups advocating social reforms have increasingly turned to courts,which in turn have made judgments and observations that have led to an implied premise that courts can bring about change where the legislative and executive are reluctant to act.

In a 1982 judgment in S P Gupta vs Union of India,the Supreme Court had set a goal for the judiciary: “It has to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice.”

An illustration of this role came in the Shah Bano judgment of April 1985. The Supreme Court ruled a Muslim woman was entitled to get alimony under the general provisions of the CrPC,like anybody else. Following protests from various Muslim leaders,the Rajiv Gandhi government got the Muslim Women (Protection of Rights on Divorce) Act passed. This diluted the effect of the Shah Bano verdict by allowing maintenance to a divorced woman only during the period of iddat — for 90 days after the divorce. The court,however,interpreted the law yet again in Daniel Latifi vs Union of India,2001. It upheld the Act in so far as it confined the time period of maintenance to the iddat period,but held that the quantum of maintenance must be “reasonable and fair” and therefore last her a lifetime.

The judgment in Unnikrishnan J P vs State of Andhra Pradesh was another such example,when the court said the “right to education is implicit in and flows from the right to life guaranteed under Article 21” and that “a child (citizen) has a fundamental right to free education up to the age of 14 years”. The government responded to this call nine years later by introducing Article 21-A,which provides for the fundamental right to education for children between ages six and 14.

The decision in the Vishaka case of 1997 brought into public discourse the issue of sexual harassment of women at the workplace,till then largely ignored by governments. The guidelines the court laid down gave such women the right to access judicial redress. Years later,the 2013 Criminal Law Amendments Act and the corresponding changes in the IPC and CrPC saw the Vishaka guidelines finally translated into specific legal provisions. The new law defines voyeurism,stalking,any unwelcome physical contact,demand for sexual favours,sexual overtures or sexually coloured remarks as offences.

The right to food,which the government is now trying to ensure through a food security law,had first been taken up by the Supreme Court in 2001. The NGO People’s Union for Civil Liberties had approached it for relief,with several states facing their second or third successive year of drought. The court ordered immediate distribution of food to the “aged,infirm,disabled,destitute women,destitute menin danger of starvation,pregnant and lactating women and destitute children…” It then directed states to ensure all PDS shops were reopened and to identify BPL families. The court is still monitoring the implementation of these directives.

In 1995,the court directed the government to evolve a scheme for the compensation and rehabilitation of rape victims. A scheme called ‘Relief to and Rehabilitation of Rape Victims’ was eventually approved by a committee of secretaries in March 2006. The Criminal Law (Amendment) Act,2008,introduced the definition of “victim” in section 2(wa) of CrPC and section 357A of CrPC,inserted in 2009,which made it mandatory for every state,in coordination with the Centre,to prepare a “victim compensation scheme”.

Later,the court also pushed the legislature to frame laws for more stringent punishment for acid attacks,coupled with an obligation on the government to adequately compensate victims. In 2012,the government enacted Section 326A and B in the IPC specifically on acid attacks,which can now can fetch imprisonment of a minumim 10 years extendable up to life.

The Supreme Court has also nudged the government on the right to work (which now is in the form of Rural Employment Guarantee law),right to legal aid,right to health and emergency medical care and against female foeticide.

As recently as in the last week of November,the Supreme Court came out in support of live-in relationships,saying that such a relationship is “neither a crime nor a sin though socially unacceptable.” It urged Parliament to consider framing a comprehensive legislation to protect the interests of women in and children born out of such relationships.

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