Published on 15th December, 2013, Mid-day.
Imagine someone telling a woman, “You should be more understanding of patriarchy. There is a rationale behind it. It is for the larger good. Its part of our culture, you see. Let the men decide if they want to do away with gender inequality. Until then you must submit to the law.” This would outrage me.
Imagine someone telling a Dalit, “You should be more understanding of untouchability. There is a rationale behind it. It is for the larger good. Its part of our culture, you see. Let the privileged castes decide if they want to do away with this custom of theirs. Until then you must submit to the law.” This would outrage me.
Now imagine someone telling a homosexual, “You should be more understanding of IPC Section 377. There is a rationale behind it. It is for the larger good. Its part of our culture, you see. Let the heterosexuals decide if they want to do away with this law, which criminalises you. Until then you must submit to the law.” This outrages me. For this is the spirit of the Supreme Court verdict that re-criminalizes homosexual acts expressed in private between consenting adults. At least, my reading of it.
That being said, I wonder: is this, rather contemptuous and condescending judgment, just the opinion of two judges, or just one single judge, part of his ‘anti-corruption’ legacy? Or is the opinion of the Indian judiciary? Is it an individual opinion or an institutional one?
Those who are angry with the judge need to remember he is part of an institution and in criticizing him they are criticizing the institution, which may be deemed inappropriate in the Republic of India.
Modern society is based on a belief: institutions are greater than individuals. Individuals can have prejudices. Institutions cannot. Institutions were created to ensure prejudices are destroyed and a fair object decisions are taken. In a democracy, institutions were established to protect and nurture minorities who would otherwise be overwhelmed by the majority.
This idea of the institution emerged in the West. In ancient Rome, the idea of Rome was greater than any Roman. In the Holy Roman Empire, the Church was greater than any king or clergy. In nation states, the state was greater than any politician, bureaucrat, judge or soldier or citizen. In corporate houses, the board is expected to be greater than the CEO. Underlying this trend is lack of faith in humanity — humans cannot be expected to be noble, and so a set of rules and procedures need to be created to ensure human society is noble.
But beliefs emerging in Indian scriptures are very different. Mahabharata inform us how rules can be twisted to create injustice (the disrobing of Draupadi). Ramayana informs us how upholding rules can create injustice (the banishment of Sita). Thus are we warned of depending too much on impersonal rules.
In the puranas, Swarga is created by Indra, Kailash by Shiva, Vaikuntha by Vishnu, Ayodhya by Ram. The kingdom is an expression of a king’s personality. The kingdom does not exist independent of the king. A judiciary does not exist independent of the judge. To create a noble society, the king/judge has to work on his nobility, elevate himself to be inclusive and affectionate. He cannot shrug his shoulders, turn away from the oppressed and point to the rules of the land.