by

Fali S. Nariman

Discrimination Despite Laws: The Indian Experience

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IICoCCasIonal PublICatIon 15

Discrimination Despite Laws: The Indian Experience

IICoCCasIonal PublICatIon 15

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Discrimination Despite laws: The Indian Experience*

December 10 is Human Rights Day but few of us really know what makes us celebrate the event. The official reason, of course, is known – it was on the tenth

day of December (1948) that the UDHR (the Universal Declaration of Human Rights) was passed by acclamation by the entire General Assembly of the United Nations.

There is, however, another reason, not known to all: it was related to me by Mr. John Humphrey, the first Director in the UN Division of Human Rights and the person whose draft made it to the General Assembly. John Humphrey became a colleague of mine on the International Commission of Jurists, Geneva, and he told me why Human Rights Day is celebrated world wide.

When the work of the Human Rights Committee ended, it was felt that it would be fitting to have a small celebration. The Chairman of the Committee, the indefatigable Mrs. Eleanor Roosevelt, produced a bottle of wine that had been presented to her many, many years ago by her great-uncle Theodore Roosevelt, president of the United States. The French member of the commission, René Cassin (himself a great human rights activist), was given the honour of opening the bottle, which he did with great aplomb!

The contents of the bottle were poured into glasses and Cassin proposed a toast. All the members of the committee lifted their glasses and took a sip. But, alas, the wine, which had been preserved for so long, had turned to vinegar! Mrs. Roosevelt never sensed what was wrong, for

It was on the tenth day of December (1948) that the UDHR (the Universal Declaration of Human Rights) was passed by acclamation by the entire General Assembly of the United Nations.

1

* Human Rights Day lecture delivered at the India International Centre on 9 December 2009, in collaboration with the United Nations Information Centre and O.P. Jindal Global University.

she could not tell the difference between wine and vinegar. This is when the rest of the members said to one another that they must keep the memory of this great document from turning sour.

The Universal Declaration had attempted to achieve peace and happiness in the world – for all its inhabitants. Yet, after more than sixty years, can we honestly say that it has succeeded? I am afraid not. That is why the UN adopts on Human Rights Day every year a theme for introspection and discussion.

This year the theme is: ‘Embracing Diversity, Ending Discrimination’.

The union of states that we love to call ‘India’ is a vast cauldron of diversity. Over the years, this diversity has undermined the governance of India: even its oneness. However, with luck and determination, we have survived six decades and our Constitution has helped to keep us all together – one billion plus – perhaps disgruntled but united somehow – as one nation.

It is on the second part of the theme that I propose to address you this afternoon, on ‘Ending Discrimination’. Ending discrimination is more easily proclaimed than achieved and this is because we have not been able to completely shed our dark historical past.

Let us go back two millennia when rank discrimination was practised in this sub-continent – discrimination mandated by social custom and practice. Outnumbered by a subject people whom they considered inferior, the Vedic Aryans, who had invaded Hindustan, sought to preserve their own racial identity: they didn’t quite succeed but it was this that started Mother India’s long, sad tryst with inequality.

The first caste division was not by status but by colour. It divided the fair Aryans with long noses and the dark Dravidians with broad noses. As Will Durant says1 : in his Story of Civilisation: ‘At first it was merely the marriage regulation of an endogamous group’. That was how it all began. But over time, the so-called ‘marriage regulation’ developed into a stratification of society, between the ‘pure’ and ‘impure’, with a wide chasm between them.

Ending discrimination

is more easily proclaimed than

achieved and this is because

we have not been able to

completely shed our dark

historical past.

2

1 Will Durant, Story of Civilization, vol. I, p.398. The early Hindu word for caste was varna (colour). The Portuguese later translated it as casta, from the Latin castus: pure.

Below the Brahmins and Kshatriyas were the Vaishyas – farmers and traders. These three castes (or varnas) were regarded as twice-born, the second birth (or regeneration) consisting in the study of the Vedas and in the performance of sacraments. The twice-born status was denied to the fourth varna, the Shudras – or the working class – who made up the overwhelming majority of the population. Over the years, a fifth category long unrecognized in theory, the ‘outcastes’, emerged. They were the unconverted native tribes, captives of war, and men reduced to slavery as punishment.

The Shudras and the group of the casteless formed the nucleus of what has become – and many of whose unfortunate descendents continue to remain – the world’s largest minority. They were labelled ‘untouchables’, and although we proudly abolished untouchability when we adopted the Constitution of India (Article 17), paradoxically, the same Constitution recognized the group under a different name: ‘Scheduled Castes and Tribes’.

At first it was expected that the Scheduled Castes and Scheduled Tribes would be absorbed into the rest of Indian society within a decade – but this wish was never fulfilled. The list of Scheduled Castes and Scheduled Tribes has only grown longer, and keeps getting perpetuated by constitutional amendment every 10 years.

Rank discrimination without law, practised for centuries, was replaced, but for only a brief moment of historical time – nine hundred years to be precise – by Buddhism, a way of life that abhors the practice of discrimination. This new faith rejected the predetermination of status by birth and the hierarchical ranking of castes. Buddhism became the religion of the kings who ruled India for almost a millennium. Embraced by the Emperor Ashoka (273-232 B.C.), it gained a foothold in the sub-continent and posed a real threat to Hinduism. The way of life propagated by the Buddha did not countenance discrimination. After generations of discriminatory practices without law, Indian society slowly became more egalitarian through the ways of living preached by Gautama, the Buddha.

Rank discrimination without law, practised for centuries, was replaced, but for only a brief moment of historical time– nine hundred years to be precise– by Buddhism, a way of life that abhors the practice of discrimination.

3

However, under the influence of Hindu pantheistic beliefs, Buddhism itself became riddled with schisms and sects over time. Thousands of years of Hindu culture had proved too much for this ascetic, non-theistic, non-discriminatory faith. The Buddha was slowly absorbed into the Hindu pantheon as one of the incarnations of the God Vishnu.2 And it was during the reign of the last Buddhist King, Harshvardhan (A.D. 606-648), – that the great casteless religion that refused to countenance discrimination was stamped out in the land of its birth. The oriental scholar, Sir Charles Eliot, described this tragic transformation in a memorable phrase: ‘Brahmins killed Buddhism by a fraternal embrace.’ 3

The Hinduism that replaced Buddhism was an amalgam of faiths and ceremonies that had four common characteristics. First, it recognized the caste system and reaffirmed the leadership of the Brahmins; second, it accepted the law of karma (destiny) and the transmigration of souls; third, it replaced with new gods the deities of the Vedas. And fourth, caste came back into its own and with it the antithesis of ‘pure’ versus ‘impure’. The ‘untouchables’ – and Hindu outcastes – grew in number, particularly with the introduction of new occupations.

By the latter part of the Middle Ages, an almost indefinite number of occupational castes (in the thousands) were added to the traditional division of society into four

main castes (Brahmins, Kshatriyas, Vaishyas and Shudras). The criteria for the hierarchical status of high or low multiplied a thousand-fold with new occupations. For each new activity, it was the Brahmins who determined which aspects were ‘low’ or ‘impure’ and to be discriminated against, and the number of outcastes increased even further.

Mughal rule (between AD 1526 and 1707) brought some changes in society, but made no difference to the traditional division of labour organized through specialized groups ranked in hierarchical order. Caste and untouchability continued to flourish.

It was only during the

British conquest of India that

attempts were made towards emancipation

from the scourge of discrimination.

4

2 Brahmins even adopted Buddhist practices as their own; under pressure of the ethics of renunciation preached by Buddhism (and Jainism), a majority of the Brahmins changed to a vegetarian diet and ‘renounced’ all forms of meat. Since then they have regarded caste Brahmins who ate meat as impure. The caste system conceptualized ‘purity’. (See Dumont, Homo Hierarchicus, pp. 55-56).

3 Sir Charles Eliot, Hinduism and Buddhism.

It was only during the British conquest of India that attempts were made towards emancipation from the scourge of discrimination. The new economic order brought in by the conquerors from the West affected the design of a social system that had retained a remarkable continuity for centuries. With education in English schools and colleges, more people became acquainted with modern European and American history, and with their concepts of liberty, equality and fraternity.

The beneficiaries of the British system of education, mainly the children of high-caste Hindu families, grew up questioning the principles on which their society was organized. At first a few cosmetic changes were introduced: by laws such as the Caste Disabilities Removal Act of 1850. But this law was a dead letter, because social consciousness had not yet been aroused. Then, at the beginning of the last century, Gandhiji introduced into the independence movement a plea for a better deal for the outcastes. He lived among them and described them as ‘Harijans’ (children of God). In the liberal spirit of the age, the name stuck. It brought an increasing awareness to the Indian mind of the shame of untouchability. Among the more enlightened of the higher castes, a movement started to do something to relieve the lot of the depressed classes. To uplift them was regarded as an act of compassion, a voluntary righting of the wrongs of many years.

Then – as the benefits of Western-style education permeated downward – the bright young men in the society of ‘outcastes’ also spearheaded a new movement, the Dalit movement, which was based not on compassion but on right. Very much in evidence today, the leader of this movement – and its most eloquent member – was Dr. B.R. Ambedkar, a Harijan; along with Pandit Jawaharlal Nehru, he was one of the principal architects of the Constitution of India.

This, then, was the legacy that we inherited with independence. Aware of the generations of accumulated and accentuated group inequalities, the Constituent Assembly deliberately adopted a constitutional policy of preferential treatment for the historically disadvantaged peoples of India.

The Constitution of India, 1950, as enacted, contained 395 Articles (with a Bill of Rights) and an Appendix of eight Schedules, occupying 251 pages in the Official Edition. Sir Ivor Jennings, constitutional historian of the Commonwealth, had dismissively described our Constitution in six short words: ‘too long, too detailed, too rigid’.

At the beginning

of the last

century, Gandhiji

introduced into

the independence

movement a plea

for a better deal

for the outcastes.

5

A couple of years ago, when I mentioned this gibe to my distinguished friend Desmond Fernando of Sri Lanka, he told me that the same Ivor Jennings had fashioned for the island of Ceylon (as that nation was then called) its first written Constitution – the Soulbury Constitution. Yet, despite all precautions taken in drafting that Constitution, it lasted only seven years!

Constitutions do not survive because of their brevity; and they do not last despite their length and prolixity. It is only the spirit of the people that keeps a written constitution from falling apart.

The length of the Constitution of India is due not merely to the size of the country, but to the problems of accommodating in a federal parliamentary system, divergent points of views of representatives of peoples speaking different languages and observing different faiths, striving at the same time to transform a rigid hierarchical social order into an egalitarian society.

This is because religion in India means not just the profession of faith: it also encompasses places of worship (temples, mosques, gurudwaras, churches, synagogues); includes

idols, deities and offerings to them, bathing places, graves, tombs, properties attached to and owned by religious institutions. All this – faith, worship, ritual and the secular activities of religious groups – had to be provided for in the Constitution (in the Chapter on Fundamental Rights) – so that they were beyond the reach of interference by the executive or by fleeting majorities in Parliament and State Assemblies.

It is no surprise then that in this vast land of conflicting ideas and ideals, our basic document of governance is replete with incongruities:

Constitutions do not survive

because of their brevity; and they

do not last despite their length and

prolixity. It is only the spirit of

the people that keeps a written

constitution from falling apart.

6

4 The six major religions listed in the latest census (2001) are Hindus, 81.8% of the population; Muslims, 12.12%; Christians, 2.34%; Sikhs, 1.8%; Buddhists, 0.71%; and Jains, 0.45%. Those having no religion or no religion stated – constitute only 0.01% of the population. The census lists 183 ‘other religions and persuasions’ (from Abutani, a small religious cult in the north-eastern state of Arunachal Pradesh, to one of the world’s oldest religions, Zoroastrianism, whose adherents in India, the Parsis, number only 71,630). Since the 1971 census the number of Hindus has increased 24.2%, of Muslims 30.6%, of Christians 16.8%, of Sikhs 26.2%, of Budhists 22.5%, and of Jains 23.7%.

• First, in a professedly secular republic, the Chapter on Fundamental Rights has recognized and protected India’s six main religions and more than 200 ‘religious persuasions’. 4

• Second, the Right to Equality is guaranteed (Article 14) and the State is prohibited from discriminating against any citizen on

grounds of race, religion, caste, or place of birth (Article 15), and yet discrimination in favour of socially and educationally backward classes is encouraged (Article 16).

• The textual juxtaposition of guarantees of equality and the authorization of compensatory discrimination reflects the deep conflict between divergent views on equality, and varied notions as to the scope of protective discrimination.

• Third, adopting adult suffrage as the basis for periodic elections to Parliament and to State Assemblies, and abolishing special electoral rolls based on race, religion, caste, or sex, the Constitution has (at the same time) also provided for reservations of seats in the House of the People and in the Legislative Assembly of every State for the Scheduled Castes and Scheduled Tribes (for centuries, the outcastes of Hindu society). Initially, it did this for a limited period of 10 years, and this has been extended almost interminably, one decade at a time.

Despite these seemingly disparate and contradictory provisions necessitated by social, historical and political considerations, there is one overriding concept discernible in our Basic Law – an abiding concern for the unity of India.

The paradox of the system of reservations or quotas is that it has engendered a spirit of self-denigration among the people. Nowhere else in the world do castes, classes or communities queue up for the sake of gaining ‘backward’ status. Nowhere else in the world is there competition to assert backwardness and to claim ‘we are more backward than you’. This is an unhappy and disquieting situation, but it is stark reality.

Some judges have made a fervent plea for the recognition of poverty as a true criterion for ‘backwardness’. They have said that if a survey was made about the benefits of preferred treatment among the undefined economically and socially backward classes, ‘it would unmistakably show that the benefits of reservations are snatched away by the top creamy layer of the backward castes’.

Thus, despite the provisions of our Constitution – which is the supreme law – we have not yet resolved the complexities that lie buried in the great, but elusive, doctrine of equality.

Despite the provisions of our Constitution -- which is the supreme law -- we have not yet resolved the complexities that lie buried in the great but elusive doctrine of equality.

7

To what extent should the claim based on merit and on the fundamental right of equality be ignored? How far does the Constitution, truly interpreted, direct us to go? How soon are we to atone for the oppression of centuries? Should we go on equalizing downward? And for how long?5 These questions surface periodically. The fact is that the under-representation of the underprivileged in public employment still remains highly disproportionate. It was Ralph Bunche, a former Under-Secretary-General at the UN, who once said: ‘Inalienable rights cannot be enjoyed posthumously’.

Still, we cannot ignore the groundswell of public opinion: an increasing resistance to the view that the sins of generations of forefathers in the higher castes should be expiated here and now – in a couple of generations. Even the Hindu law’s theory of ‘pious obligation’ requires the Hindu son to meet the financial obligations only of his father, not of the forebears of his father!

Our judges, who have the final word in all constitutional matters, have not been too helpful. They have interpreted the compensatory discrimination clauses differently at different times. On occasions, they have prodded and energized governments to live up to the constitutional commitment to alleviate the lot of the downtrodden, but the ground rules have kept fluctuating.

I believe that if the collective of judges make up their collective minds, it would help. There are some encouraging signs on the horizon. In a recent case on the interpretation of the newly-added Article 15(5) in our Constitution (added by the Constitution 90th Amendment Act),6 some of us had challenged its validity before a Constitution Bench of five judges of the Supreme Court on the ground that instead of achieving the goal of a casteless society as was envisioned by the framers, India would soon be converted into a caste-ridden society. Alas, only last year, four out of a Bench of five justices rejected the argument. But the fifth judge – the lone dissenter – Justice Dalveer Bhandari, had this to say:

If caste-based quotas in

education are to stay, they should adhere to a basic

tenet of secularism: they should not

take caste into account.

8

5 In fact, at least two judges (out of five) on the Constitution Bench of the Supreme Court in Vasant Kumar v. State of Karnataka (decided on May 8, 1985) were in favour of a reservations policy having a time limit. ‘Otherwise’, as one of them said, ‘concessions tend to become vested interests.’6 ‘15(5) Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private education institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.’

If caste-based quotas in education are to stay, they should adhere to a basic tenet of secularism: they should not take caste into account. Instead, exclusively economic criteria should be used. For a period of ten years, other factors such as income, occupation and property holdings, etc. including caste, may be taken into consideration but, thereafter, only economic criteria should prevail…. I, nevertheless, believe that caste matters and will continue to matter as long as we divide society along caste lines. Caste-based discrimination remains. Violence between castes occurs. Caste politics rages

on….7

In fact, the same judge very recently gave vent to his vision of a casteless society.

Just this morning it was reported in the newspaper that a Bench of two judges of the Supreme Court (the same Justice Bhandari sitting along with Justice Patnaik) sentenced five persons to life imprisonment for brutally killing seven Dalits in a village in Uttar Pradesh. The judges did not miss the opportunity of expressing strong views against the caste system. I quote:

Unfortunately, the centuries-old Indian caste system still takes its toll from time to time. This case unfolds the worst kind of atrocities committed by a so-called upper

caste (Kashtriyas or Thakurs) against the so-called lower castes in a civilized country.

Amid all the controversy, one thing is certain: as long as poverty continues to stalk the land and gross disparities between the rich and poor remain, the ideal of an egalitarian society envisaged in our basic document of governance will remain a pipe-dream. Whatever the nation’s karma, the founding fathers cannot be faulted for a lack of idealism, nor can Providence. It is not in our stars but in ourselves that we are thus. It is not because of our Constitution but despite its provisions that we have failed to achieve what were naively assumed (in the year 1950) to be achievable goals.

We have abolished untouchability and outlawed backwardness in our basic document of governance. Yet, alas, many of us – far too many of us – have not eliminated it from our hearts.

As long as poverty

continues to stalk

the land and

gross disparities

between the rich

and poor remain,

the ideal of an

egalitarian society

envisaged in our

basic document

of governance will

remain a pipe-

dream.

9

7 2008 (6) SCC 1 – Ashok Kumar Thakur vs. UOI para 605 page 699.

The remedy to effectively counter discrimination then is not by law, but in attitudes. Our attitudes must change. There must be more understanding, more compassion. We must all make a conscious effort in our individual lives to help reduce the wide disparities between the advantaged and disadvantaged.

That great heroine of Indian society, Mother Teresa, was a person distinctively Indian, though not born in India. When she was conferred the Nobel Peace Price in 1979, she mentioned in her acceptance speech at Oslo (in February, 1980) that the right to live was the most universally fundamental of all Human Rights. I heard the radio broadcast of this speech and cannot forget it. Mother Teresa recalled an incident in Calcutta that showed how anxious were the poorest and the lowliest to protect the Right to Life, not for themselves alone, but also for others. She spoke simply and with compassion. Her acceptance speech was later published and I quote from her speech:

I had the most extraordinary experience with a Hindu family who had eight children. A gentleman came to our house and said: ‘Mother Teresa, there is a family with eight children: they have not eaten for so long; do something.’ So I took some rice and went there immediately. And I saw the children – their eyes shining with hunger. I don’t know if you have ever seen hunger. But I have seen it very often. And she took the rice, she divided the rice, leaving some for her family and then she went out with the rest. When she came back I asked her: ‘Where did you go, what did you do?’ And she gave me a very simple answer. ‘They are hungry also.’ What struck me most was that she knew – and who are ‘they’? A

Muslim family – and she knew.

I didn’t bring more rice that evening because I wanted them to enjoy

the joy of sharing.

Mother Teresa – like Mahatma Gandhi before her – emphasized the need not just to universalize human rights but also to universalize respect for them.

Whilst old forms of discrimination still survive – new forms of discrimination – discrimination despite law – keep appearing. Let me give you an example. Under our Constitution – Article 19(1)(d) and 19(1)(e) – all citizens have a fundamental right to move freely throughout

Mother Teresa– like Mahatma

Gandhi before her – emphasized the need not just

to universalize human rights

but also to universalize

respect for them.

10

the territory of India and to settle in any part of the territory of India. Permanent restrictions on such freedom of movement are suspect – and there are a whole range of judicial decisions that establish this. But politics trumps law, even constitutional law, and this is exemplified by the so-called sons-of-the-soil theory – Maharashtra only for the Maharashtrians, Punjab only for the Punjabis.

But in this great land of ours, a ‘land of a million mutinies’, as V.S. Naipaul called it, we cannot truthfully say Bihar only for the Biharis, because what would Maharashtra and Punjab and the rest of the country do without the hardworking Biharis? This new ogre of discrimination that has raised its ugly head needs to be eradicated – but this can only be done with astute political will, and by firmness in judicial diktat. Political parties, which have this motto, must be disenfranchised by the Election Commission. Unfortunately, popular governments hate to lose votes and this is the great dilemma of modern Indian democracy. Courts then must give the go-ahead but, unfortunately, too few judges think this way.

Change in attitudes will not then take place by laws and edicts, but by meaningful education – education that alters settled habits of the mind. We will have to go through many more difficulties before realization dawns on the mass of the people of India: because when we gave ourselves independence we omitted to educate ourselves to live up to the ideals of an independent India. The ‘sons of the soil’ theory is not good for India as a nation. The strength of this great country lies in its vastness and its immense disparities: break it up into little bits and we will lapse (God forbid) into the dying days of the Mughal Empire.

Ending discrimination is a very important clarion call for this country, but without tolerance and a spirit of accommodation we simply cannot end discrimination. Let me give you an example.

Article 25 of our Constitution guarantees – subject to public order, morality and health – that all persons be equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. But what is the use of this Article if we do not observe it in its true spirit?

Ending discrimination is a very important clarion call for this country, but without tolerance and a spirit of accommodation we simply cannot end discrimination.

11

I recall the case of a minuscule sect in this country; they number a few thousands – they are called Jehovah’s Witnesses. They live mostly in Kerala. They are Christians but Christians with a particular belief not shared by other Christians. Their belief revolves around three short passages in the Bible – in the Book of Exodus, which they believe are the words of God. This is what an angry God says in the fiery Old Testament:

20:3 Thou shalt have no other gods before me.

20:4 Thou shalt not make unto thee any graven image, or any likeness of any

thing that is in heaven above, or that is in the earth beneath, or that is in the

water under the earth.

20:5 Thou shalt not bow down thyself to them, nor serve them……

Jehovah’s Witnesses take all this literally – they will not bow down to graven images, they will not salute the national flag, they will not sing the national anthem. In Nazi Germany, they gladly went to the concentration camps for refusing to raise their hands in the Nazi salute because of God’s word in the Old Testament.

In Kerala, till the year 1985, children of this faith regularly attended public schools. In one such school, ‘Jana Gana Mana’ was regularly sung during daily assembly. Children belonging to this particular Christian sect stood at attention but refused to sing, not because they were opposed to the words or thoughts expressed in the national anthem, but because of the tenets of their religious faith – and no one considered this disrespectful. Besides, there was no law compelling anyone to sing, or to play, the national anthem.

However, in July 1985, a member of the Legislative Assembly of Kerala, on a visit to the school, noticed that three children (whose parents were Jehovah’s Witnesses) did not sing the national anthem at the morning assembly. He considered this unpatriotic and raised a question in the Kerala Assembly. A Commission of Inquiry

was appointed. It reported that the children were law-abiding, showed no disrespect to the national anthem and stood in respectful silence when it was sung, but they did not sing. On the instructions of the Inspector of Schools, the three children were expelled.

A writ petition was filed in the High Court of Kerala seeking a writ of prohibition against the authorities preventing the children from

There was no law compelling

anyone to sing, or to play, the

national anthem.

12

attending the school. The High Court rejected the plea. I was consulted. We decided to file an appeal to the Supreme Court of India invoking Article 25. The appeal was successful. The Supreme Court of India reversed the verdict of the High Court. The Supreme Court held that the children did not join the singing of the national anthem in the morning assembly because of their conscientiously-held religious faith, which did not permit them to join in any rituals, except prayers to Jehovah.

The Court noted:

Jehovah’s Witnesses wherever they are, do hold religious beliefs which may appear strange, even bizarre to us, but the sincerity of their beliefs is beyond question.

The Court held that the expulsion violated the fundamental right of ‘freedom of conscience’ guaranteed in Article 25(1) of the Constitution of India. At the end of their judgment, the justices encapsulated the consistent attitude of the Highest Court in matters of genuine religious faith, in words that were eloquent and need to be remembered:

We only wish to add: (said the Judges) that our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance; let us not

dilute it.

The justices had directed the authorities to readmit the children to the school and permit them to pursue their studies without insisting on their singing in the morning assembly. But they were not admitted. Tolerance in the face of unpatriotic behaviour? Never!

Even the learned judge, who rendered the judgment of the Court (Justice Chinnappa Reddy who, incidentally, was an atheist) was castigated by a high-ranking leader of the then ruling party as having forfeited his right to be called ‘either an Indian or a judge! When this party leader was hauled up before a Bench consisting of three colleagues of Justice Chinnappa Reddy they refused to issue even a notice of contempt, on the specious ground that the Attorney General had not given his consent to the initiation of contempt proceedings!

Our tradition

teaches tolerance;

our philosophy

preaches tolerance;

our Constitution

practices tolerance;

let us not dilute it.

13

In short, the judgment, though correct in law and enforceable, was simply unacceptable to a large majority of what was then characterized as ‘right thinking people’. Despite the verdict of the highest court in the land, the children would not be admitted to any school in Kerala. They are still not admitted: they have to get their tuition at home.

Jehovah’s Witnesses had won their constitutional case in Court, but lost their constitutional right, which the decision in the case had affirmed!

Discrimination against this small miniscule sect of Christians continues: despite law.

But, then, hypocrisy also flourishes in our land. This is the other part of the story. It just so happened that a few months after this judgment in the Jehovah’s Witnesses’ case important members of a prominent political party in South India had the audacity to burn our national flag.

Now, burning the flag is an offence under The Prevention of Insults to National Honour Act, 1971, and the Magistrate rightly sentenced the miscreants to the maximum prescribed term of imprisonment – six months. But did they go to jail? No. The members belonged to an influential political party – they had clout. On instructions of the Centre, the Governor of Madras, in exercise of his constitutional powers of pardon, pardoned them. None of them went to jail. There was no uproar; no one said a word.

All this only reflects that in a pluralist society no matter what the law or the Constitution says or how it is interpreted, it is only ‘as good as it works’.

I give you another instance.

Formal equality for women is enshrined by law in our Constitution. As a matter of fact Article 15(3) of the Constitution of India, 1950 expressly recognizes that women and children need special protection and it is provided that nothing contained in the article [Article 15(3)] relating to prohibition of discrimination on grounds of religion, race, caste, sex or place of birth – nothing of that ‘shall prevent the State from making any special provision for women and children’.

For the first forty

years of our

Constitution no

married woman

was entitled as

of right to be

appointed to the

Indian Foreign

Service.

14

Yet, despite this law, for the first forty years of our Constitution no married woman was entitled as of right to be appointed to the Indian Foreign Service. It was so provided in rules of employment framed by government. The women required special written permission of the government and could be made to resign if the government was satisfied that ‘her family and domestic commitments were likely to come in the way of the efficient discharge of her duties’. Along came one Ms. Muthamma, a brilliant member of the IFS.

She came with the complaint that, as a result of the Service Rules, she had been denied promotion to Grade-I in the Indian Foreign Service, a grade that entitled her to be appointed ambassador. Fortunately, the presiding judge in the Court was Justice Krishna Iyer, known for his liberal views. He said there was ‘transparent discrimination’ against women in the rules.

He expressed judicial indignation. He characterized the male bureaucrat’s attitude as ‘die-hard allergy to gender parity’. These may seem harsh words but, as Lord Keynes used to say: ‘Words have sometimes to be harsh since they represent an assault on the thoughts of the unthinking’.

So Ms. Muthamma ultimately got her promotion and distinguished herself as India’s ambassador, serving in several countries abroad.

Male attitudes in India have been for too long, too paternalistic, and out of touch with realities. They are neither in tune with fast-changing social conditions and values, nor with the changing attitudes of women towards paternalistic laws. Such attitudes are best exemplified by the stand taken (by the male section of society) on the continued need for retaining Section 497 in our Penal Code of the year 1860 – Lord Macaulay’s Code. Under this section, adultery is a criminal offence only when committed by a man – never by a woman.

Ordinarily, under our criminal law, for all other offences the woman would be punished as an abettor, but Section 497 expressly forbids this in the case of adultery. It says the wife shall not be punishable as an abettor. This is nothing but ‘Protective Legislation’ say the men. But the modern woman differs. She says that this is ‘paternalistic chattel law’.

Male attitudes in

India have been

for too long, too

paternalistic, and

out of touch with

realities.

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In 1985, it was a woman who challenged the constitutionality of Section 497 of the I.P.C. Her paramour had been charged by her own husband for the offence of adultery8: punishable under Section 497 of IPC. To save her lover, the wife filed a petition for quashing the criminal complaint on the ground that the provision that created the offence of adultery was unconstitutional. And she briefed a senior lady lawyer, she forcefully contended that Section 497 was a vintage provision enacted in an era of ‘romantic paternalism’, and was out of touch with modern times.

Was it rational, she asked, that the husband can prosecute for adultery but that, for instance, an innocent wife cannot prosecute the woman with whom her husband commits adultery? Was it rational, she said, that an innocent wife could not prosecute her own husband for adultery with another woman? Here was a case of rank discrimination by law Section 497 IPC – that remained on the statute book despite a superior law – constitutional law (Article 14). It was an irrational and constitutionally unsupportable classification that was being made between man and woman.

The lady lawyer forcefully asserted that Section 497 was a flagrant instance of gender discrimination. The judges – all male – accepted that her contentions did have what they described as ‘an emotive appeal’, but they went on to say that they found it had no valid legal basis to rest upon!

After noticing that the only female member of the Law Commission of India (Mrs. Anna Chandi – India’s first woman judge) had voted for deleting Section 497 from the Indian Penal Code on the ground that it was not in tune with ‘our present-day notions of women’s status in marriage’, they paid no further attention – after all, Mrs. Chandi had been out-voted by other members of the Law Commission who voted for retaining Section 497 in the same form (and they were all male!). The Court held that Section 497 was not invalid as violating the Equality Clause of the Constitution.

Then, as if to atone for their verdict, the judges granted the prayer to quash the husband’s complaint of adultery against his wife’s lover on the questionable ground that no useful purpose would be served by inquiring

Was it rational, she asked, that

the husband can prosecute for

adultery but that, for instance, an

innocent wife cannot prosecute

the woman with whom

her husband commits adultery?

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8 Smt. Sowmithri Vishnu vs. Union of India AIR 1985 S.C. 1618.

into allegations of adulterous behaviour, since the marriage had already ended in a decree of divorce. In effect, the Court granted the relief whilst denying the plea of gender discrimination!

All this should convince us all of two things: first, that we need more women judges in the Highest Court; and second, that men (including male judges) need to be educated – if not in law generally, at least certainly in the practice of the law as to gender bias. There is much to learn, for instance, from developing modern international law.

To end discrimination we certainly need to be educated – but we must get rid of old ideas and prejudices, which is illustrated by a story with which I will end this lecture.

It is a charming story of old about a Master in Zen Buddhism.9 The Master had invited one of his students to his home for afternoon tea. Almost everything in Zen Buddhism is allegorical. They talked for a while and then the time came for tea. The teacher poured the brew into the student’s cup. Even after the cup was full he continued to pour. The cup overflowed and the tea spilled on to the floor.

Finally, the student said: ‘Master, Master! You must stop pouring. The tea is overflowing from the cup.’

All this should

convince us all of

two things: first,

that we need more

women judges in

the Highest Court;

and second, that

men (including

male judges) need

to be educated.

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9 The origins of Zen Buddhism are ascribed to the Flower Sermon, the earliest source for which comes from the 14th century. It is said that Gautama Buddha gathered his disciples one day for a dharma talk. When they gathered together, the Buddha was completely silent and some speculated that perhaps the Buddha was tired or ill. The Buddha silently held up a flower and several of his disciples tried to interpret what this meant, though none of them were correct. One of the Buddha’s disciples, Mahakayapa, silently gazed at the flower and is said to have gained a special insight directly from the Buddha’s mind, beyond words. Mahakayapa somehow understood the true inexpressible meaning of the flower, smiled and the Buddha then acknowledged Mahakayapa insight by saying the following:

I possess the true Dharma eye, the marvellous mind of Nirvana, the true form of the formless, the subtle dharma gate that does not rest on words or letters but is a special transmission outside of the scriptures. This I entrust to Mahakayapa.

Thus, through Zen there developed a way which concentrated on direct experience rather than on rational creeds or revealed scriptures. (http://en.wikipedia.org/wiki/Zen)

The teacher replied: ‘That is very observant of you. And the same is true with you. It you are to receive any of my teachings you must first empty out what you have in your mental cup.’

Emptying – and then filling the mental cup – that, in the end, is the way to end discrimination – for laws sometimes help, but not too much.

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Fali S. NarimanSenior Advocate, Supreme Court of IndiaPresident, Bar Association of India

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The India International Centre was founded with a vision for India, and its place in the world: to initiate dialogue in a new climate of amity, understanding and the sharing of human values. It is a non-government institution, designed, in the words of its founder president, Dr. C.D. Deshmukh, to be a place where various currents of intellectual, political and economic thought could meet freely. ‘In its objectives, the Centre declares its purpose as being that of society to ’promote understanding and amity between the different communities of the world by undertaking or supporting the study of their past and present cultures, by disseminating or exchanging knowledge thereof, and by providing such other facilities as would lead to their universal appreciation.’