Experts React to Aadhaar, Adultery, Sec 377 & Sabarimala Judgments

What do legal experts have to say about the four verdicts that came in the last weeks of CJI Dipak Misra’s tenure?

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The Supreme Court has had a busy few weeks delivering several landmark judgments. As the Chief Justice of India Dipak Misra prepares to retire on 2 October, we’re taking a look at some of the important judgments and what impact, if any, they’ll have on the future of Indian law and society.

We’ll be taking a look at the four MAJOR judgments laid down by the Supreme Court recently, that is, the Aadhaar verdict, the decriminalisation of gay sex by reading down Section 377 of the IPC, the verdict on adultery (i.e., the constitutional validity of Section 497), and finally, the judgment that lifted the ban on women of menstruating age from entering the Sabarimala temple.

The Quint spoke to legal experts who have worked closely on one or more of these matters, and asked them to break down the significance of these judgments for you.

On the matter of the four judgments, this is what Supreme Court lawyer and senior advocate Sajjan Poovayya told The Quint:

The timing of these judgments were expected because there was a chief justice remitting office. The verdicts on 377 and adultery were both writings on the wall after the landmark privacy judgment. Aadhaar was a little bit of a disappointment. We were expecting the court to go the whole hog with the Aadhaar judgment and declare it unconstitutional. 

Sajjan Poovayya, Senior Advocate and Supreme Court Lawyer

Now let’s dive into the MOST recent verdict, that is, the removal of all restrictions imposed on the entry of women of menstruating age into the Sabarimala temple. Aditi Dani, one of the lawyers representing one of the respondents who opposed the entry of women of menstruating age into the Sabarimala temple, had this to say.

The verdicts on 377, adultery, and Sabarimala point to an increasingly activist approach of the court. Where it’ll no longer be afraid to step in and protect the rights of marginalised or oppressed communities. Despite being a lawyer on the opposite side of the trial, I believe that the Sabarimala judgment is a good verdict. It’ll have an impact on other cases and other laws as well. For example, it could affect other religious practices, as well including polygamy and Female Genital Mutilation. 

Aditi Dani, Lawyer

Sajjan Poovayya adds, “On Sabarimala, I’m tilting towards the dissent opinion [Indu Malhotra’s dissenting judgment], because I think it’s a delicate balance between religious freedom rights and equality rights. The law is meant to cater to the people of this country, and not to an abstract concept, and given the socio-economic makeup of this country, I think the verdict will raise more questions than answers.”

Clearly, the impact of these judgments goes well beyond their immediate effect, but the many ways in which this impact will be felt is something that will become clearer with time, and as parts of the judgment are read in the context of different cases. But the one thing that is clear, is that they all address important questions about fundamental rights.

Former legal adviser to the ministry of tribal affairs, Shomona Khanna, who was a counsel in the Section 377 trial in the high court, and who has worked closely with tribal and marginalised communities, had this to say about the verdicts:

For me, as a person who works closely with marginalised communities such as tribals and Dalits, there are many principles emerging from these judgments. I’ll be interested in knowing how they impact these communities. All these concepts will now impact other communities which are marginalised.

Shomona Khanna, Former Legal Advisor, Ministry of Tribal Affairs

While some legal and policy experts have said the verdicts delivered in the weeks before Chief Justice Misra’s retirement would have an impact beyond their immediate subject matter, others have said the dissenting parts of the verdicts, i.e., Justice Chandrachud’s dissent in the Aadhaar verdict, and Justice indu Malhotra’s dissent in the Sabarimala verdict, would play the most important part in guiding the future of Indian law and carving the path that Indian society takes in the coming years.

This is what Prasanna S, an SC advocate who has closely tracked the Aadhaar hearing, had to say:

They went for, what I would call low-hanging fruits, such as Section 377. In general, while the Court has been great with civil rights issues – its majority verdicts in important civil liberties cases and cases in which the government had significant stakes - Aadhaar and Bhima Koregaon arrests - have been hugely disappointing.

Prasanna S, Advocate

The judgments that have come in the last weeks of Dipak Misra’s tenure as Chief Justice of India are ones that will have a long-standing impact, and will continue to affect Indian law and society for years to come.

But exactly how? Will same-sex marriages become legal? Will marital rape be criminalised? Can same-sex couples ADOPT? Will the archaic defamation law finally be struck down?