Through a few landmark judgments, the Supreme Court has in the past few weeks demonstrated the transformative power of the Constitution. Evidently some of these verdicts have shocked the sensibilities of different categories of citizens. They have their reasons to feel outraged. Adultery is no longer a criminal offence and the woman is no longer the sole culprit. Homosexuality is not a crime in India anymore. Entrenched ideas and stereotypical attitudes have been shaken.
It needs to be remembered that the apex court has neither legalised nor justified adultery as some of the innovative interpreters on social media would have us believe. These judgments have only put to test certain fossilised provisions in the Indian Penal Code against the ethos and values enshrined in the Constitution. The right of the individual to make choices is the essential substratum on which these interpretations are based. Our Constitution promises social, economic and political justice, and liberty of thought, expression and faith. Besides, it assures the dignity of the individual and equality of status and opportunity.
The apex court has been an arbiter of individual freedom and dignity and has brought about several corrective measures wherever these principles were being overlooked. Thus in the Vishaka case, it issued clear and binding guidelines to protect women from harassment in the workplace which have today become the accepted norm. The hitherto deprived sections have been emboldened with a new sense of right and the need to correct injustice of yesteryears. The #MeToo movement, which is already shaking up misguided male attitudes, too has been nourished by this new sense of justice and the right of the woman to preserve her dignity and freedom. All these have generated a new euphoria that celebrates the freedom and dignity of the individual, a paramount constitutional value.
Though the Constitution has all these values embedded in it, it is the task of the judiciary to discover these latent strengths and release a transformational energy. Thus the Constitution, through timely judicial interpretations, becomes the basis for social transformation. While the judiciary has been discharging this function meticulously, can the same be said about the legislature and the executive? Are not the rights of the individual, repeatedly underlined by judicial pronouncements, undermined by executive apathy and legislative reticence? It is not being insinuated that our legislatures have not enacted progressive legislations. They have. But when it comes to protecting the rights of the individual against bureaucratic rigidities, the inherent human values of the Constitution have not been adequately reflected either in our laws, programmes or their implementation. Government programmes are keen to define clearly the responsibilities of the citizens but seldom do they bind the executive to timely delivery or answerability. The duties of the citizens are highlighted but not their rights. The privileges of the executive are always protected while the laws and rules are often silent about accountability.
Thus the last date for submitting an application for welfare pension is stipulated with the highlighted admonition that ‘late applications will be summarily rejected’. But when the concerned officer shall take a final decision on the application is not clear. Despite the Right to Information Act and the Right to Service Act, the plight of the citizen and the intimidating tone of administration are still the same. It is the duty of a person applying for a building plan approval to submit the applications with all stipulated enclosures. But even if it is proper and complete, the final approval has to cross a number of hurdles and uncertainties that can frustrate even an applicant of above average patience. Systems and practices that thrive in corruption are outright violations and are against the right and dignity of the individual.
Ordinary citizens, who are bounced from table to table in government offices for getting what is rightfully theirs, often look upon their entitlements as a great favour. Even the terminologies like ‘submitting an application’ and the general tone of government communications betray a patron-client relationship—incongruous to the egalitarian values of the Constitution. There is an ongoing drama of entitlements being dispensed as gratis and the dignity of the individual becoming a myth.
Modern India lives in different centuries. Though it is the same Constitution that protects all citizens, the fact remains that the urban educated India gets the benefit of the expanding arm of progressive transformation. While this empowerment is valuable and necessary, the continuing tragedy of exclusion of the less alert and less educated Indians from their right to survival takes away the sheen of the modern India. Human rights are not an abstract idea but an assurance given to every citizen of this country. Human rights are violated when a poor patient is denied treatment, when an innocent person is wrongly arrested or incarcerated, when entitlements are delayed or denied either due to arrogance or corrupt motives. Constitutional rights are trampled upon in a million situations in public offices across the country.
In legislations and legal interpretations regarding gender equity, LGBT rights and several such positions, we may be on par with developed Western societies. That augurs well for us in trying to shake off the fetters of a patriarchal society. But a society cannot be progressive only in select domains. The realisation of the rights of the individual should permeate all walks of life. We cannot have ultra-progressive stances in certain areas while allowing feudal and exploitative arrangements and systems in certain other areas to continue. Today’s India is a bundle of contradictions with large patches of darkness to be ashamed of coexisting with spots of light to be proud of. That darkness will remain with us as long as we as a nation are not acutely impatient about the denial of rights of the powerless and critically intolerant about the misplaced privileges of the powerful.
K Jayakumar
Former Chief Secretary to Government of Kerala and former Vice Chancellor of Malayalam University
Email: k.jayakumar123@gmail.com