Women feel let down by Supreme Court judges

The Supreme Court is or should be the bulwark of the citizen who faces any kind of threat to his rights or to his life. Woe betide the citizen in the country where the trust between the judiciary and the citizen has snapped

By Dr Neerunjun Gopee

In any country, the citizen expects the state to guarantee him the free exercise of his rights as enshrined in the constitution. In democracies this is assumed to prevail at all times; in autocracies and dictatorships the question of free exercise of rights may not even exist. However, let’s confine ourselves to democracies, though in them too ground realities may not necessarily conform to the expectations. Perhaps this is a reflection of what the British politician Winston Churchill said about democracy, that it is the least bad of the systems of government. In the past few years, the way politics has been practised has led to the observation by American analysts that democracy is in crisis in their country.

Abortion rights protests across U.S. Pic – Axios

Where the state or other citizens interfere with the rights of a citizen, the latter has only one, final recourse: the justice system. The citizen would like to believe that he can trust the justice system, but in particular its apex represented by the Supreme Court, totally and blindly. The Supreme Court is or should be the bulwark of the citizen who faces any kind of threat to his rights or to his life. Woe betide the citizen in the country where the trust between the judiciary and the citizen has snapped, for he finds himself without protection, without defense.

In two democracies, one deemed to be the oldest (in recent history) and the other the largest, women have felt let down by judges in their respective Supreme Courts. In the US, the Supreme Court overturned a 50-year-old judgement, the famous Roe v/s Wade case, that gave ‘women access to abortion’ as a constitutional right. The most disturbing aspect of this new judgement is that it was almost a foregone conclusion, because earlier in the year there was a leaked document from the Supreme Court that was in line with it. There was an attempt by the Supreme Court to find out the origin of the leak, but nothing was heard afterwards.

Another unsettling element is that the judgement has a political colouration: the majority was obtained because of the presence of judges appointed by the Republican Party, and who adhere to its anti-abortion ideology.

Feeling betrayed, pro-choice women (in favour of medical termination of pregnancy – MTP) with similar-minded stakeholders continue to stage countrywide protests and marches, and have gone to the extent of picketing in front of judges’ house. Pro-life (anti MTP) women too have taken to the streets to confront their rivals, fortunately without any violence – so far.

This setback has unleashed chaos in the already boiling cauldron of access to MTP, with women and associated stakeholders facing major legal and financial hurdles in addition to personal and social problems. Consider the critical situation of the 10-year-old child, flagged a few days ago, who was raped and has tested positive for pregnancy in a state where MTP is illegal. This is the dilemma being faced by social workers handling her case who feel condemned by this ideology-motivated Supreme Court judgement.

Personal opinions instead of unbiased ruling

On the other side of the world is the largest democracy, India, where Indians in growing numbers have come to the support of their ‘sister’ Nupur Sharma whom they feel has been badly treated by two Supreme Court judges, Surya Kant and JB Pardiwala.

In a debate which was made viral on social media, Nupur Sharma was reported to have been provoked into reacting to the derogatory criticisms against her faith by her opponent and quoted from the Islamic scripture (Bukhari’s Hadith) by way of reply, which several scholars and religious persons, including one from Pakistan, have confirmed as being correct. Despite that, and her public apology, there was an outcry against her with threats to her life.

This is just to give the context, but the debate is not our concern here. What is of interest is that after it and the threats to Nupur, FIRs (First Information Reports) were filed against her in several states (8 or 9). Because of the threats to her life and the fact that she would have to travel to different states to be present in Court, she made a plea to the Supreme Court of India to lump the cases together and to allow them to be taken up in only one Court, in New Delhi. There are established procedures in law, as well as precedents where the Supreme Court has allowed such pleas (cited in Drishtikone Newsletter #346).

The two judges, however, instead of considering her plea, went on a tirade against her which is in the public domain, accusing her of being solely and wholly responsible for the many incidents of violence in the country that have taken place, including gruesome beheadings. This has led a cynic to comment that the Wright brothers, who invented the aeroplane at the beginning of the 20th century, are responsible for the 9/11 attacks on the twin towers in New York!

The upshot is that comparable to the protests in the US, there has been a surge of support to Nupur across India, from media outlets to individual activists. Several well-known public intellectuals too have raised their voices against the ‘observations’ of the two judges, among them J. Sai Deepak, a young lawyer who is an expert in the constitution, who has argued that these opinions are extra-constitutional and extra-judicial. Also, Dr Anand Ranganathan, a biomedical scientist, and author with an encyclopaedic knowledge of the scriptures who has been as unsparing about the biased pronouncements of the judges. Other analysts have pointed out that they have practically given a clean chit to the perpetrators of hate and violence who populate that ecosystem.

The latest outcry, however, has come in the form of an open letter to the Chief Justice of India CV Ramana by a group of 117 prominent citizens made up of 15 retired Supreme Court judges, 77 retired bureaucrats and 25 army officers.

Some of the high points of that letter are:

– Those ‘unfortunate and unprecedented comments’ from the bench of Justice Surya Kant and Justice JB Pardiwala ‘are not in sync with judicial ethos’.

– ‘Such outrageous transgressions are without parallel in the annals of judiciary,’ and the observations have ‘no connect’ with the issue raised in her petition. She has been ‘denied access to the judiciary’, and there was ‘an outrage on the Preamble, spirit and essence of the Constitution of India’.

– ‘One fails to understand why Nupur’s case is treated at a different pedestal… Such an approach of the Supreme Court deserves no applause and impacts the very sanctity and honour of the highest court’.

As another lady commentator, who is a former DGP (Director General of Police) observed, the Supreme Court is the highest institution in the country, and Nupur has been let down by none else than the Supreme Court. Where then does the ordinary citizen go to obtain protection?

One wonders what answer would Justices Surya Kant and JB Pardiwala give to this crucial question.

Mauritius Times ePaper Friday 8 July 2022