When the Supreme Court rules

By Soli J Sorabjee in The India Express

Illegal demands for dowry and cruelty against women are persistent evils in our country. Parliament has enacted legislation to curb these evils. Demanding dowry is punishable under the Dowry Prohibition Act, 1961. Section 498A of the Indian Penal Code [IPC] punishes a husband and his relatives that harass or torture the wife and coerce her or her relatives to satisfy unlawful demands for dowry.

A person was convicted for an offence under Section 498A. He challenged the conviction on the ground that the complainant was not his legally wedded wife, as he was already married, and, therefore, Section 498A had no application in his case. The question before the Supreme Court was about the meaning of the expression “husband”, in the absence of any statutory definition.

A bench of the Supreme Court comprising of Justices Arijit Pasayat and A.K. Ganguly in a recent judgment held that irrespective of the legitimacy of the marriage, for the purposes of Section 498A the expression “husband” would include a person who enters into a marital relationship and under the colour of a proclaimed or feigned status of “husband” subjects the woman to cruelty to satisfy illegal dowry demands. The Court further held that “the absence of a definition of ‘husband’ to specifically include such persons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as ‘husband’ is no ground to exclude such person from the purview of Section 498A.”

In common parlance a husband is a person who is legally wedded to another woman, and the marriage is subsisting. What is the basis for the court’s extraordinary conclusion? One is that acts of Parliament are not “drafted with divine prescience and perfect clarity”. True, but can that justify the reasoning that when a defect appears a judge cannot “simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament not only from the language of the statute, but also from a consideration of the social conditions which gave rise to the statute”? Then the judge “must supplement the written word so as to give ‘force and life’ to the intention of the legislature.” The eminent English judge, Lord Denning, who had adopted a similar approach, was roundly reproved by the House of Lords who decried “such judicial heroics.”

The critical question is whether it is permissible for judges in India to cure omissions in a statute by filling in the gaps a la Lord Denning. Or by so doing are the judges not in effect legislating under the thin veil of purposive construction? There are divergent opinions among judges, lawyers and academics. However, there can be no two opinions that the judgment protects women who have in fact been cohabiting in a marital relationship with persons who, though not their legally wedded husbands, are professedly acting and behaving as their husbands. The judgment also highlights that the life of the law is not logic but experience. It reflects a humane approach towards ill-treated sections of society. It is a significant addition to the jurisprudence of compassion evolved by our Supreme Court. And that is what ultimately matters to the exploited and marginalised sections of Indian humanity.

The Supreme Court has in 1996 held that “water is a gift of nature and it would be mocking nature to force the people who live on the bank of a river to remain thirsty.” The court has also held that the right to life guaranteed under Article 21 inter alia includes the right to water. Gandhiji often said that freedom for him would mean the availability of safe drinking water to every person in every village of India. This has still not become a reality. It is a cruel paradox that our country, despite having immense reservoirs of water, continues to experience water shortage as an acute problem. (It is reminiscent of Samuel Coleridge’s famous lines, “Water, water everywhere, but not a drop to drink.”) In much of rural India there is shortage of water for irrigation and for drinking. John Briscoe, who has authored a detailed World Bank report on the subject, has said that despite this alarming situation there is widespread official complacency.

The Supreme Court has come to the rescue. A bench comprising of Justices Markandey Katju and H.L. Dattu in a recent judgment dated April 28 spoke first of India’s strong heritage of science, pointing out outstanding scientific discoveries and inventions made in the past by Indians, and then went on to lament that subsequently we took “to the unscientific path of superstitions and empty rituals, which has led us to disaster.” The court rightly stressed that the way out for our nation is to once again turn to the scientific path shown by our ancestors. Then follows a critical part of the judgment — namely directions, not recommendations, issued to the Central government inter alia to form a committee to address the water shortage problem at the earliest. The committee’s composition is also set out in the order. Thereafter the court has directed the committee so formed to conduct scientific research on a war footing to solve the country’s water shortage. The functions of the committee have been set out in detail. Thereafter the court requests the committee “to do patriotic duty to the nation”, and through scientific research discover solutions for the water shortage problem. The justification for these directions, apparently, is that the country is reeling under acute shortage of water.

The judgment and the directions given are most welcome, and should provide much needed relief. The stress on science and scientific methods and bemoaning the path of superstition is heartening. Indeed that thinking is in keeping with the fundamental duty prescribed in Article 51A “to develop scientific temper”. Another noteworthy feature is that the directions issued to the Central government signify a wholesome change in Justice Katju’s judicial philosophy of separation of powers, of which he has been a strong proponent. It must be realised that the doctrine of separation of powers cannot be rigidly followed but has to be adapted to the needs and problems of our nation in a pragmatic manner. And that is what the judgment has admirably done.