India: On gender justice and human rights, court can’t hold back or abdicate responsibility | Upendra Baxi

The Indian Express

Perils of restraint

Upendra Baxi | February 26, 2014 3:56 am

The court’s refusal to recognise that the right toadopt is an integral part of Article 21, which guarantees the rights to life and liberty, is striking. PTI

On gender justice and human rights, court can’t hold back or abdicate responsibility.

At a time when millions of orphans await legitimate adoption, the Supreme Court’s judgment in Shabnam Hashmi versus Union of India and Others is managerial, howsoever cleverly crafted. It takes the “small step” of recognising adoptions under the Juvenile Justice (Care and Protection of Children) Act, 2000, and the rules flowing from it, especially the amendments of 2006. Now, Indian Muslims may adopt Muslim children.

The act “does not mandate any compulsive action” by a foster or adoptive parent. It is wholly facilitative and no person violates any obligation to adopt, simply because there is no duty imposed on any one. As with the Special Marriage Act, 1954, very few Muslims would take recourse to the Juvenile Justice Act for adoption.

More striking is the court’s refusal to recognise that the right to adopt is an integral part of Article 21, which guarantees the rights to life and liberty. After nearly two decades of social action litigation, which has expanded the judicial role in almost every sphere of national life, to say that the Supreme Court has no constitutional responsibility to discharge the obligation under Article 44 to strive towards the enactment of a uniform civil code (UCC) is not convincing. The court had the opportunity to do a repeat of the larger bench’s decision in the Shah Bano case, however meagre and provocative it might have been.

Instead, the Supreme Court now says that the “elevation” of this right to the status of a fundamental right under Article 21 will have to wait for another day. The court stresses that it is for Parliament to meet the constitutional obligations of Article 44, that it is for future generations to craft a UCC once there is “a dissipation of conflicting thought processes… prevailing in the country”. Judicial self-restraint stands commended; judicial activism stands downgraded.

One may still ask the court: How long will Indian Muslim children have to wait till they can rightfully be adopted by other pious Muslims? Is nearly 65 years of the Indian republic not long enough to fulfil the obligation of a UCC? Is the All India Muslim Personal Law Board (AIMPLB) to be the decisive voice for them or the Constitution of India, which gives them the freedom of both conscience and religious beliefs and practice, as well as the right to complex equality? How about India’s own obligations under the United Nations Convention on the Rights of the Child? What happens to Indian law, policy and administration in that context? Finally, what would happen if succeeding generations were to ignore, or find it even more difficult to implement, the judicial advice so mildly expressed in the judgment?

The court does not pay much heed to the AIMPLB’s argument that Islamic personal law only follows the system of Kafala, under which foster care is permitted for Muslims but not adoption. The AIMPLB asked the court to direct authorities acting under the juvenile law to take full note of that position. The court refused to oblige, though reiterating that a UCC could only be achieved by the “collective decision of succeeding generation(s) to sink conflicting faiths and beliefs that are still active”.

The court had no inclination to note that many a Muslim jurist is, after all, interpreting “Fiqh (jurisprudence)”. This is distinct from the Sharia, which is defined as divine in origin. If you follow the maxim that the law is a matter of divine reason, which can be interpreted by humans who have been given the gift of reason, even the Sharia remains a matter of conflicting human interpretation. Such interpretation is not permissible only when the commandment emanates from divine will: all conflicting and customary interpretation must then cease.

Whether Quranic verses on adoption articulate this distinction is the question that the court should have confronted. Many Muslim-majority countries (such as, Malaysia, Somalia, Tunisia, and Turkey) have deemed adoption legal. Algeria, Jordan and Morocco also allow for the adjustment of the Kafala system to render Muslim foreign adoptions valid.

Whatever the justification for legislative inaction earlier, had the Supreme Court consulted the 2011 report of the Global Muslim Women’s Shura Council, an organisation based in the United States, the reasoning and the result in this case would have been vastly different. The council finds that “instead of banning adoption, Islamic sources have brought various ethical restrictions to the process, condemning dissimulation and foregrounding compassion, transparency, and justice”. And “these restrictions closely resemble what is known today as the practice of ‘open adoption’”, that is, where adoption does not result in the severance or erasure of genetic ties.

Accordingly, “when all efforts to place orphaned children with their extended family have been exhausted, open, legal, ethical adoptions can be a preferable, Islamically grounded alternative to institutional care and other unstable arrangements”. Thus, a modified Kafala system in which the state and the law have more than a facilitative role is not anti-Islamic. It carries forward the imperative of international human rights — namely, the best interests of the child in state and civic enterprise.

In the second decade of the 21st century, the court is clearly at a crossroads. Its present judgment — as well as the recent judgment re-criminalising same-sex relations as “against nature” — appeals to Parliament to perform its constitutional obligations. Yet, given electoral arithmetic and the politics of human rights, the legislature is unable to engage with constitutionally legitimate law reform.

At the same time, the court adores Article 21’s right to liberty, both to render “complete justice” and to enhance its own jurisdiction. It thus counsels self-restraint and judicial activism at the same time. In itself, the judicial preference for legislative action is understandable, but the court also legislates in the interests of governance, development and justice.

In the charismatic moment that saw the inception of social action litigation, the court carved out a social niche for epistolary jurisdiction for the disenfranchised, the dispossessed and the disadvantaged in India. In that moment, the Supreme Court became, in Justice Goswami’s immortal words, “the last refuge for the bewildered and the oppressed”.
Today’s court seems to fail not just episodically but also structurally. It needs a cohesive — collectively disciplined — adjudicatory leadership. At least, the sorry spectacle of smaller benches ignoring the decisions of larger benches should now end. The court should take a more determined stance when any personal law system violates the norms of gender justice and the human rights of sexual minorities.

The writer is professor of law, University of Warwick, and former vice chancellor of the Universities of South Gujarat and Delhi
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