Sex and civil freedoms: How India’s top judge spent his last days changing the country

Click to play video: 'India’s top court legalizes gay sex in landmark ruling'
India’s top court legalizes gay sex in landmark ruling
WATCH ABOVE: The Supreme Court of India struck down a law that treated gay sex as illegal – Sep 6, 2018

India‘s top judge did not go quietly into retirement.

Chief Justice Dipak Misra presided over the Supreme Court of India for the last time on Monday, wrapping up a progressive and contentious 13-month term as leader of the country’s highest court ahead of his 65th birthday. Misra will end a seven-year tenure with the court when he hits the mandatory retirement age on Tuesday.

Misra hailed India’s judiciary in his farewell speech on Monday, saying that the Supreme Court will remain “supreme,” now and in the future. He also called for the court to remain “human” in the way it handles social issues.

“Justice must have a human face and a human approach,” Misra said. “Truth has no colour.”

Misra has presided over several recent verdicts that strained the norms of a deeply conservative Indian society by granting more rights to women, homosexuals and religious minorities. Some of his most significant verdicts struck down laws that have been in place for 158 years, dating back to the original Indian Penal Code introduced by British colonizers in 1860.

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“Justice Misra has continuously upheld the freedom of the individual, freedom to choose,” Supreme Court judge Ranjan Gogoi, who will succeed Misra, said at the chief justice’s farewell press conference on Monday.

The Chief Justice of India controls the court’s roster and decides who will preside over which cases. Misra has used that power during his tenure to fast-track several landmark cases to the Supreme Court, skipping through a system that often forces petitioners to wait decades for a verdict.

Progressive groups have hailed Misra’s actions behind the bench, although many in the judiciary have criticized his aggressive approach and disregard for seniority.

Chief Justice of India Dipak Misra is shown at a Supreme Court Bar Association event on Sept. 26, 2018. Supreme Court Bar Association/Facebook

He survived an insurrection among his four fellow Supreme Court justices early this year, after they accused him of selectively assigning cases. Opposition lawmakers filed a petition to impeach Misra in April on the basis of the judges’ complaints. The parliamentarians accused Misra of failing to protect the independence of the judiciary from executive inference, and of arbitrarily using his power to assign sensitive cases.

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India’s vice president, M. Venkaiah, ultimately shot down the petition and allowed Misra to continue his work. Venkaiah said the allegations were “neither tenable nor admissible.”

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Misra will retire after he turns 65 — the mandatory retirement age — on Tuesday. Monday was his last day in court.

Here’s how he wrote his legacy into the Indian Penal Code with four major rulings in his final month behind the bench.

Legalized homosexuality

The Supreme Court struck down a colonial-era law against homosexual sex acts on Sept. 6, in a unanimous decision that gay rights advocates hailed as a major victory.

The ruling eliminated Section 377 of the Indian Penal Code, which held that intercourse between members of the same sex was punishable by up to 10 years in prison. The law had been in place since 1861.

“Constitutional morality cannot be martyred at the altar of social morality,” Misra said in reading the verdict.

“Social morality cannot be used to violate the fundamental rights of even a single individual.”

The court declared sexual orientation a “biological phenomenon,” and said that discrimination on that basis violated fundamental rights.

Five petitioners brought the case to court, where they argued that the law was discriminatory and led to gays living in fear of harassment and persecution.

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The court ruling legalized consensual gay sex, but allowed portions of the old law to remain in place for situations involving bestiality.

Legalized adultery

In the Supreme Court ruling decriminalizing adultery, Misra sent a clear message to Indian society: women are not property.

India’s adultery law allowed men to prosecute other men for sleeping with their wives, but did not permit women to lay charges against a cheating husband. The law stood for 158 years before it was struck down in a unanimous decision on Sept. 27.

Women having affairs could not be prosecuted under the old law, but men who were found guilty faced up to five years in prison.

The court declared that adultery can still be grounds for divorce, but that the criminal penalty violated a woman’s right to equal protection under the law.

Lifted temple ban on menstruating women

The Supreme Court ruled on Sept. 28 that India’s historic Sabarimala temple was wrong to ban women of menstruating age.

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The Hindu temple welcomes 50 million annual visitors and is one of the largest pilgrimage sites in the world. However, it barred women between 10 and 50 from entering due to the belief that menstruating women are impure.

The top court ruled 4-1 that excluding women cannot be regarded as an essential religious practice, and that the temple would have to permit all women to enter.

WATCH BELOW: India’s top court lifts ban on women at prominent temple

Click to play video: 'India’s top court lifts ban on women at prominent temple in latest of string of judgments'
India’s top court lifts ban on women at prominent temple in latest of string of judgments

“Religion cannot be the cover to deny women the right to worship,” Misra said in his ruling.

“To treat women as children of a lesser God is to blink at constitutional morality.”

Granted privacy rights over biometric data

In one of Misra’s final decisions, the court ruled 4-1 that private companies could not compel Indian citizens to share their personal biometric data as a condition of service.

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The ruling addressed India’s Aadhaar system, which has become the world’s largest biometric identification database. Approximately 1.2 billion Indians — including virtually all adults — are enrolled in the program, which assigns each person an identification number corresponding to their fingerprints and iris scans. Approximately 99 per cent of adults are enrolled in the program.

The Indian government introduced Aadhaar in 2009 as a way to cut down on fraud in accessing social services. However, critics argued that the supposedly voluntary program was encroaching on citizens’ daily lives, because many banks and phone companies were demanding an Aadhaar number from new customers. Companies had been using the system to fast-track ID checks.

The Supreme Court ruled last week that the Aadhaar system itself was legal, but private companies could not demand a person’s Aadhaar number.

Looking to the future

Misra’s successor will be Supreme Court judge Ranjan Gogoi, one of the four judges who publicly criticized him earlier his year.

Gogoi is next in line for the role based on seniority, and is slated to take over as chief justice on Wednesday.

Gogoi heaped praise on Misra in a speech on Monday, despite their past disagreements. Gogoi said Misra’s greatest contributions were to civil liberties in India, particularly in the court’s recent verdicts.

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“We live in times when what we should eat [or] wear have stopped being little things of our personal lives,” Gogoi said. “So what is it that unites us? Without a doubt, it is the Constitution.”

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