Twin Judges in Conservative v. Liberal Terrain – Does Law Have All The Answers? Narasimhan Vijayaraghavan Justices V Parthiban & N Anand Venkatesh Textualist v. Evolutionist. Conservative v. Liberal. Stephen Bryer v. Antonin Scalia. G. S. Singhvi v. D Y Chandrachud. You can go on and on. The feelings and faculties that are triggered from this debate could be multiple. There could be appreciation, understanding, outrage and/or even revulsion, convulsion from the construct, put upon constitutional law, by either side.

Twin Judges in Conservative v. Liberal Terrain – Does Law Have All The Answers?
Narasimhan Vijayaraghavan

Justices V Parthiban & N Anand Venkatesh

Textualist v. Evolutionist. Conservative v. Liberal. Stephen Bryer v. Antonin Scalia. G. S. Singhvi v. D Y Chandrachud. You can go on and on. The feelings and faculties that are triggered from this debate could be multiple. There could be appreciation, understanding, outrage and/or even revulsion, convulsion from the construct, put upon constitutional law, by either side.

I was drawn bigly into these thoughts and more, when I read the orders dt.29th March,2021 of Justice Anand Venkatesh (God, why is it that he gets all these humongous ones!) in Re: in WP No. 7284/2021 ( they shall remain nameless for obvious reasons).

“The 1st Petitioner, is aged about 22 years and she has completed B.Sc. Mathematics and is presently pursuing M.B.A.in correspondence mode in Madurai Kamaraj University. The 2nd Petitioner, is aged about 20 years and she is pursuing B.A. Tamil through correspondence mode in Madurai Kamaraj University. The Petitioners know each other for the last 2 years and both of them in unison stated that their friendship blossomed into love and they were very clear that both of them will be a partner to each other for life. The Petitioners did not mince any words and there was so much of clarity in what they wanted to convey.”

Stunning. Truly epochal. This man has got a mind. A heart. Above all, reason and a willingness to change, morph and evolve as a homo sapien and a constitutional judge. Power be to his gavel.

The one message, above all else, I get is that- Law Is Not The Repository of All Knowledge. Law Does Not Have All The Answers. The World is changing so fast that our past assumptions and moorings, are coming to haunt us. We the People need to change. That is the one message that my friend Anand Venkatesh- I make it bold to call him that without a J-for he agrees, as I do, he just happens to be a Judge. I can say so, for my other friend Vasudevan Parthiban too, also on the Bench. Somehow, their idea and vision met in the wake of POCSO cases ( a draconian law meant to be that for it is dragons that go visiting as sexual offenders). These two conservatives with liberal hearts, saw that there may be need for the State and society to pivot to the present. In the matter of infatuated adolescents entering into physical relationships with consent or even getting into matrimony in stealth as law abhors it – as minors. My elder friend Parthiban went first with the verdict in Sabari @ Sabarinathan dt. 26th April, 2019 quashing the conviction imposed by a Mahila Court, on a minor boy- in a landmark decision suggesting that We The People may need to bring the change in our hearts and minds first. And accept that we live not merely in the era of fourth industrial revolution but fourth or fortieth or four millionth societal and cultural revolution today.

And we the elders may need to adapt and adopt. Not feign and frown. We may not like it. We may not approve of it. But, we cannot afford to hide it. Accepting the reality may hurt us. But not accepting it, may hurt the future generations of this genre, worse. They are Homo sapiens too. Anand Venkatesh followed Vasudevan Parthiban on 29th Jan,2021.

“Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act,”

Now, the two judgments of my good friends, are under the scanner before the top court, when a bench led by the only woman judge on it now – Justice Indira Banerjee has ordered notice to State of TN as to why the love and live in relationship between two minors, in virtual matrimony, being consensual not be accepted as legal and not a POCSO crime?

“ Punishing teenager having a consensual affair which later tums out to be sour for any reason cannot be considered as an objective of the Act and it would only defeat the object of the Act. The Act is silent on the aspect where two individuals though may be less than 18 years, enters into a consensual relationship and in the absence of this, certainly the application of law in the Act cannot be permitted to charge and punish individuals in such relations keeping the fact of changing societal needs. Such consensual incidents certainly cannot be seen from the nature of such stringent provisions of the POCSO Act,” the plea states.

It makes robust common, logical and legal sense to think that the Supreme Court has the power under Art.142 of Constitution ( even if it may be needling the principles in VC Mishra case as possibly being opposed to statute) to ‘do complete justice’. The Executive may take its own time. Legislature may be polarised not to yield, so quickly. But our children being in such a tearing hurry and unwilling to wait, Law may need to do the catching up.

Be that as it may, now this verdict in Re:. It took a long while. A long, long while. A circuitous route through Justice K S Puttaswamy case on Right to Privacy, for delagalising same-sex relationships and ridding Sec.377 from Indian Penal Code, specifically in Navtej Singh Johar v. Union of India dt. 6th Sept,2018.
Even in the US of A, which is the oldest democracy and precursor to most decisions ‘progressive and modern’, it took a couple of centuries, for Obergefel v. Hodges to arrive only on 26th Jun,2015. In a heated battle between the conservatives v. liberals, the latter just tripped, not trumped, the former with a 5:4 majority, thanks to Justice Anthony Kennedy, a conservative with a liberal ethos, much like my good friends, as the swing vote. But with Donald Trump’s 3 nominations to the SCOTUS and a skewed 6:3 majority now, for conservatives- the progressive agenda is under serious threat.

Imagine if that is the plight of the ‘different’ in USA, what of those in our midst. The issue is extremely sensitive. It is hurtful to the trained and lived sentiments of the parents- in the words of the learned judge-

“The parents came to know about the relationship between the Petitioners, and it was not to their liking. There was opposition and the pressure started mounting, and hence, the Petitioners left Madurai on 09.02.2021, to Chennai. The Petitioners are presently supported by an NGO namely, International Foundation for Crime Prevention and Victim Care (“PCVC”). The Petitioners are searching for a job in order to financially sustain themselves ”

Law is not immutable or immanent. It has to evolve as Justice Anand Venkatesh beautifully chisels his thoughts:

‘I personally spent some time in doing some research and collecting materials to arrive at a proper understanding of this issue. It would have been possible for me to pack my Order with a lot of research material and get applauded by the outside world for rendering a scholarly Order. There was a call from inside which kept reminding me that if I venture into such an exercise at this stage, it will only be hypocritical of me since the Order will not reveal my true and honest feeling about this very important issue. To be open, I am also trying to break my own preconceived notions about this issue and I am in the process of evolving, and sincerely attempting to understand the feelings of the Petitioners and their parents thereafter, proceed to write a detailed Order on this issue. That is the reason why I am trying to develop this case brick by brick and ultimately, construct something purposeful on this issue.”

Well put, my friend. Very touching and moving words. It would be easy and noisy to go ga ga over this preliminary verdict. Liberal media may tom tom that time is ripe and now. Or call the other side ‘names’ and ‘prudish’ and more. That would not serve the cause. This is just the beginning of the beginning. Not even the beginning of the middle leave alone of the end, of where we may travel or need to be.

Let society heed ‘the call from the inside’ of the Judge like. Let there be introspection, serious examination of multiple issues- physical, moral, metaphysical, physiological, philosophical, historical, legal and constitutional et al. There is not a facet of life that would be left untouched. Can society come to terms with those ‘different’ from us- LGBTQ community for short? Can Obergefel -to bless a same-sex marriage, happen here? Could they have children, the surrogate route? What of their legal rights to property?

Oh, My God, there are only huge questions. No, ready or certain answers. It is a path full of thorns. Too sensitive to ruffle feathers, too easily. The balancing of parental and wards’ sensitivities, is no easy task. And not to forget the family,community and societal impacts.

Law has to evolve and change. But, it needs to innovate too. We live in tough and troubling times, for some. But we live in progressive times, for others. Whatever, the only truism this author can say with confidence and conviction is that -Law is stunted. Law is derelict. Law is insufficient. Law is ineffective. Law stands exposed.Law does not have all the Answers. Pray, if Law does not, does the Judge with law as the tool, have the answers, as my friend Vasudevan Parthiban, put it in the context of Madurai Adheenam case,

“Excuse me, let us be humble. We do not have the answers to all questions. We must exercise restraint. For, We are not the Repository of all Knowledge”.

The only hope and refrain that one can express on this occasion is- Trust, that Justice Sanjib Banerjee, the learned Chief Justice of Madras High Court -as Master of the Roster vest the matter, to be taken to its logical culmination, (God knows where), to the self-same Justice Anand Venkatesh. Please.

(Author is practising advocate in the Madras High Court)