Do we need to recite Manu Smriti to decide legal position on Abortion?
AM Khan Yazdani (Usha S Danny)
The judiciary can
decide on its own whether abortion is legal or not. Reciting Manu Smriti and consulting
astrologists is nothing but mocking the secular texture of the Indian constitution!
While Justice Sameer Dave of Gujarat High Court has executed a farce; the
Allahabad High Court has performed another mockery. It is noteworthy that in
both the cases the plaintiffs were victims of rape.
It is a fact that the ideals of religious
harmony and socialism are not specifically mentioned in the original Preamble
of the Indian Constitution of 1949. Only the ideal of democracy was clearly
written then. Elaborating it, four sub-ideals namely justice, liberty, equality
and fraternity were incorporated. While fraternity inherently represents
communal harmony, the equality innately represents socialism. In 1977 only,
religious harmony and socialism were added for more emphasis on the democracy.
The Rashtriya Swayamsewak Sangh,
which is the philosophical mentor of the Bharatiya Janata Party, its
predecessors, the Jan Sangh and the Hindu Mahasabha, is against the basic
concept of democracy as a policy.
Right from the day the Constituent
Assembly adopted the Constitution of India on 26th November 1949, the Manu-ists
started attacking it. RSS official journal 'Organizer' published a lead article
in its November 30, 1949 issue praising Manu Smriti and criticizing the democratic
Constitution. "Manu was hailed by the whole world as a great philosopher
and jurist who was born on the soil of India in ancient times. The Smriti
Sutras formulated by him are being appreciated by all. None of this has caught the
attention of our constitutional scholars" the article said
After
the new constitution came into force on January 26, 1950, Chairman of the Drafting
Committee of the Constitution, BR Ambedkar said at a public meeting in Bombay
that the age of Manu has ended and a new democratic age has begun in Indian
society. Former High Court judge Shankar Subba Iyer wrote an article in the
February 6, 1950 issue of the Organizer titled 'Manu Rules Our Hearts’,
severely condemning Ambedkar. In it, it was proudly declared that the
traditional Hindu society will follows Manu Smriti, regardless of whether one
admits it or not.
In his
1966 book 'Bunch of Thoughts', MS Golwarkar, who is considered to be the ‘Guruji’
of the Sangh Parivar, described the four-storey Chaturvarna system as the
greatest social arrangement in the world. Manu has very clearly defined the
specific responsibilities and rights of those on each floor. It is also said
that social peace will continue as long as they enjoy their rights and discharge
their responsibilities.
Since
then, whenever possible, Sangh Parivar leaders say that they will replace the democratic
constitution by Manu Smriti while they gain absolute power. Such announcements
increased after Narendra Modiji became the Prime Minister. It is also being
used as an unofficial promise to attract the traditional Hindus during
elections. Manu Smriti also became a factor in the recent Karnataka assembly
elections.
Coming back to the court cases, in the first one a man and a woman were introduced each other through a marriage bureau in Allahabad, Uttar Pradesh. Later, the woman had claimed that the said man raped her on promise of marriage, but refused to solemnize the marriage on the claim that she is ‘Manglik’. ‘Mangaldosh’ ‘Kuja Dosha’ are a believes in some societies that the husband will face a serious health and financial problems if he marries a woman with Manglik horoscope. The victim has strongly denied that she is a Manglik and a rape case was registered against him.
While examining the
bail application filed by the accused, Allahabad High Court judge justice Brij
Raj Singh had on May 23 given
directions to the Head of the Department (Astrology), Lucknow University, to
verify the manglik claim and submit the report in a sealed cover within
three weeks. The matter will next be taken up on 26th June.
The Supreme Court was shocked to
see the direction orders of the Allahabad High Court in the media. A vacation
bench of the Supreme Court comprising Justice Sudhanshu Dhulia and Justice
Pankaj Mithal took up the case suo motu on June 3. In a special sitting the two
judges bench observed that the HC order was “totally out of context”. In an
interesting development the Solicitor General of India Tushar Mehta also said
that the orders of the Allahabad High Court are “disturbing”. He requested the
Bench to stay the order.
Ajay Kumar Singh, counsel for the rape
case accused, said, “Astrology is a science”. And he asked the court to take
note of the fact that it is being taught as a science in many universities.
Ultimately, the Supreme Court stayed the Allahabad High Court's order to the
Department of Astrology, Lucknow University.
Another strange development took
place in Ahmedabad High Court on 8th June. This is also a case of rape
victim who is at present seven months pregnant. If the pregnancy is more than
six months, the gynaecology surgeons have to take a prior permission from the
court to discharge the abortion. As such the victim's father approached the
High Court seeking permission for the abortion to his daughter.
Advocate Sikander Siyed, appearing
for the victim, pleaded the court that she is not even 17 years old, does not
have the physical and mental health to give birth and nurture a child, and the
society is also not positive. The sitting judge Justice Sameer Dave directed
the Rajkot Civil Hospital management to submit a detailed report on the health
status of the mother and fetus. Also required a special medical report on the
mental state of the pregnant woman who is a rape victim.
It would
have been better if Justice Sameer Dave had settled there. The real part of the
fun started thereafter. Justice Sameer Dave who was anyway reluctant to issue permission
for the abortion has started reciting hymns and slokas from Manu Smriti, which has
been widely criticised for its gender and caste-based codes. The judge turned into a saint in the full court hall. “Girls
get matured even before boys do. Women can tolerate these things more
easily than men. Manu Smriti says that women should get married at the age of
fourteen and become mothers before the age of 17. It is a tradition in our
country. This is the 21st century. I know you won’t read that but still read it
for this once” he said. "You go home and ask your mother or
grandmother and they will tell you at what age they got married" the judge
advised. All these proceedings were recorded by the Bar and Bench.
In almost all religious groups early marriages were practiced in
medieval and earlier times. Sikander Syed, who is the advocate for the victim,
said that marriages were done at the age of 13 in the Muslim community also in
the past.
Modern values and laws emerge from modern needs. One cannot ignore them.
And it is the primary duty of the
judiciary to oversee the implementation of the law of the land.
AM Khan Yazdani (Usha S Danny) is a social
and political analyst and a senior journalist from Andhrapradesh. Mobile :
9010757776
11 June 2023
PS
As this is my first article in English
after a long time you may please correct the grammatical flaws.
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