The Supreme Court’s refusal to include “non-heterosexual unions” within the realm of marriage is heartbreaking, if not unsurprising. Especially in the aftermath of Navtej Singh Johar vs Union of India (2018), which decriminalised homosexuality and promised the queer community a rainbow of rights.
Experts have pointed out that while the top court said all the right things, it simply fell short of doing enough. Despite the plea for the words “man” and “woman” (as used in the Special Marriage Act) to be read in a gender neutral manner, the apex court felt encumbered by institutional limitations. Additionally, the judgment authored by Justice S. Ravindra Bhat (on behalf of Justice Hima Kohli and himself) disagreed with aspects of Justice D.Y. Chandrachud’s Navtej Johar judgment and said:
“There are almost intractable difficulties in creating, through judicial diktat, a civil right to marry or a civil union, no less, of the kind that is sought by the petitioners in these proceedings.”
Justice Bhat also expressed an inability to allow same-sex couples the right to adopt children.
Legal experts have, however, expressed disappointed with the narrow, restrictive and conservative approach – “more focus on the letters of the law than on the spirit of the law,” a lawyer lamented in a private conversation.
However, as Justice Bhat hung his robes on October 20 it may be pertinent to remember that this judgment alone cannot be allowed to cast a pall over his otherwise sparkling legacy.
“I feel like crying that he is retiring, he was really fair,” a lawyer who practices on the criminal side told me on a phone call.
“Both as a Supreme Court judge, and as a person,” a senior advocate added in a separate conversation.
Against manual scavenging, for speedy disposal of cases
As a judge of the top court Justice Bhat displayed a reform-oriented and empathetic approach. Right up to his last day in court, when he issued a slew of directions, with a firm reminder that “Union and States are duty bound to ensure that the practice of manual scavenging is completely eradicated.”
The bench of Justices Bhat and Aravind Kumar ordered that the compensation in cases of sewer deaths must be increased to Rs 30 lakhs, in cases of permanent disablement due to sewer operations to Rs 20 lakhs, and Rs 10 lakhs for other forms of disablement.
It may be noted that government data alone shows that 339 people have lost their lives to manual scavenging in the last five years. Many others have been crippled by it. Their families destroyed.
“Each of us owe to this large segment of population who have remained unseen, unheard and muted, in bondage systematically trapped in inhuman conditions,” the bench observed.
In a separate matter, the bench of Justices Bhat and Kumar also lamented the pendency of cases in the courts of the country and passed eleven directions for their speedy disposal.
If one might add, there is already a problem of arbitrary arrests and limited adherence by the police to judicial guidelines (such as those passed in the cases of Arnesh Kumar and Satendra Kumar Antil). Data reveals that more than half of Indian jails are packed beyond capacity. And then the “snail pace” (if one might borrow a phrase from the court’s vocabulary) at which trials are carried out and bail orders are passed further amplifies the disease, depravation and despair that mark the life of an average Indian inmate. Thus, such directions hold immense timely relevance.
And this isn’t all.
Keeping the survivor in mind
The same bench recently observed that the state is obligated (under the Protection of Children from Sexual Offences Act or POCSO) to provide ‘support persons’ to child survivors of sexual offences and that it should not be left to the discretion of the survivor’s parents.
Back in 2021, a bench of Justices Bhat and A.M. Khanwilkar had set aside a Bombay high court order that had granted bail to a sexual harassment accused on condition that he get a ‘rakhi’ tied by the complainant (and give her Rs 11,000 as per ritual, and take her blessings). Noting that such orders can potentially re-traumatise a survivor, the top court mandated a gender-sensitisation module for all judges, among other directions.
But it isn’t simply Justice Bhat’s reform-oriented approach that deserves mention.
His dissent in the Economically Weaker Section (EWS) quota case has been compared with one of the great dissents of Indian judicial history (including that of Justice H.R. Khanna in the ADM Jabalpur case.) The EWS quota, as upheld by the majority view, does not recognise Scheduled Castes, Scheduled Tribes, or the Other Backward Classes. Justice Bhat held that this exclusionary clause strikes a “death knell to the equality and fraternity principle which permeates the equality code and non-discrimination principle”.
Justice Bhat displayed a degree of independence that many others might struggle with, especially when confronted by an overbearing executive.
In a talk delivered online amid the pandemic, he asked the citizens to use their liberties to constantly question the authorities in power and to not be complacent about any encroachment of their rights. And he, himself, walked the talk.
Demanding answers of the Executive
In 2021, Justice Bhat was part of a bench (with Justices Chandrachud and L. Nageswarao Rao) that demanded answers from the government on its COVID-related policies. Observing (in a prior hearing) that the government’s dual pricing policy for the COVID vaccine was compelling the different state governments to compete with each other (while the pandemic raged and so many lives were lost, if one might add), the bench said:
“Our Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies.”
“Courts have often reiterated the expertise of the executive in managing a public health crisis, but have also warned against arbitrary and irrational policies being excused in the garb of the “wide latitude” to the executive that is necessitated to battle a pandemic,” the court further noted.
Even though the court, as per its own admission, had only assumed “a dialogic jurisdiction”, a few days later (June 7), the government itself announced the centralisation of the COVID-19 vaccine drive and the Prime Minister said that all vaccines will be given to the states for free. So even if it seems as if the government’s ‘own’ decision, one might wonder if the apex court’s take had something to do with it.
More recently, in the aftermath of the killing of gangster Atiq Ahmed and his brother, Justices Bhat and Kumar reportedly pulled up the UP police, and asked them to explain in a “comprehensive affidavit” what went so wrong that the duo were killed while in police custody.
Additionally, on being informed later that Ahmed’s surviving sons (minors) wanted to reside with their family instead of a childcare institution in Prayagraj, the same bench directed the Child Welfare Committee to decide the matter afresh. Finally, earlier this month, the boys were released to the custody of their aunt.
And when the SC came to his court
Pertinently, Justice Bhat was not one to be overawed by status or status quo – even 10 years prior to his elevation to the top court.
Back in 2009, as a Delhi high court judge, Justice Ravindra Bhat dismissed an appeal by the Supreme Court itself. Noting that “all power – judicial power being no exception – is held accountable in a modern Constitution,” he single-handedly opened the office of the Chief Justice of India to the Right to Information (RTI) Act. This decision was upheld by the apex court.
Beyond the judge…
We are not arguing that the good cancels out the, well, not-so-good. So to talk about the hits of Justice Bhat’s career is in no way discounting the misses that may have been.
Additionally Justice Bhat’s judicial career spans nearly two decades, and there is a lot of it that cannot be fairly encapsulated in this piece. But who you are as a human being will always impact what you do as a judge. And so, Justice Bhat as a person also deserves a mention.
During the first way of the COVID-19 pandemic, while those who could were hiding in the safety of their apartments, and migrant workers, rendered helpless and jobless by the suddenness of the lockdown, were desperately trying to flee the city, a Supreme Court judge was reportedly seen on the streets of Delhi distributing packets of food. Needless to add, that judge was S. Ravindra Bhat.
With inputs form LiveLaw, Leaflet, The Quint and The Economic Times.
Mekhala Saran is studying Global Media and Digital Communications at SOAS, University of London. She has an LLB and an English honours degree and was formerly principal legal correspondent at The Quint.
