Given below is a well-written article by Mr S.Gurumurthy on the implication and the limits of the statements made by the CJ on live-in relationship.
A regular reader of Mr Gurumurthy's articles would know how sensibly he has postulated the connection between the family-system and the economics of the country. The reason for the mild impact of the Wall Street tsunami on Indian market was that the economy is backed up by a huge system of millions of homes who earn, save and live for the family. Families and their economics make the nation and its economy. Any damage to the family system, if it spreads to other families like an epidemic, is sure to erode the roots of National economy.
The strength of India economy lies in its social system made up of millions of families. Kushboo-ism and its acceptance would spell doom on the country –socially and culturally and most importantly economically.
Right or respect, not both
THE oral statements of the Supreme Court judges quoted in news reports in the Tamil Nadu actress case will henceforth be regarded by most as the law on pre-marital sex case in India, which in law it is not. Assuming that it is the law laid down by the highest judiciary, it will be interesting to see what its impact is on the Indian society. The interesting question is whether, by law or by a court pronouncement, the living model of a society - that too, a traditional society, like the Indian society - can be altered, or to use a modern idiom, socially re-engineered. Read on.
What the judges had asked themselves is the only question that they can ask and answer in law, namely what is, in law, objectionable about pre-marital sex. To which they have rightly answered that in law pre-marital sex was not bad. But, the view that premarital sex is not bad (in law) raises another question. And that is, if that is not bad, what then is good. Also, a further question, whether what is not bad in law necessarily makes it good. This is the point neatly raised by Justice Rama Jois, a former Chief Justice of Punjab and Haryana High Court, in his comment on the views of the judges in the actress' case as reported in the media.
The real question, which the judges cannot possibly ask under the law as it stands, and, therefore, they have not asked, is: whether the view that premarital sex is not bad in law makes it a good virtue? The plain answer is that it certainly does not. This is where the limitation of law and courts arises.
The law cannot declare, nor courts can adjudicate on, what is a good virtue.
The authority of law ends, where a discussion on values and ethics begins.
Whether something is good or not belongs to a field wider than law; it belongs to the field of character, ethics, values and virtues.
For example, respect for elders, teachers, women and behavioural norms like these are good virtues. These values cannot be created or enforced under the law or by courts; but law, why even courts, can undermine them, as it has happened in much of the West. Even honesty and integrity are virtues, which laws or courts cannot create, even though courts can punish the dishonest and corrupt. Courts given to adversarial model can never allow for simplicity and humility. The reason is that law and courts can only create and enforce rights. They cannot create respect.
For example, they can punish a person for defaming another; but they cannot punish a person for not respecting, or even for disrespecting, another, however high and mighty. In fact, law and courts cannot make people voluntarily respect judges or courts.
The law or court punishes for contempt. Law cannot get or win the people voluntarily to respect the judiciary or the judges, though it might coerce them to fear the judges and court.
It is because law can only secure a right, the breach of which is actionable or punishable. It cannot secure respect.
Respect that comes from within is an act of volition, not the result of coercion.
What is respectable without the authority of the law is only what the society holds as respectable or acceptable. And the society is the invisible, but effective, player in human affairs.
So if the judges of the Supreme Court say that unwed living is not an offence, the society will not demur.
But if the very same judges declare that it is as acceptable and respectable like a marriage - which they cannot, perhaps will not - the society will refuse to accept it; and perhaps not respect the judges saying it, though fearing contempt law they may not disrespect what they say.
So what the judges decide as not objectionable is not necessarily acceptable to the society or respected by it. The society will view it in the same way whether it is live-in affairs, pre-marital sex, or same-sex relations. The society does not accept or respect such deviations however much the courts and the law pronounce that they are not forbidden. Social and family norms govern human conduct more effectively than laws and court rulings. Can any one prevent a boy or a girl of majority age from marrying whomsoever they wanted to? Never.
It is their prerogative in law. But we see normally both boys and girls remaining unmarried to get their siblings educated or married first. Nothing compels them to forego the rights granted to them by law.
But the society and the family regard it as a value and a virtue if they give up their rights for others. More.
Take a simple issue, drinking or smoking.
A traditional society feels it is not right to drink, even though the law permits it. And the society will not accept or respect drinking simply because cocktail parties multiply. Even many who drink respect those who don't, even though they might prefer the company of those who share a drink. It's the same with smoking. Even a smoker will respect a non-smoker, even though he may like the company of a smoker more.
In fact, a person wins respect in the society directly in proportion to the right he gives up for others. Sometimes asserting one's legitimate legal rights over another is not an acceptable norm or respectable behaviour, like, for instance, a well-off brother insisting on equal share of family property with his less fortunate brother.
Law can define and courts can enforce contracts. But neither can create relations. Only norms, values and virtues nurtured by give and take among individuals, families and the society can.
Often law disturbs, even undermines the integral relation between individuals, as it has happened in most of the West.
Increasingly uncomfortable with the very idea of a society, the West began delegitimizing the society and promoting the individual.
In the process, it ended delegitimizing even families.
The result is what happened to the economies of many Western nations, particularly the US, as the facts unveiled in the first part showed.
This is where the law and courts in India have to be sensitive to the social capital that works here because of our cultural heritage. The cases like the cine actress' case have the potential to disturb the traditional Indian social capital that has great economic potential as our defiance of the global economic crisis showed.
PS: To cite Radha and Krishna for making pre-marital sex acceptable to Indian sensibilities may not be appropriate as Krishna, according to scholars on him, left Brindhavan when he was 10 years and seven months old. The judges may have to look elsewhere next time.