FB   
 
Powered bysps
        Society for Policy Studies
 
 

 
Jyoti Singh and Bilkis Bano cases: Activism does impact language of judgements
Updated:May 17, 2017
 
Print
Share
  
increase Font size decrease Font size
 
We tend to wish that judges interpret the law like scientists study nature — impartially, analytically, almost anti-socially, in a secluded realm of fact measured against abstraction. The recent judgments in the rape and murder cases of Jyoti Singh and Bilkis Bano have given many causes to claim that this ideal has been betrayed. If it has, however, the fault may not lie with the judges alone.
 
The defendants in the rape and murder of Jyoti Singh have received the death sentence in a Supreme Court judgement, which refers to “savage lust” and “bestial proclivity” taking a “demonic form” in an event that amounted to a “tsunami of shock in the minds of the collective” and that “destroyed humanity”. Under the pressure of public rage, these judges opted to depict the accused with subhuman imagery, and to sentence them to the death penalty. Singh’s case was prosecuted in four and a half years.
 
As for Bilkis Bano, a victim of gang rape during the Gujarat riots, it took 15 years for only a state-level judgment. The judges of Bombay High Court rejected the charge of conspiracy, describing the attack as “spur of the moment” despite also saying the attackers were “hunting for Muslims”, and sentenced the perpetrators not to the death penalty — as the CBI recommended — but rather to life in prison. Bano had received little of the intense public attention devoted to Jyoti Singh.
 
In Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, American legal scholar David Cole argues that some of the most important recent Supreme Court decisions in the US have, for better or for worse, been the product of sustained campaigns of public activism and advocacy.
 
In 1972, before most Americans were likely familiar with the concept of gay marriage, the Supreme Court replied to an appeal regarding it with a curt, sentence-long dismissal. Fourteen years later, it ruled that states could make gay sex a crime. Meanwhile, the AIDS crisis was encouraging an unprecedented degree of organisation and agitation in the American gay community. The social movement that was born found a legal counterpart in organisations like Freedom to Marry, which raised millions of dollars to fight cases related to gay marriage. By 2015, in a society with tremendously changed attitudes, gay Americans had gained a new constitutional right.
 
Few would say that the influence of civilian activism on constitutional law is entirely benign. Many supporters of gay marriage deplore America’s skimpy regulation of guns, for example, but Cole shows that civil society groups were equally responsible for causing the Supreme Court to dramatically reinterpret gun rights.
 
In 1990, a former Republican member of the Court was reflecting conventional wisdom when he dismissed the idea that there was an “individual right to bear arms” as “one of the greatest pieces of fraud… on the American public by special interest groups that I have ever seen in my lifetime.”
 
In 2008, however, after a long and expensive legal campaign run largely by the National Rifle Association — an organisation that commands an annual budget of about a quarter of a billion dollars and boasts three-to-five million members — the Supreme Court ruled the right to bear arms to be constitutional.
 
The new rights won by gay people and gun owners in the US came at the same time that each group newly asserted itself and won political power.
 
The text of the law at any given time is fixed, but its meaning and application remain a social fact.
 
Hindustan Times, May 18, 2017
 
 
 
 
Print
Share
  
increase Font size decrease Font size
 

Disclaimer: South Asia Monitor does not accept responsibility for the views or ideology expressed in any article, signed or unsigned, which appears on its site. What it does accept is responsibility for giving it a chance to appear and enter the public discourse.
Comments (Total Comments 0) Post Comments Post Comment
Review
 
 
 
 
spotlight image Ties between India and Japan are probably at their best ever, Japanese Ambassador to India H.E. Kenji Hiramatsu told India Review & Analysis’ Nilova Roy Chaudhury, as he outlined how the two countries have moved closer. Ahead of Japanese Prime Minister Shinzo Abe’s visit
 
read-more
 India's External Affairs Minister Sushma Swaraj and United States Secretary of State Rex Tillerson discussed on Monday how their two countries can jointly fight terrorism and promote security in the Indo-Pacific region.
 
read-more
That regional cooperation in South Asia is lower than optimal levels is well accepted. It is usually ascribed to – the asymmetry in size between India and the rest, conflicts and historical political tensions, a trust deficit, limited transport connectivity, and onerous logistics, among many other factors.
 
read-more
Reflections on September evoke a host of memories.
 
read-more
  During the budget session of the legislative assembly, the Chief Minister informed the  House about state’s missing children. According to her, as many as 162 children have gone missing in the past three years.
 
read-more
The Communist Party of China (CPC) is expected to amend its constitution at the upcoming national congress.
 
read-more
  If anything, Aung San Suu Kyi’s 29-minute State of the Union address underlined the crown of thorns that she wears.
 
read-more
The apprehension was justified. US President Donald Trump’s disregard for institutions and fondness for reckless rhetoric meant that his maiden appearance at the annual UN General Assembly was a closely watched affair.
 
read-more
It is a privilege to be invited to this most prestigious of law schools in the country, more so for someone not formally lettered in the discipline of law. I thank the Director and the faculty for this honour.
 
read-more
Column-image

Title: A Bonsai Tree; Author: Narendra Luther; Publisher: Niyogi Books; Pages: 227 Many books have been written on India's partition but here is a firsthand account of the horror by a migrant from what is now Pakistan, who ...

 
Column-image

As talk of war and violence -- all that Mahatma Gandhi stood against -- gains prominence across the world, a Gandhian scholar has urged that the teachings of the apostle of non-violence be taken to the classroom.

 
Column-image

Interview with Hudson Institute’s Aparna Pande, whose book From Chanakya to Modi: Evolution of India’s Foreign Policy, was released on June 17.

 
Column-image

This is the continuing amazing spiritual journey of a Muslim man from Kerala who plunged into Vedic religion after a chance encounter with a Hindu mystic under a jackfruit tree in the backyard of his house when he was just nine. It is a story w...

 
Column-image

History is told by the victors but in our modern age, even contemporary events get - or are given - a slant, where some contributors soon get eclipsed from the narrative or their images tarnished.

 
Subscribe to our newsletter
Archive