A Nightmare On Tilak Marg

The statement of Chief Justice of India (CJI) Dhananjaya Yeshwant Chandrachud that “… the very notion of a man and a woman is not an absolute based on genitals” has stirred the nation, triggered jokes, led to a meme-fest on social media and overall met with disapprovals from citizens.

More so as the Indian judiciary sits on piles of backlog. Amid 4.70 crore cases pending across courts in India, with more than 70,000 of those are pending in the Supreme Court, 40 per cent of which have been pending for more than five years, what could be seen in a one-off case an obiter dictum, not taken as seriously as a verdict, is being seen as an unnecessary woke indulgence on the part of the CJI.

CJI Chandrachud’s observation in the context of an appeal to legalise same-sex marriages was not unexpected though, given another recent statement of his where he exonerated a woman from adultery by saying, “That a woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity,” whereas he did not offer an equal degree of freedom from commitment to the married man.

Depending on what an observer’s ideology is, the CJI’s illustrious career in law, especially as a judge, with several instances of challenging the norms of society, can be seen as trendsetting or biased in favour of one section of people and against another.

Put together, however, those judgements and the observations made in the course of cases would sound mutually contradictory.

For example, if there is no absolute in determining the sex of an individual, what did Justice Chandrachud mean in the case of adultery by “wife” and “husband”?

Should not the adulterous wife merit a harsher treatment as she is also partly a man? And does not the husband have some right as a woman too because his genitals do not make him an absolute man? Absurd!

This wokeness, now rampant in the United States, taking the rest of the world by storm, did not start overnight, though.

If the question, “What are your pronouns?” did not surface with feminism in the US in the 1960s, it began surefooted with editors of the largest circulated newspaper in the country in the 1990s deciding that English language grammar must be fiddled with, where the case of the first-person singular pronoun “I” must be lowered!

Even before those Indian journalists, some Anglophone experts in the West had decided the term “actress” was discriminatory and hence women in the profession must be referred to as “actors” too.

Mercifully, zoologists never said that a cow must be referred to as a bull, failing which the female animal must take offence.

Much as a black widow spider is dreaded for devouring the male post-mating, nobody said that the common name of the female insect and the description of its habit sounded misogynistic and must be expunged from books of entomology.

It is because of such no-nonsense approach of science that the CJI’s statements must stand the scrutiny of biology rather than of sociology.

It is because science refuses to entertain whims and fancies of the humanities that the word “sex” rather than “gender” must determine how right or wrong the CJI is.

For gender, the woke say, can be assumed or self-identified; sex cannot be. And both woke and those ‘asleep’ agree gender is a social construct, which surely cannot have absolutes.

This is why medical practitioners use the term “sex determination” and not “gender determination”.

Before getting into the chromosomal aspect of sex, the lay may wonder whether science does lend some credence to the CJI’s contention because traces of testosterone, a male hormone, are found in women too.

They may cite examples of some women athletes failing the International Association of Athletics Federations-mandated sex tests after which they were disqualified as they had come across as ‘men’.

The relatively more knowledgeable would say in the same breath that oestrogen, the female hormone, is present in men too, albeit in less concentration — a little in their blood and a lot in the semen. This is why a deeper understanding of the science of sexes is warranted.

Healthy females of most mammals, some insects, some snakes, some fish and some plants have a pair of the same kind of sex chromosomes, XX, while males have the heterogametic XY.

Keeping aside abnormalities like Klinefelter syndrome (XXY), Swyer syndrome (women with XY), XX male syndrome etc, there is no argument in the community of scientists that in human beings, the presence of the Y chromosome triggers male development and, in the absence thereof, the foetus undergoes female development.

Of course, only students pursuing biological sciences in higher studies would get into details like individuals with XXY and XYY are said to be karyotypes males and individuals with X and XXX karyotype females.

No scientist since the 1930s challenged French endocrinologist Alfred Jost’s finding that the presence of testosterone was required for Wolffian duct development in the male rabbit.

None said that the sex-determining region Y protein (SRY) should not be considered a sex-determining gene on the Y chromosome in the therians such as placental mammals and marsupials.

This, even as scientists agreed that not all male-specific genes were located on the Y chromosome.

Platypus, for example, uses five pairs of different XY chromosomes with six groups of male-linked genes.

In the species, the anti-Mullerian hormone is the master switch. But then, the subjects are human beings, not monotremes, in the CJI’s case.

The graduate in economics and mathematics that the CJI is, he was expected to appreciate at least the rudimentary lesson in biology.

The X and Y differentiation is, after all, in the syllabus of Class IX biology — both CBSE and ICSE — a mandatory subject for all students before they part ways in science, commerce and arts streams at the higher secondary or undergraduate levels.

And if Justice Chandrachud forgot what he had learnt in school, he could have summoned and consulted experts in the subject that he has no expertise in.

Taking a cue from the hearings in the Ayodhya case in the Lucknow Bench of the Allahabad High Court, if historians and archaeologists were asked to establish their academic credentials to prove whether the then-disputed structure was Ram Janmabhoomi or Babri Masjid, it must be asked why the CJI should not consult biologists before deciding what determines the identity of an individual as a man or a woman.

The information furnished two paragraphs above is not trivia. Products of humanities are seen throwing around jargon from science in a bid to sound credible.

LGBTQ+ activists and reporters who cheer them use the term “hermaphrodite” while reporting court cases on transvestites.

They do not have the foggiest clue that a hermaphrodite is an animal like the leech that does not need a mating partner for reproduction, as it is a sexually reproducing organism that produces both male and female gametes.

One never knows when the judiciary gets inspired by such law correspondents and picks biological terminology that the judges, who studied anything but biology before they got their degrees in law, are as much ignorant about.

The situation also begs the question why the fallacies of wokeness are not visible even to those who view the world romantically with the ruse that they are being fair to one and all and granting liberty to everybody.

Already, there are awkward stories of men identifying as women and then demanding their inclusion in female sports disciplines and defeating individuals born as women.

The wokeness gets more disconcerting when a man, claiming to be a woman, barges into a women’s locker room or lavatory in a public place.

In 2018 in the United Kingdom, a transitioning Karen White admitted to sexually assaulting women in a women’s prison and raping two other women outside jail.

The Ministry of Justice of the UK had placed him in the women’s cells because he self-identified as a woman! The worst of cases follows.

The story of Sage from Virginia — naming a rape victim with her consent is legal in the US — who was born a girl but identified as a boy at the age of 12 under the influence of some transgender demagogues, is the most frightening.

Getting bullied at school for being a trans did not deter her and the school management did not even inform her parents of her sexual preference when she said she should be called Draco, a boy’s name. Until she insisted on using the girls’ bathroom, that is.

A September 2021 report reads: “She had been kept in a locked room, where she’d been held captive and trafficked for sex after running away from home just over a week before.”

Sage-turned-Draco had run away because her parents considered her a girl, as did her school that otherwise held Christian beliefs supreme.

When first caught by the authorities, she had identified herself as a boy and so they kept her in a cell where other inmates were biological males.

Even when the worst that can be imagined happened to her, she refused to go back to either her parents or her grandmother for fear of being raised in a society of ‘binaries’.

But more than individuals, societies and schools, what should be our target is the state. In Sage’s ordeal, the biggest culprit was the judge that refused her parents her custody because, as a matter of habit, they were referring to her repeatedly as Sage during the hearings.

Under the leadership of the current CJI, a Harvard Law School product, how far are Indian judges from emulating that American judge?

Justice Chandrachud is going to be the occupant of the office of the CJI for a pretty long time — appointed to the post in November 2022 to serve till November 2024 — unlike many of his predecessors, which only exacerbates the concern of the un-woke people of the country.

He is aware of the criticisms, of course. He has raised the issue that is bothering him in quite a few lectures.

Meanwhile, some social media influencers are being tried for “contempt of court”, a downright undemocratic, illiberal, anti-freedom but legal provision, for calling the Supreme Court unfair in a host of verdicts.

The Nightmare on Tilak Marg is going to haunt for long, with the Freddy Kruegers of law refusing to mend their ways while their jobs are protected by the nepotistic collegium system.

One does not pin much hope on the other wings of the state, the legislature and the executive, except bites from Law Minister Kiren Rijiju that bark but do not bite.

When the Supreme Court turned down the National Judicial Appointments Committee Act passed by Parliament, MPs could have hit back, saying if the judiciary did not cooperate with the legislature, the executive would not execute the courts’ orders either.

In that atmosphere of mutual non-cooperation, the Constitution would have collapsed and the state failed, threatening the judges to relent.

Nothing of the sort happened. The woke in black coats would hence continue to keep the scared population awake.