The actual point of law raised by the appellant in both these cases was badly advised. Draupadi was damned whichever way her question was answered. If her husband had not lost himself first, then it would imply that he had a right to stake her, in which case her tormentors would be legally entitled to humiliate her. If her husband had lost all rights to her, then her status would be far worse, because she would be akin to a widow, and widows were treated terribly in Hindu society. What was needed was for Bhishma not to ponder the legalities of her question but to step up and do the right thing, which was to land a mighty sock on Duhshasana's jaw (or smite him with his mace if that was more in keeping with the mores of the time) and send him scurrying off like a rat.
Rather than debate the issue in narrow legalistic terms, the legal luminaries in each of those cases should have been more concerned with what was right, rather than clauses and subclauses of the law.
This is the Supreme Court, not a lower court that simply applies the law. The Supreme Court has the power to revisit the law, if necessary to overturn precedent and to re-interpret its letter to better obey its spirit.
It has done this before. In the early nineties, the Supreme Court forced the government to implement its clean air policies and thereby significantly reduced pollution levels in Delhi, even setting up its own expert committees to provide detailed advice. Under Justice PN Bhagwati, the Supreme Court had a welcome focus on the basics, i.e., justice for the common man. Justice Bhagwati innovated the concept of "epistolary jurisprudence", wherein a common man could write a simple letter to the court (i.e., there was no need for a writ petition drafted by a trained lawyer), and the court would be obliged to look into the matter to ensure justice was done. This started the era of Public Interest Litigation. Justice Krishna Iyer once said, “Judicial activism gets its highest bonus when its orders wipe some tears from some eyes”.
There is, after all, a far more important issue at stake here than the general's date of birth, his date of retirement, or even his honour as he chose to frame his case. It is that India's institutions are systemically flawed in that they are not concerned with establishing the truth but rather in ensuring adherence to procedure. If something is procedurally admissible, then no eyebrows are raised even if horrific injustice is thereby done. The court should have pointed this out and rapped the army and the ministry of defence on the knuckles for not pursuing the truth when they were informed of a discrepancy in their records. It is especially shocking that an institution like the army would resort to bargaining by issuing threats of withholding promotions and postings rather than set about establishing the truth with alacrity once a discrepancy was pointed out. Unfortunately, the two judges in this case have turned out to be far smaller men than Justice PN Bhagwati. They missed the chance to improve the system for the common man. After all, if this can happen to a general, is any citizen safe?
The important questions for the country that remain unanswered are: