Sabarimala review order violates Supreme Court rules: Professor Baxi

Supreme Court had held that legal issues in pending cases related to the entry of women into mosques and the denial of access to fire temples for Parsi women who marry outside the community should be settled by a seven-judge bench before the Sabarimala case can be decided.

The late justice Sunanda Bhandare was one of the earliest feminist voices in the legal fraternity, legal scholar and former Delhi University vice-chancellor Upendra Baxi said on Friday, delivering the 25th Justice Sunanda Bhandare lecture.

Attorney General KK Venugopal, advocate Murlidhar C Bhandare and Emeritus Prof of Law Dr Upendra Baxi at the 25th Justice Sunanda Bhandare lecture on Friday.(Raj K Raj/HT Photos)

Referring to justice Bhandare’s pioneering role, first as a lawyer and subsequently as a judge, in the sphere of women’s rights, Baxi said the lecture series lasting into its 25th edition was an achievement.

“This lecture has saved Justice Sunanda Bhandare from unjust amnesia,” said Baxi.

In his lecture, Baxi referred to Justice Bhandare’s role as a lawyer in the Bai Tahira case way back in 1979. The case was about divorced women’s entitlement to maintenance under Section 125 of the Code of Criminal Procedure (CrPC). In that case, Justice VR Krishna Iyer of Supreme Court had ruled in favour of divorced women.

The judgment in Bai Tahira case was, subsequently, quoted with approval in the landmark Shah Bano judgment in which the Supreme Court had held that divorced Muslim women are entitled to maintenance under Section 125 of CrPC.

“Much before Shah Bano, Sunanda Bhandare had filed a maintenance plea in Bai Tahira’s case. The case came (up for hearing) before Justice Krishna Iyer whose views were reconfirmed in Shah Bano”, said Baxi.

The 25th edition of the lecture was on the topic “How to Engender the Basic Structure Doctrine? The Elusive Future of Women’s Rights as Human Rights.”

Baxi went about the topic by referring to certain judgments of the Supreme Court which he said “feminised the Basic Structure doctrine”.

As per the Basic Structure doctrine laid down by the Supreme Court, the Constitution of India has certain basic features which cannot be altered or amended by Parliament.

Baxi said that the Vishaka judgment of 1997 was the first instance of what he termed “feminising the Basic Structure”. In that case, the Supreme Court laid down elaborate guidelines to tackle sexual harassment at workplace.

“Vishaka refers to various cases on Article 21 which is based on substantive due process. Vishaka is thus the first instance of feminisation of Basic Structure.”

Baxi then referred to recent judgments of the Supreme Court in the Triple Talaq case and the evolution of doctrine of constitutional morality as other examples of feminisation of the Basic Structure.

In the speech, Baxi criticised the recent judgment of the Supreme Court on the Sabarimala review petitions. In that judgment, the Supreme Court had held that legal issues in pending cases related to the entry of women into mosques and the denial of access to fire temples for Parsi women who marry outside the community should be settled by a seven-judge bench before the Sabarimala case can be decided. It will also rule on the practice of female genital mutilation among Dawoodi Bohras, ruled the court.

Baxi said that the Sabarimala review judgment was in violation of all settled rules and procedures of the Supreme Court and a betrayal of Constitutional discipline. Connecting it to the lecture topic, Baxi said that the judgment defeminises the Basic Structure and was per incuriam (given in ignorance of settled principles of law).

Attorney General KK Venugopal presided over the function.