Renowned legal academic professor Upendra Baxi is extremely critical of the Supreme Court's recent judgment on the review petitions filed in the Sabarimala issue.
Baxi argued the decision to refer the issue of women's entry to Sabarimala to a seven-judge bench and club with it other cases involving a clash between gender rights and the issue of faith is a violation of all settled rules and a betrayal of constitutional discipline.
Baxi, who delivered the 25th Justice Sunanda Bhandare Memorial Lecture in New Delhi on Friday evening, said the judgment passed by the Supreme Court on November 14 was “astonishing”.
Baxi said the whole exercise of referring the case to a larger bench is per incuriam. “The new Chief Justice of India (S.A. Bobde) should simply forget about the idea of the matter being given to a seven-judge bench,” he said.
Speaking on the topic How to Engender the Basic Structure Doctrine?: The Elusive Future of Women's Rights as Human Rights, Baxi said, “Such a thing has never happened in the history of the Supreme Court. It amounts to defeminising the Basic Structure [of the Constitution].”
The jurist was critical of the Sabarimala judgment since he felt it amounted to overruling constitutional morality, which according to him is the same as overruling the Basic Structure of the Constitution. He said constitutional morality was above any religious thought or dominant ideology.
The first time, the Supreme Court looked at women's rights as part of the Basic Structure of the Constitution was in the Visakha judgment,
Baxi said. “Not a single time the term Basic Structure is mentioned in the judgment. But the court enlarged Article 21 in the judgment, and hence the case must be read as feminising the Basic Structure in a big way,” he said.
However, Visakha refers to various cases on Article 21, which is based on substantive due process. Visakha is thus the first instance of feminisation of Basic Structure.
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The second instance of the engendering of the Basic Structure of the Constitution was the triple talaq judgment, Baxi said. “This decision was also based on Basic Structure. The court says Talaq-e-Biddat is constitutionally wrong. Why is it wrong? Because it is manifest arbitrariness. And the Basic Structure is a mortal combat against manifest arbitrariness,” he said.
Attorney General K.K. Venugopal, who presided over the lecture, said he disagreed with Baxi on the view that constitutional morality superseded other considerations. He called it an “unruly horse”. Venugopal said it was like mercury that slips through the fingers.
“Look at the PIL judgments of the Supreme Court. They legislate using it. With constitutional morality, there are no boundaries, no limits for the court. It can decide whatever whichever way it wants,” Venugopal said.
