The 25th Memorial Lecture

Every year, since its inception, the Foundation invites an eminent person to deliver a lecture on the subject of Women under Religious Fundamentalism.
Prof. (Dr.) Upendra Baxi, delivered the 25th Justice Sunanda Bhandare Memorial Lecture on "How to Engender the Basic Structure Doctrine?: The Elusive Future of Women's Rights as Human Rights" on 29th November, 2019.

It is a great privilege to have been asked to deliver the 25th Justice Sunanda Bhandare Lecture. She is justly known as India’s early feminist voice on the Bench. Nayantrara Sahgal in her moving talk last year quoted her as saying that the task of judges in developing societies is to be and to remain ‘sentinels of progress’, and Sunanda spanned many judicial generations from Patanjali Sastri to Krishna Iyer in this pointed remark. It was Justice Arjan Sikri, who in his introductory observations, pointed out that instead of metaphysical approaches to justice, she preferred a pragmatic approach which made her both ‘justice-oriented Judge’ and in the eyes of younger Bar a ‘mother judge’.

But what made Sunanda a perfect judge was her insistence on being cautious in ‘choice of words’, as recalled by Justice Madan Lokur (on the occasion of 23rd Memorial talk on ‘patriotism and jingoism’)’. This advice is even more relevant in these global days of hyper-partisanship and political and social polarization.

We all need to move away from words that wound and words that bind to words that heal constitutional and human rights futures. Indeed, to recall the immortal message of Robert Frost:

'Some say the world will end in fire,
Some say in ice.
From what I've tasted of desire
I hold with those who favor fire.
But if it had to perish twice,
I think I know enough of hate
To know that for destruction ice
Is also great
And would suffice.'

Though she bore valiantly contumacious slings and arrows of an irate and unprofessional section of the Bar, Sunanda’s quest is even more relevant now then it was in her time. A related publicly invisible aspect of Justice Bhandare was her ability to persuade eminent members of the Bar to consider elevation: Justice Madan Lokur, for example, recalls that she 'was the first to have offered and convinced him to take up judgeship'.

I was pleased to hear from Murli Bhandare that even before Shah Bano, Sunanda had filed a maintenance petition for a divorce Muslim woman Bai Tahira (which he argued as a senior counsel). Justice Krishna Iyer directed husband to pay maintenance1, invoking the ‘meaning of meanings’ from ‘from values in a given society and its legal system’ and the ‘compassionate relevance’ of Article 15(3) which mandated that the ‘benefit of doubt, if any, in statutory interpretation belongs to the ill-used wife and the derelict divorcee’. This decision was followed in Shah Bano’s Case. which claimed more political attention and became more famous because of the contention that the Muslim Law may not thus be interfered with.

I may here say that dear Sunanda would have been very happy that the Foundation in her honor has been very active in promoting access to justice and good life of the people living with disabilities. In a 2016 decision, Justice Dipak Misra (speaking for himself and Justices A.M. Khanwilkar and Mohan M. Shantanagoudar] lamented the glacial pace of action by the State and while appreciating the new disabilities policy and the law (of 2016), the Court cautioned the State that ‘[i]mmediacy of action is the warrant of the day’ and issued a slew of judicial directions. The struggle for justice is always confronted by the overproduction of social indifference and we all know how much of an uphill struggle it is India, even today, to have progressive good laws implemented. May I extend good wishes to all the ‘indignation entrepreneurs’ 4 in the Foundation for a good deal of strategic staying power in pursuit of constitutionally just but historically still lost causes.

I must say at least two more things before moving on to my theme today. First, this is one of very few successful memorial lecture series. I have always believed that one may do justice to the living only when one learns to protect the voice, memory, and rights of the dead. The astonishing regularity of memorial lectures is a monument to justice for the constitutional have-nots and it has been made possible by Murli, and the family, by their unswerving dedication and enthusiasm. I hail this cultural achievement in a runaway globalizing world characterized by acts of assassination of memory. I hasten to add that while I do not advocate any form of ancestor worship, I also oppose a world of unjust amnesia—a world without memory or history. Second, I must say that I first come to know Murli as a teacher in Government Law College, Bombay. In the idiom of the now contemporary generation, then unavailable to us, he always appeared to us a ‘cool dude’, elegant and unflappable. What still is vivid in my recall is the image of weekend late afternoon when I visited their home in South extension to find both of them reclining on an armchair and reading a book! To be devoutly fond of good reading, and yet to do justice both to the judicial and legal professesion is a yesteryear virtue in need of a resolute revival. The affection we developed then has lasted till today.

Quite frankly, I have nominated this topic because Murli Bhandare gently nudged me to a theme more directly related to gender justice. But it has turned out to be more than a mere brainteaser. The first reaction is: what has gender justice to do with the constitutional doctrine of the basic structure and the essential features which limited the power of Parliament to amend the constitution? Most amendments relate to governance and development and very few pertain to gender justice. Horizontally, the basic structure decisions affect us all as citizens; the question is how these specifically serve the constitutionally protected groups or socially vulnerable peoples.

True, Kesavananda Bharathi was delivered in 1973 and, there were no women justices then at the Supreme Court, and a rare presence also in High Courts despite the fact that the Indian Constitution was adopted in 1950. And (with respect) there did not exist many exceptions to the rule by patriarchy (which we all synonymized with the rule of law). Moreover, hardly any Justices though biologically male were culturally female!

The emergence of basic structure doctrine thus rarely directly addressed 'the male in the State' (to borrow here the phrase of political theorist Wendy Brown).5 All the same, it was an important decision and I have always said that it is the Constitution of India, no matter what the Government of India press may say! But the opinions were severely divided. As is well known, the Sikri-6 decided on the implied limitations on amending power; the Ray-6 held for parliamentary sovereignty, with Justice Khanna then ambivalently hovering at the outskirts! And, as the feminists have always deeply understood this truth, it is rarely the case that when men disagree with or fight each other, the cause of gender justice stands enhanced. Before I go any further, let me reiterate that I have expressed myself always in favor of the basic structure limitations on the amending power. I am not a votary of illimitable parliamentary sovereignty, even if explicitly named, as did Ms. Indira Gandhi in the 24th Amendment, as 'constituent power'.

My reason for this is not political but conceptual. In a written constitution, all powers are constituted powers, and no power is constituent or sovereign. No doubt, they are supreme within their own jurisdiction but for that, or any other, reason they are not sovereign. This finality of judicial review has proved a very critical societal resource for the then present and the future of Indian constitutionalism. But at the same time this does not make the Supreme Court, or though it the social movement or NGOs, the new unelected or non-representational sovereigns. Each institution wishes to be above every institution, but no one is above the Constitution— this is the abiding mission, mood, and message of the basic structure doctrine.

No one carefully reading the decisions of the Apex Court may honestly say otherwise. Of course, one may form interested opinions without a careful study of judgments and very often caricatures of what Justices have decided is presented as a political foil. But I make the mistake of closely studying judicial decisions and discourse and have often been attacked for that vice! I agree that this perhaps not the best mode of living well! But as a law academic this what I think I must do and I have recently floated the notion of ‘demosprudence’ which insists that Justices of the Supreme Court especially, but all appellate Justices, are co-governors of the Nation.

Only creative arbitrariness is allowed in any form of governance; uncreative arbitrariness is a passport to the destruction of the constitutional order. There is a lot of evidence supporting the view that had Justice Sunanda Bhandare been with us today, she would have agreed with this statement.

Before I begin to discuss the main theme, let me tell you the brief story of a learned Chief Justice of India who released a book entitled Engendering Law: Essays in Honor of Lotika Sarkar. I am told (I was away at Warwick University then) reliably that learned Justice constantly referred to this book as ‘Endangering the Law!’ From this tongue of slip, there follows a whole ideology of patriarchy: to engender is indeed in many ways to endanger the law! Is there any other way?

But I do not wish to endanger the basic structure doctrine! I just wish to feminize it a bit. This may mean two things at least. One, to see whether and how the women’s perspectives of gender justice have been brought into it and, two, are women’s rights as human rights an integral part of the basic structure?

To respond to these questions, one has to assume that feminization is a good thing in itself. And if you believe, as I do, that to be a woman is a task of being and remaining human, feminization basically questions the governance of sexuality and dignity crystallized around heterosexuality as a sovereign norm. If so, LGBTQIS people may also be included in the concept of feminization. I do not gainsay that women’s movement were, and are, in the forefront of struggles of sexual minorities, but I myself see little theoretical advantage in limiting the concept of gender justice only to women.

I will not usurp your time to narrate the law and jurisprudence of the basic structure doctrine. But it is important to know something about the judicial generations of the many interpretations of the basic structure doctrine. Far from it being limited, as prescribed in the charismatic moment, to constitutional amendments it has now extended to legislations, Presidential and Gubernatorial discretionary power, power to declare President’s rule over states, power to do complete justice, and to the technology of constitutional construction, statutory interpretation, and administrative action. It has even informed the principle of legisprudence and conceptions of judicial duties; in short, yielding to a social fact that justices of the Apex Courts have become co-governors (a new demosprudence) of the nation, despite occasional outcries of judicial overreach.

I think that the first feminist incursion in the basic structure doctrine occurred with the heroic way of reading sexual harassment at workplace in the unanimous twelve paragraph decision in Vishaka on August 13, 1997 (CJI J.S. Verma, with Justices Sujata Manohar and B.N. Kripal). The Vishaka discourse was in a way the judical edition of the Open Letter to Chief Justice of India, addressed by four law academics, which marked the birth of systemic accountability of the judiciary for freedom from violence for all Indian women.7 This short and slender decsion packs a lot of gender justice wisdom and constitutionalism into it and lots more of courtcraft in judgment writing, which must remain the envy, ever since, of the succession of Justices and legal academics.

The paradox is that though that the decision incorporated gender justice as an essential feature of the basic structure the text, however,nowhere does it say so explicitly.8 This raises two questions at least: One, why so? And second may we still read the decision as doing precisely doing that?

That decision was, as you no doubt know, incident of alleged brutal gang rape of a social worker in a village of Rajasthan. While that episode was subjected to separate criminal action, it was considered as a situation of the hazards which a working woman is exposed, the ‘depravity to which sexual harassment can degenerate’ and as calling for ‘the urgency for safeguards by an alternative mechanism in the absence of legislative measures’.9 And the Supreme Court struggled valiantly ‘to find an effective alternative mechanism to fulfil this felt and urgent need’.

Recognizing sexual harassment at the workplace as a ‘recurring phenomenon’ and the importance of ‘availability of a ‘safe working environment’, the Court acknowledged that ‘the primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive’. Since they had manifestly failed to act, the Apex Court was duty-bound under Article 32 to intervene in fulfilment of its constitutional obligation to enforce the right to constitutional remedies.

Constitutional duty and discipline required that recurrent violations of ‘fundamental rights of women workers under Articles 14,19 and 21’ be met, and combatted, by ‘some guidelines… laid down for the protection of these rights to fill the vacuum in the existing legislation’. The Guidelines were, importantly, evolved through a consensus by all parties before the Court. And the decsion invoked two discrete grounds of judical review powers: first the creative demosprudence of the Supreme Court in the construction of Article 21 rights to life and liberty so as to specially protect and promote the basic value of freedom as life, and living with, dignity (gender justice implicit ‘in Articles 14, 15, 19(1)(g) and 21 of the Constitution) and second to bring into conformity any “International Convention not inconsistent with the fundamental rights and in harmony with its spirits’

Apparently, the Court thought that a reference to the basic structure and its essential features was not necessary as available inter-party consensus was adequate to procced in the important task of prescribing guidelines, where no law so far thus existed. One may then contend that any invocation of the basic structure was uncalled for.

Yet, to say this is churlish. Puny comments will not do in the face of amighty judicial decision which expounded gender justice in general and addressed the endangering workplaces in particular . It remains possible, I reiterate, to say that this landmark decision was indeed a first step towards feminizing the basic structure and essential features doctrine. As a matter of constitutional law, this can be said because Visakha relies on the very decisions which invoked that doctrine and justified the expansion of constitutional human rights ushered in by demosprudential social action litigation (always to be distinguished from ‘public interest litigation’).15 All too often, demosprudential adjudicative leadership remains based on ‘rights revolution’ that births the very basic structure motif.

We must take note of the significant social fact that the second woman Justice, who served the Supreme Court for five years, co-authored that decision; the recent observations of Justice Sujata Manohar on the need to further strengthen the law warrant anxious and careful attention.

I think that the second major move towards feminization of basic structure occurs in Shayara Bano Case 17, although direct references to the basic structure do not leap to the eye. The discussion of the entire case18 lies beyond the scope of the present conversation but is worth saying that Justices Khehar and Abdul Nazzer take the stark view that what may be called personal law is not at all subject to the constitutional discipline of Part 111 rights, including the right to constitutional remedies.

This view then marks a retrogression from Vishaka decision. This is a deeply unfortunate constitutional reading and one could not but help wishing that the ‘majority’ in that decsion (howsoever assembled) would have more articulately invoked that the basic structure. If gender justice, as it ruled, is the core human right, judicial departure from it does not deserve a warm welcome!

The issue is not faith versus the Constitution but rather faith under the Constitution. Or, to put it differently, what we have is conflict of constitutional faith (of civic religion as Robert Bellah put it) with religious faith. Do Justices who swear an Oath of allegiance to the Constitution as by law established under the Third Schedule (prescinding here the questions about how can mere law establish a Constitution) have any other choice than to proselytize constitutional faith?

The learned opinion delivered by Justice Rohinton Fali Nariman (also on behalf of Justice Lalit) declares the triple talak invalid as being ‘manifestly arbitrary’ under Article 14 of the ‘Constitution ‘in the sense that marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it’ and their Lordships ruled, therefore. ‘the 1937 Act as an existing law in force to be void… on the narrower ground of its being manifestly arbitrary’ (leaving aside the larger question of its being ‘discriminatory’).

The point here is not the larger issue as to whether talak e biddat was recognized as valid by the customary law of Sharia or by the 1937 Act continued as a law in force by the Constitution but rather whether it is violative of the basic structure. The Court does not directly deploy this language but the roots of ‘manifest arbitrariness’ lie therein!

We now turn to the dynamic conceptions of CM (constitutional morality) which to my mind is an extension of the basic structure doctrine. The Apex Court has identified the conception with that of public morality (PM). But if one were also to designate by PM something else as ‘popular morality’ (call it PM2) something prior to, and even conflicting with CM, the CM has to prevail over PM2, always and everywhere. One can say that PM2 pre-existed and also coexists with CM. Surely it exists a such but the issue before courts is what is to be done when PM2 is in conflict with CM?

PM2 must often yield to when it is against CM as provided by specific provisions of the constitution, as with Article 17( prohibition of ‘untouchability),23 (practices of ageistic serfdom),or 24 (child labor); the Constitution imposes a duty on the State to protect and promote these rights. Or it may offend the ‘spirit’ of the Constitution as gathered by clusters of provisions in Part 1V (directive principles of state [policy) or fundamental duties of all citizens). The tadeonal meaning has to be derived from a more limited meaning, referring us to the sparse invocation of this concept in the constitutional text.The ‘spirit’ can also de distilled from the perambulatory enunciations of the goals and the destiny of all citizens and structures of governance and development.

PM2 may also be the basis of emulation of the constitution. The first, and the widest meaning (following Dr. B. R. Ambedkar) signifies the development of an ethical sentiment among people at large that revers the Constitution and becomes almost “a natural sentiment”. The second is a similar expanded meaning is which governance by all branches of the State is adjudged from the perspectives of growth or decay in popular morality. The third is the extended meaning (which I have provided) which says that constitutional morality is writ large on the text of the Constitution and judicial interpretation of it.

The first articulation of constitutional morality in recent times occurs with the Naz decision of Delhi High Court. It decided that ‘popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21’ because the former ‘as distinct from a constitutional morality’ is ‘derived from constitutional values, is based on shifting and subjecting (sic) notions of right and wrong. If there is any type of "morality" that can pass the test of compelling state interest, it must be ‘constitutional morality’ and not public morality”.

The Supreme Court in Manoj Kumar v Union of India continued with this dichotomy but with some new interpretive concepts such as ‘good constitutional governance, “purity” of the elections, ‘constitutional ‘trust’ and ‘constitutional renaissance’. The enunciation of these related concepts meant that CM was construed as resource for protecting and promoting the basic structural aspect of ‘democracy’. And this decision highlights ‘reverence for the constitutional morality’: In Sabrimala, Chief Justice Dipak Misra (with Khanwalikar J.),further said that any judicial view taken ‘by the Constitutional Courts must be in conformity with the principles and basic tenets of the concept of structure of this constitutional morality’. Justice Indu Malhotra famously dissents but she does not doubt that the concept is ‘instructive in ascertaining the true meaning of the Constitution, and achieve the objects contemplated therein’. Dr. Justice Dhananjay Chandrachud goes a lot further when he integrates CM with the four cardinal values of the Preamble (justice, liberty, equality, and fraternity) and says that CM must be ‘firmly rooted’ in these preambular ‘postulates’; he also relates CM to the concept of ‘ constitutional culture’ which ‘each individual in a democracy must imbibe’. Constitutional morality does not ‘pursue either a religious theocracy or a dominant ideology’ but rather ‘a society of plural cultures’

There is no doubt that constitutional morality thus pervades ‘constitutional culture’ and militates against gender-based discrimination. And that in turn is the essence of basic structure. No doubt, critics of ‘constitutional morality’ feel the need to assail both these twin concepts. Whether, and how far, this is a cogent criticism may be a subject of lively debate in some circles. But I personally think that the criticism is misdirected and at any rate it is too late in the day to raise doubts about this doctrine which is now a settled aspect of constitutional law, interpretation, and jurisprudence. Allow me to say once again that if the basic structure and constitutional morality are concepts to be doubted, we have also to say that decisions like Navtej Singh Johar and transgender rights are also morally mistaken. But are they?

I must here now end the survey of cases (manifestly incomplete) by referring briefly to the very recent reference of matters to a larger Bench. In Kantaru Rajaveeru, delivered as recently as 14 November, (a Bench comprising Ranjan, CJI, A.M. Khanwilkar, Indu Malhotra, with a dissenting opinion by Rohinton Fali Nariman and Dr. D.Y. Chandrachud, JJ.) referred a slew of matters to a larger Bench.

What matters are to be placed before the CJI to constitute a bench of seven justices? First, all review petitions in Sabriamala Case are subjected to the larger Bench, along with admitted related writ petitions. Second, ‘the entry of Muslim women in a dargah/mosque’. Third, the entry of Parsi women married to non-Parsis and their entry into a fire temple. Fourth, issues relating to female genital mutilation in the Dawoodi Bohra community. This is an astonishing admixture of various matters: part-hard matters, new writ petitions, some old and recent matters which have been decided, some social action/public interest litigation matters, and review petitions.

The learned Chief Justice then outlines seven issues that a larger seven judge bench may conider, together with the apparent conflict between a 7-judge bench in the Shirur Mutt case and the Durgah Committee case. The larger bench may then also consider it appropriate to decide all issues including the question as to whether the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 governs the temple in question at all’. ’ Does all this necessarily mean as an affair of an irresistible inference that the review petitions and the fresh writ petitions may remain pending until determination of the questions thus indicated by a larger bench to be constituted by the Chief Justice of India?

The reasons for this referral to a wider bench are inchoate. Even granting that ‘a judicial policy befitting to its plenary powers to do substantial and complete justice’ and ‘for an authoritative enunciation of the constitutional principles by a larger bench’ is now due, how is this it to be achieved? Is ‘judicial discipline’ best arrived by this means, even if signifies that the review petitions on decided cases are either prevented from being heard by the competent Bench, or even opened up on for substantive reconsideration? Will a larger bench not at all reflect ‘the plurality of views of the Judges converging into one unanimous opinion’ and thus ‘ensure consistency in approach for the posterity’? May a future Bench not interpret, in different directions, the seven issues referred to them? Or is that power to be depleted or denied by a referring Bench? And can principled dissent be eliminated by a desire for authoritative enunciation?

It should also be noted that this reference is not (as any such reference cannot be) exhaustive. Decisions like Jalabhisek at a Digambar Jain Temple, or Santhara or ‘voluntary; euthanasia’ have registered evoked divergent judicial views on what counted as essential religious pratice under Article 25. Should these be somehow covered by any act of authoritative interpretation? Should the Court ascertain all such information from the High Courts and in advance of appeals filed before it also refer these matters to a larger Bench?

This kind of referral has never happened in India before and my humble gratuitous advice, as a citizen, to the incoming Chief Justice is not to further follow this decision which is itself per incuriam. The Supreme Court has not been permitted by the Constitution to do what it may please. In fact, no institution is free to do so; everyone has to act within constitutional competence

It has, first, no power to seek of itself an advisory opinion; that power belongs to the President of India and the Court may further justifiably decline, as indeed it has in the past, to procced with the reference. Second, under the present court rules and precedents that implement these, the Chief Justice, and the Court, lacks the power to ‘stay’ a review or leave it to a future Bench to dispose it of by ruling on wider aspects of adjudicatory policy. Third, it is not open to the Court to entertain diverse writ petitions on a matter already disposed of by a competent bench; only an exceptional regime of a curative petition may do so. Fourth, pending petitions have to be disposed of following regular procedures of the apex Court duly prescribed by the rules of the Court or by its prior precedents.

All this may sound hyper- technical to the non-lawyers but a modicum of constitutional discipline on judical performance remains the best guarantee of judicial accountability, responsibility, and even responseability. None of the adjudicatory policy considerations indicated by the learned Chief Justice would seem to suffice in the final result.

Rohinton Fali Nariman (also on behalf of Justice Dhananjay Chandrachud) clearly maintains, in a dissenting opinion, that the ‘extreme arguments’ urging that belief and faith are not judicially reviewable’ are ‘arguments that fly on the face of Article 25’. That provision does not give ‘a carte blanche to one particular section of persons to trample upon the right to belief and worship of another section of persons belonging to the same religion’. May the Court itself suo motu activate this rare power as now sought to be done?

The unfinished agendum of gender justice, so dear to Sunanda, beckons women, the millennial victims of violent social exclusion to further pursue the agendum of women’s rights as human rights. The struggle for justice has to be renewed in every generation which brings new style and substance both to the labors of materiality of domination and the non-violent tasks of emancipation.

Justice Sunanda Bhandre would been second to none in endorsing the observations of Justice Nariman that the ‘“Holy Book” is the Constitution of India, and it is with this book in hand that the citizens of India march together as a Nation, so that they may move forward in all spheres of endeavor to achieve the great goals set out by this “Magna Carta” or Great Charter of India’.

Thank you for the gift of your brief but incandescent presence amidst us, dear Sunanda.