Supreme Court as change agent

Book review of Supreme Court

Among the major organs of state —- the legislature, the executive, sometimes the press, and the judiciary — the latter is usually considered the last word on governance. The preponderant impact and reach of the judiciary, particularly of the Supreme Court of India, is evident from some of its recent verdicts. Starting from the recent rulings on sedition, in which it held that “the expression of a view which is a dissent from a decision taken by the Central Government itself cannot be said to be sedition…”; to calling for tightening the norms for over-the-top (OTT) streaming services in the country and asking the government to consider appointing a Parliamentary Committee to look into the merits of the farm laws, the Supreme Court has prodded the government to be more introspective. This is, of course, notwithstanding the fact that there have been occasions that have provoked sharp criticism in the public domain concerning the apex court’s breach of the sacrosanct Laxman rekha between the executive and the judiciary.

Laws are dead letters without lawyers and the judiciary to interpret them. It is against this backdrop that the book Supreme Court, part of the Rupa Publisher’s series “Institutions That Shaped Modern India” and authored by senior advocate of the Supreme Court, assumes significance. This slim and compact volume divided into 25 chapters each varying from four to 10 pages pithily compresses the birth, evolution and case studies of the apex court’s major judicial pronouncements.

Reading the book on International Women’s Day, my attention was drawn to the chapter on “Gender Justice & Women Empowerment in India”. In this chapter the author recalls some significant judicial pronouncements of the Supreme Court of India that have set right gender discrimination in Indian society. 

For instance, in the judgment Air India vs Nargesh Meerza , the apex court held that although Article 14 permits reasonable classifications between groups, it does not permit classifications on the basis of gender. The issue before the court was the different retirement ages for male and female staff.  Further, female cabin crew were prohibited from bearing children, and compulsorily retired in the event of pregnancy. The Court struck down this rule on the grounds that it violated Article 14 and 16, and stated that such provisions were archaic, cruel and an insult to womanhood.

Supreme Court

Author: Ashok Panda

Publisher:  Rupa

Pages: 172; Price: Rs 395

In yet another case pertaining to “equal pay for equal work”, the Supreme Court in Mackinnon Mackenzie & Co. Ltd vs Audrey D’Costa  (1987), found that the disparity in pay was only on the grounds of gender and, thus, violative of Article 14. The apex Court in Vishaka vs State of Rajasthan  (1997) directed the government to protect women and ensure their dignity in work places. The “Vishaka Guidelines” that followed held the field for 15 years until Parliament passed the Sexual Harassment of Women at Workplace (Protection, Prohibition and Redressal) Act, 2013. These cases are only illustrative, and not exhaustive.

Citing one more example of the Supreme Court’s intervening role in correcting the gender imbalance in societal norms, the author cites the verdict of the Supreme Court challenging the Rule 3 (b) of the Kerala Hindu Places of Public Worship Act, which allowed  Hindu denominations to exclude women from public places of worship if such exclusion was based on “custom”. The Supreme Court in its verdict delivered in 2018 held that the Rule 3(b) was unconstitutional as it violated woman’s right to equality and right to worship.

In the chapter on “Protecting Public Interest”, the author alludes to the infamous hawala scam of 1990s, otherwise known as the “Jain Diaries case” in which several politicians and bureaucrats siphoned their ill-gotten money through this illegal money transfer mode; in exchange, lucrative government contracts and favours were granted. Investigative journalists pursued this scandal and in October 1993, writ petitions under Article 32 were filed in public interest with the journalist Vineet Narain taking the lead. In the petition, among others, it was alleged that the Central Bureau of Investigation (CBI) had “failed to investigate matters arising out of the seizure of the Jain Diaries”. It was against this backdrop that the Supreme Court directed the Central Vigilance Commission (CVC) to exercise a supervisory role over the CBI. This judgment led to several administrative reforms, including fixing the tenure of the CBI director at two years in order to insulate them from administrative control of the political powers.

This is, overall, a useful book for students and practitioners of constitutional law. But it should be noted that there are conspicuous missing links and references to some of the Supreme Court’s more controversial rulings — including the Ayodhya verdict — that created disquiet in the political mainstream.

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The reviewer is a senior fellow of the Indian Council of Social Science Research