Citizens Expect 'Spine, Spine & Spine' From Judges : Professor Upendra Baxi

On being asked by Justice Gautam Patel, former judge of the Bombay High Court, what are the three things that a citizen wants from a judge at any level from the Indian judiciary, legal scholar and Professor Upendra Baxi amusingly answered: "Spine, spine, [and] spine!"

Professor Baxi was speaking at an event organised by The Leaflet 'Constitution Circa 2050' in which Justice Abhay S. Oka also gave his opening address. 

While Justice Oka spoke on how Constitution of India and fundamental rights are often discussed in elitist gatherings and not where its actually needed: at grassroots levels, Professor Baxi briefly on topics like basic structure doctrine, Sabrimala review, 'bail is rule, jail an exception', and the Ayodhya judgment. 

Speaking on the Sabrimala judgment which was referred to a larger bench, Professor Baxi stated that as per the Rules of the Supreme Court, the review has to go before a bench which gave the judgment. The judgment was heard by the bench of Former CJI Dipak Misra, Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra. 

After the judgment, 50-odd review petitions were filed in which the overarching questions were raised with respect to how the Sabrimala judgment could impact women's access to other religious places such as Muslim women's right to enter mosques, Parsi women's right to enter fire temple after marrying a non-Parsi and the practice of FGM in the Dawoodi Bohra community. The review was heard by a bench of Former CJI Ranjan Gogoi, Justices A.M. Khanwilkar, Rohinton Fali Nariman, D.Y. Chandrachud and Indu Malhotra.

On November 14, 2019, by 3-2, the Court kept the review pending open but referred some overarching questions of law to a larger bench. The majority held that women's access to other religious places may conflict with the Sabrimala judgment and needs to be decided by a larger bench first. 

Eventually, a nine-judge bench was constituted and upheld the November 14 referral but the three issues on women's access to religious places and religious practices remain pending. It stated that referral to a larger bench on the question of law could be raised during a review petition.

Professor Baxi: "In short, the Sabrimala judgment was unwanted and a disaster because it is asking what is essential practice of a religion is to be decided by a Court or somebody else. All these 7 or 9 questions that were referred to a larger bench in the name of a judicial disciple! The highest act of judicial discipline that you have seen in the Supreme Court of India is a judgment which violates every judicial duty and cannon of rectitude."

He added: "I have requested several judges of the Supreme Court to publicly say withdraw the order of the nine-judge bench. I have no difficulty in making this public announcement." 

Professor Baxi also referred to the 2013 judgment of former Chief Justice of the Gauhati High Court Justice Ahmed Ansari, who declared the formation of the Central Investigation Agency unconstitutional because it did not have its roots in a constitutional provision or a law by the Parliament. It was through an executive order of 1963. 

Professor Baxi said that Justice Ansari Thomas Jefferson's famous words "When the people fear the government, there is tyranny. When the government fears the people, there is liberty".

The then Attorney General Goolam E Vahanvati rushed to the residence of the then CJI P.Sathasivam, as the Courts were closed for holidays, and the Court eventually stayed the order of the High Court. The stay operates till date.

He added that there are practical grounds why CBI is unconstitutional but this case is never going to come up before the Supreme Court.