The Supreme Embezzlements: Public Interest Litigations and Gender Justice in India

Abstract

Public Interest Litigation occupies a prominent space in the Constitutional history of Supreme Court. The aspiration of the court to transform itself from Supreme Court of India to Supreme Court for India and Indians by extending its accessibility, scope and fashioning new remedies for the marginalized and poor has received critical claim and now skepticism.

In India, Religion is a contentious issue which when coupled with politics, has been a source of constant discord. The tenuous relationship of state and an individual’s religion has been adjudicated by the Supreme Court having a far-reaching effect. The position of Indian Nation State with religion is far more complicated than any other secular democracy in the world.  The religious autonomy of an individual and his relationship with his god is categorically recognized by the courts in India.

In case of Shayara Bano, a Muslim woman who was divorced through the impugned practice of triple talaq, there was question raised on the justiciability of the remedy being fashioned by the Court in the minority opinion.

In the case of Indian Young Lawyers Association & Ors. vs. The State of Kerala & Ors. popularly known as the Sabarimala Case, the Supreme Court, in the name of public interest went on to decide the legality of a centuries old tradition barring women in the menstruating age to enter the temple. Apart from the various issues deliberated by the court, one cardinal issue was pertaining to the locus standi of the petitioner to stand before the court acknowledging the far reaching ramification and implications of the judgment across all places of worship in the country.

In the third case of decriminalization of adultery, the petitioner is not an affected person but rather a non-resident Keralite hotelier in Italy.[1] The locus of the petitioner has not been discussed by any of the judges or even the name mentioned. The judges straightaway headed into the legality of the provision and declared it unconstitutional unanimously.[2] What the court answered was rather an academic question than a legal one.[3]

This paper aims at analyzing the recent judgments which entered the Court as PIL and adjudication upon the same by secular court.  The case analysis also includes an insight on the earlier precedents as to who can approach the court in public interest with respect to the matters pertaining to religion.

The first part of the paper is devoted to the origin and evolution of the PIL especially the democratic positioning of the Court in pre and post emergency phase. The second part of the paper is concerned with the cases of PIL for women rights, gender justice and gender equality before Supreme Court till the three cases aforementioned. The third part shall deal with the discontents of the PIL, considering PIL as a structural and institutional innovation. The fourth and last part carries the concluding remarks by the author.