Judgement

But the court didn’t stop at scrapping this. “The court went a step further, when it said adultery was like other matrimonial offences, these are personal wrongs and not public wrongs therefore outside the criminal law. Now will it cover bigamy and polygamy also? Will it cover cruelty? Will it cover dowry offences – if this was the case, the judgment would be wholly anti women,” said Jaitley.

The judgment could, he observed, change the Indian family system into a western family system where the fragility of marriages may increase. And because India does not have the kind of social security systems the West has, and because it doesn’t have the kind of divorce settlements the West has, this judgment could actually be antiwomen and even lead to their “destitution,” Jaitley said.

Not everyone agreed. Senior advocate Sanjay Hedge said: “The minister seems to harkening back to the glorious past and to values which are these days called ‘sanskari’. It reflects a patriarchal mindset which makes a marriage wholly dependent on ‘purity of women.’ Constitutional morality has outpaced such thinking and the judgment is much more reflective of the times India actually lives in.”

The court’s verdict on the entry of women of all ages into Sabarimala came in for special criticism from Jaitley who said the court has been selective in targeting one practice.

“If you want to take a progressive step under article 14 and 21, it will apply uniformly against all religions. It cannot happen that you select a practice and apply it because that will have many social consequences in a pluralistic society like India,” Jaitley said. For instance, it could mean polygamy, oral divorce, or other religions where women are not allowed entry into places of worship are no longer allowed, the minister added.

“If you want to be progressive and bold, you can’t be selectively so,” Jaitley said. “If you are willing to proclaim you must be willing to strike -- not only willing to strike at one target but willing to uniformly strike.”

Jailtely attacked the 1952 Bombay high court judgment of Narasu Appa, which he described as one of the worst judgments ever delivered in India. He explained that this judgment holds that all laws and tenets, including personal and religious ones, must be tested on the touchstone of fundamental rights. According to Jaitley, the views expressed by MC Chagla and PB Gajendragadkar, whom he described as two legendary judges, held that this touchstone should not apply to religious practices and personal laws. “We have to make up our mind,” he said.

Jaitley said the right opportunity to clarify this issue and overrule that judgement was in the Triple Talaq case where the court, in August last year, said the practice of instant divorce was illegal, but “the reasoning was that the practice was based on arbitrariness and hence we quash it”. The court sidestepped “the issue whether the personal laws and religious practices must also abide by the constitutional guarantees.” One of the judges flagged this, he added, but said “we leave this open for a future case.”

In the Sabarimala judgment as well , one of the leading judgment alluded to this and seemed to make an argument for overruling the 1952 judgement but stopped short of doing so. The judgment said “we leave it open for a future case”, Jaitley said.

Former Supreme Court judge Markandey Katju wrote in a Twitter post: “There are thousands of temples, mosques, and gurdwaras in India, many with their own rituals and practices. There are some temples which do not permit entry to women, and some to men. Should courts now start interfering in all these?”