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Commenting on “uncalled for” remarks by Gujarat High Court judge Justice Sameer Dave on pregnancy and child birth even as approvingly referring to Manusmriti in this context, the People’s Union for Civil Liberties (PUCL), Gujarat, has stated that such practice of citing scriptures and religious texts “could negate the very basis of our constitutional jurisprudence.”
In an open letter addressed to the Chief Justice of India (CJI) and the Gujarat High Court Chief Justice, Adv Govind Parmar, president, and Pankti Jog, general secretary, PUCL, say, Manusmriti has “several objectionable texts that violates the dignity of women” which seek to “exercise control over her body and freedom, thus perpetuating patriarchy explicitly.”
“Let us also remember that Dr BR Ambedkar organized a mass event where the Manusmriti was consigned to flames on December 25, 1927, and the day is celebrated as both, Manusmriti Dahan Din and Stree Mukti Din”, they add.
Text:
PUCL Gujarat notes with great distress and concern, the practice of constitutional courts making references to scriptures and religious texts, a practice that could negate the very basis of our constitutional jurisprudence.As per certain media reports there have been almost 38 such references to Manusmriti between 1950 and 2019 by the High Courts and the Supreme Court, with 26 (almost 70%) of them being made during the period 2009-19. There have been also references to other religious texts like the Koran and the Bible too in the course of hearings by constitutional courts.
The most recent reference to Manusmriti was reportedly made on the 8th of June, 2023, by a bench of the Gujarat High Court during the hearing of a plea for termination of pregnancy of a minor rape survivor. The said hearing in the Gujarat HC was in the context of the case of rape and subsequent pregnancy of a minor girl (R/Special Criminal Application No. 6643 of 2023).
While the order passed by the judge for a panel of doctors to ascertain the medical and psychological condition of the child and the foetus is beyond reproach, the manner in which certain observations were made do not appear to be consistent with our constitutional jurisprudence.
The judge reportedly made the following remarks orally:
“Because we are living in the 21st century, ask your mother or great-grandmother, 14-15 was the maximum age (for getting married). The child used to take birth before the age of 17. Girls get matured before boys. 4-5 months here and there doesn’t make a difference. You will not read it, but do read Manusmruti once for this.”
These reported remarks are uncalled for, and can convey a very wrong message, especially when the law on Medical Termination of Pregnancy (MTP) and several judgments of the SC are among the best in the world, which respects the autonomy of the woman in deciding on abortion; on what is best for her.
The lawyer representing the father of the rape survivor was also heard responding to the judge’s remark that under Islamic law, too, the marriageable age is 13. These unwarranted remarks undermine the belief in the commitment of the constitutional court to uphold constitutional jurisprudence and morality; it trivializes and normalizes the pregnancy of a minor and seemingly do not see anything traumatic with underage marriage or pregnancy.
The effort of the judge seems to ‘legitimize’ those unwarranted remarks by making the abovementioned reference to the Manusmriti in this context. This appears to negate the progressive reforms that we have made as a nation thanks to the women’s movement in India. Will the court therefore agree that old, anti-woman practices like Sati, denying education to women, prohibition of widow remarriage etc. should be revived?
It should be noted that Manusmriti and many other religious scriptures have several objectionable texts that violates the dignity of women and seeks to exercise control over her body and freedom, thus perpetuating patriarchy explicitly.
Let us also remember that Dr BR Ambedkar organized a mass event where the Manusmriti was consigned to flames on December 25, 1927, and the day is celebrated as both, Manusmriti Dahan Din and Stree Mukti Din.
In India, a secular democratic country with a diverse population, the legal system is based on a combination of common law principles and statutory laws. The primary sources of law in India are the Constitution of India, enacted by the Constituent Assembly in 1950, and various statutes passed by the Parliament and state legislatures. The Indian judiciary follows a system of precedent, where judgments of higher courts are binding on lower courts.
The judges in the court of justice take oaths to abide by the constitution of India. Normalizing the use of religious text and scriptures like Manusmriti in the court by judges clearly points to the larger majoritarian agenda in the country today. This also negates the struggle of the women’s movement that has been pushing to uphold the constitutional rights of women.
This also clearly indicates a disturbing trend in the judiciary where in the judges seem to feel comfortable passing value judgements on women and their choices. To refer to the Manusmriti as a source of rights of women is an insult to the Constitution.
We, as PUCL Gujarat, urge your excellency to take cognizance of this trend and take corrective action to strengthen the commitment of our constitutional courts to the Constitution of India and constitutional values and morality.
These reported remarks are uncalled for, and can convey a very wrong message, especially when the law on Medical Termination of Pregnancy (MTP) and several judgments of the SC are among the best in the world, which respects the autonomy of the woman in deciding on abortion; on what is best for her.
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| Justice Samir Dave |
The effort of the judge seems to ‘legitimize’ those unwarranted remarks by making the abovementioned reference to the Manusmriti in this context. This appears to negate the progressive reforms that we have made as a nation thanks to the women’s movement in India. Will the court therefore agree that old, anti-woman practices like Sati, denying education to women, prohibition of widow remarriage etc. should be revived?
It should be noted that Manusmriti and many other religious scriptures have several objectionable texts that violates the dignity of women and seeks to exercise control over her body and freedom, thus perpetuating patriarchy explicitly.
Let us also remember that Dr BR Ambedkar organized a mass event where the Manusmriti was consigned to flames on December 25, 1927, and the day is celebrated as both, Manusmriti Dahan Din and Stree Mukti Din.
In India, a secular democratic country with a diverse population, the legal system is based on a combination of common law principles and statutory laws. The primary sources of law in India are the Constitution of India, enacted by the Constituent Assembly in 1950, and various statutes passed by the Parliament and state legislatures. The Indian judiciary follows a system of precedent, where judgments of higher courts are binding on lower courts.
The judges in the court of justice take oaths to abide by the constitution of India. Normalizing the use of religious text and scriptures like Manusmriti in the court by judges clearly points to the larger majoritarian agenda in the country today. This also negates the struggle of the women’s movement that has been pushing to uphold the constitutional rights of women.
This also clearly indicates a disturbing trend in the judiciary where in the judges seem to feel comfortable passing value judgements on women and their choices. To refer to the Manusmriti as a source of rights of women is an insult to the Constitution.
We, as PUCL Gujarat, urge your excellency to take cognizance of this trend and take corrective action to strengthen the commitment of our constitutional courts to the Constitution of India and constitutional values and morality.
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