Law is against woman but we can't set it aside, says HC

Can a law which violates the fundamental right of non-discrimination on the basis of sex be valid? The Delhi High Court says 'yes' but expressed its inability to quash it as the law has been put beyond judicial scrutiny under ninth schedule of the Constitution.

A Bench of justices BD Ahmed and Veena Birbal found the provision of Delhi Land Reforms Act of 1954, which says the property would be first devolved to male lineal descendants and the female would be given property only when there are no male descendants, as discriminatory but refused to set it aside saying its hands are tied.

"The said Act in as much as it is heavily loaded in favour of male descendants of a bhumidhar and this may appear to unfairly prejudice the rights of women and may be construed as discrimination against them solely on the ground of sex but in the wake of the Constitutional provisions as interpreted by the Supreme Court, this court's hands are
tied," the bench said.

The court made the remarks on a petition filed by a widow and her daughter challenging the constitutional validity of Section 50(a) of the Act which deprived them rights over the property of her husband and father.

The laws which have been put under the ninth Scheduled of the Constitution before 1973 cannot be challenged in courts on the ground that it violates basic structure of the Constitution as the theory of "Basic Structure" was propounded by the Supreme Court in that year.

The Court, however, said that the Parliament should take into consideration the anomaly left in the law which is against the basic fundamental right to equality.

"Perhaps the legislature ought to take note of the incongruous position of female descendants of bhumidhars and asamis and remedy the inequality," the Bench said.

The court relied on the judgement delivered by the Constitution Bench of the apex court which had in 2007 held that only those laws are open to judicial review that were put in the Ninth Schedule after 1973.

"Accordingly, we find that the Section 50(a) of the said Delhi Land Reforms Act cannot be challenged because of Article 31B of the Constitution and because it had been placed in the Ninth Schedule of the Constitution in 1964, that is, prior to 1973," the Bench said.