Indian Judiciary – Where is it headed ?

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By Safi H. Jannaty,

Recently, the attorney general of India, KK Venugopal raised his concerns over two voices or difference of opinion among the Supreme Court judges. He also expressed alarm over attempts by judiciary to step over legislative domain. A seasoned and experienced lawyer, he must know that the very reason, cases are deliberated and decided by a bench comprised of two or more judges and the reason that the law requires constitution of a bench comprised of not less than five judges where a constitutional issue is involved reflect the fact that difference of opinion is very well expected and occasionally appreciated as well. Hence, there is no reason to get agitated over two voices and difference of opinion among judges even if the judgment on Sabarimala issue did not please him or the bosses he serves. As humans, judges too are not only prone to errors and misunderstanding, but also susceptible of getting influenced in some way or other. The bench system acts as good checks and balance mechanism and the fact that a dissenting judge is required to write his/her reasons for his/her dissent ensures fair play. While the attorney general talks about two voices in the Supreme Court, he needs to be reminded of his own drastic change of position on the issue of Female Genital Mutilation (FGM). In April, 2018, he had vociferously requested the Supreme Court to ban the FGM practice stating that it causes irreparable harm to young girls and referred to Article 25 of the constitution that allowed banning of any religious practice if found to be against public morality and health. In September, 2018, he sided with the respondents in requesting the court to refer the matter to a five member constitution bench. Was he not aware that there might be two voices within the bench and what arguments he has under his sleeves for making a huge U-turn from the strong view he had held five months ago?

It is also noteworthy that the attorney general carries the dubious distinction of acting as the lawyer for the ruling party. During the mid-night session held by the Supreme Court over controversial decision by the Karnataka State governor in inviting BJP to form government there, the attorney general put foot in his mouth by wildly suggesting that the anti-defection law applies only after the swearing in ceremony and playing Machiavellian politics, he feigned to misunderstand the spirit behind the anti-defection law until he was reminded by the court about the horse trading prospects glaring the scene then.

It is, however, true that in the recent times, the courts did graze across other wings of democracy and some of the recent pronouncements make one wonder on the power, discretion, prerogative and jurisdiction of judiciary. Besides, what has become alarming is the court’s deliberating and passing orders on issues that were not petitioned or pleaded by the parties. For instance, in November, 2016, the Supreme Court of India ordered that all cinema theaters must play national anthem before the start of the movie and the national flag be displayed on the screen while the anthem was being played. It required all of the people present in the cinema halls to stand up as a mark of respect for the national anthem and the doors of the hall be shut to avoid any movement during the recital of national anthem. The two judge bench continued and stressed in their order that the love and respect for the motherland was reflected when one showed respect to the national anthem and to the national flag. Finally, they concluded that it would instill a sense of committed patriotism and nationalism. The spirit behind the decision or its merits and demerits notwithstanding, let us dissect the entire decision in the light of the actual petition and analyze it from legal perspective. The petitioner, Shyam Narayan Chouksey, was duly and rightfully, concerned about the disrespect shown to the national anthem. However, the petitioner was not requesting the court to force or rule that the theaters or other public venues or places be ordered to play the national anthem or display the national flag at certain specific times or days and in certain manner. While there is no doubt that the hon’ble judges had the jurisdiction or the power to determine the complaint in the light of the provisions stipulated in the Prevention of Insults to National Honour Act, 1971 and they were absolutely right in prescribing the conditions or guidelines which they deemed fit to ensure that the national anthem or the national honor shall not be disrespected in any manner. However, one could rightfully question the reason or rather the necessity of the court pronouncing an order on an issue which was not raised before the court and the need to direct the government to enforce its order to have the national anthem played before each show in all cinema halls in the country. Ironically, the order was revoked a little less than an year of its passing and did not need the people to wear patriotism on their sleeves. Paradoxically, one of the judges of the bench that revoked the order happened to be the chief justice who was sitting on the earlier bench that had made the playing of the national anthem mandatory. The attorney general might take solace in the fact that he is not the only person who has the distinction of carrying two different voices at two different times.

In the similar vein, the latest judgment by Supreme Court on Rafale Deal maintained silence on the core issue that the petitioners had brought before it, namely, whether or not the Central Bureau of Investigation (CBI) was right in refusing to register an FIR over the wrongdoing by the Prime Minister’s office on Rafale matter. Instead, it elaborated on issues that the court itself considered to be outside its domain and even if were to deliberate on them for the sake of satisfying its conscience as it contended, the court should have afforded an opportunity to the parties for cross examining the respondents before accepting their claims and arguments to base its judgment. Here too, the attorney general seemed to be happier and more rejoiced than the ruling party and considered it to be a clean chit for Narendra Modi.

Remarkably, the trespass has also resulted in the judges making extremely superfluous and unwarranted comments while delivering judgments, sometimes just for the heck of it and sometimes to stir up unnecessary controversy or tirade against certain section of society. One would find no justification in the Meghalaya high court judge questioning the secular ethos of Indian constitution and his talk bordering on Islamophobia. Pages and pages have been filled to stoke emotions and communalism over persecution of certain communities during the two partitions. Though, it does not explicitly talks of extracting revenge, yet, it is all implied and one could easily read it between the lines.

Traditionally, the apex courts all over the world, have been determining issues or matters brought before them and they have rendered their decisions mainly on the point of law. In essence, their primary role has been to ensure that the laws passed by the legislature or orders issued by the executive wing of the government or other public agencies or private entities do not violate the laws of the land. In short, the courts, in general do not act on their own; but, consider issues and disputes when they are requested to determine and rule on them.

The beauty of democracy lies in the devolution or division of power and the wonderfully thought of mechanism places effective checks and balance on each organ of democracy. If the judiciary were to start donning the cap of the executive or start legislating laws or passing orders, we would see deep erosion in the value or importance of the democratic structure and institutions. One of the pre-requisites of protecting democracy and democratic values is the ability of judiciary to withstand pressure of other wings, notably the executive wing of democracy.

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