Way To Go, Your Lordship!

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One does not know if it had anything to do with the open spat over ‘judicial overreach’ between Chief Justice of India (CJI) Dipak Misra and Union Law minister Ravishankar Prasad on the occasion of a Law Day function on Sunday. But the Supreme Court’s sudden rethink today on a set of guidelines to check the misuse of Section 498A of Indian Penal Code (IPC) it had issued only in July this year certainly suggests that the apex court is beginning to realize that it is getting into areas which are not strictly in its domain. A three-judge bench comprising Chief Justice Misra, Justice AM Khanwilkar and Justice DY Chandrachud apparently questioned the need for any guidelines when there is a provision in the IPC dealing with the issue of dowry torture. The guidelines had been issued by a two-judge bench headed by Justice AK Goel in the Rajesh Sharma vs. Union of India case in July to check fraudulent and mischievous complaints lodged under Sec 498A. Though the matter will be heard next in the third week of January, 2018, the guidelines appear as good as dead given the apex court’s pronouncement today.

This is not the first time the apex court has reversed – or looked set to reverse – its own earlier ruling. On October 23, a bench comprising CJI Misra, Justice Khanwilkar and Justice Chandrachud all but reversed its own order – passed in November last year by a bench headed, ironically, by Justice Misra – making it mandatory for cinema theatres to play the national anthem at the end of the show and for moviegoers to stand up while it is being played. The one big development between the two rulings was the elevation of Justice Misra as the CJI. CJI Misra thus effectively reversed a ruling he had given himself and left it to the government to take a call on the matter. The pronouncements by the two benches – both headed by Justice Misra – are a world apart. The earlier bench had held that “It is the duty of every citizen to abide by the ideals ingrained in the Constitution and as such show respect to the National Anthem and the National Flag” while Justice Chandrachud best summed up the view of the second bench when he wondered aloud “Why must patriotism be worn on our sleeves?”

The point to note is that in both the cases cited above, the Supreme Court has reversed rulings on matters it had no business to get into in the first place. As the court itself noted in the case pertaining to Sec 498A of IPC last month, it ‘can only interpret law, not write it.’ The ruling in July setting guidelines was a clear case of encroachment into executive domain while the ruling on the playing of national anthem was a patently regressive move not consistent with a modern, liberal society.

The latest rulings in both these cases have to be welcomed by everyone concerned about Rule of Law. The apex court needs to be complimented for doing the right thing without bothering about being accused of flip flop. The Constitution clearly demarcates the boundaries of the legislature, the executive and the judiciary and leaves no room for any ambiguity. And yet, the higher courts have shown a consistent proclivity over the years to stray into areas that are in the executive domain.  From banning the sale of diesel cars in the NCR to banning jallikattu in Tamil Nadu, the Supreme Court has repeatedly got into the business of lawmaking instead of interpreting it. Taking a cue from the apex court, the High Courts too have displayed a remarkable tendency to rule on matters not strictly within their jurisdiction.

One can only hope that the Supreme Court would continue to scrupulously stay out of areas which rightfully belong to the executive and the legislature. And the High Courts will follow suit. 

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