Supreme Court discredits itself with its overly intrusive activism – Sreemoy Talukdar

 Supreme Court of India

Sreemoy TalukdarWhen the judiciary—that is not accountable to the people—intrudes upon the domain of the executive and legislature, makes laws and tries to govern, it does an inadvertent trade-off with its moral authority. – Sreemoy Talukdar

The Supreme Court ban on crackers during Diwali except for a two-hour window between 8 and 10 pm has been flouted across the country. Revelers were seen bursting crackers—including noisy ones—well past midnight. Real time tracking on social media and detailed reportage by traditional media indicates that Indians across the length and breadth of the country paid scant regard to the judgment delivered by the highest court of the land.

In Delhi, violations were reported from different areas including Anand Vihar, ITO, Jahangirpuri Mayur Vihar Extension, Lajpat Nagar, Lutyens Delhi, IP Extension and Dwarka (among others) and in the NCR as citizens burst crackers with gusto. India Today reported “ear-splitting fireworks” being put up for sale at Modinagar and Farrukhnagar warehouses in Ghaziabad district.

In Kolkata, according to reports, pollution on Wednesday was worse than in Mumbai or even Delhi as revelers threw Supreme Court guidelines to the wind and burst high-decibel firecrackers with gay abandon. Tamil Nadu Police registered over 2,100 cases and made 650 arrests against those who burst crackers outside the deadline. Similarly, the SC ruling made little impact on Hyderabad where most residents started fireworks from dusk and continued late into the night.

It is easy to blame the administration or law enforcement for the pickle, but ultimately pointless. Mass-scale open defiance of an apex court order is worrisome. It raises deeper questions about unimplementable rulings and the deleterious effects of judicial activism.

The key question is this: Can law force a change in society’s religious and cultural mores (unless the practices represent social evils)? It is also worth pondering whether in seeking to usurp the role of the executive and the legislature and govern by legal decree, the judiciary is at risk of lowering its prestige by making itself vulnerable to defiance, criticism and even ridicule. The separation of powers in a democracy is designed to ensure that elected representatives do the business of governance at the risk of getting ousted by the people in case of non-performance.

When the judiciary—that is not accountable to the people—intrudes upon the domain of the executive and legislature, makes laws and tries to govern, it does an inadvertent trade-off with its moral authority. All problems cannot be fixed through judicial intervention. Some are made worse.

To recall, the Supreme Court order imposed certain conditions on selling, purchase and bursting of firecrackers: a tradition among a large number of Indians, not just Hindus. The top court’s judgment also covered the types of crackers allowed or disallowed. Series crackers (called laris) were banned, “green crackers” were permitted in Delhi and NCR, but since no one had any idea about what these were, the order caused more confusion than clarification.

Some traders in Delhi reportedly placed firecrackers inside vegetables (mooli phuljhadi, pyaaz chakri) to mock the Supreme Court’s ruling. Judiciary’s activism didn’t end here. The Supreme Court also tried to encourage community bursting of crackers in a designated area and asked the central and state governments to identify spaces for it.

Banning of crackers, of course, isn’t the only instance of judicial overreach. We have seen similar instances of intervention in Sabarimala verdict where the learned judges tried to rationalise faith armed with their codes of morality and equality. The on-ground resistance against court order on Sabarimala cannot be attributed to political maneuvering alone. Politics cannot whip up passion if there’s no popular support.

Intrusions into matters of national security were witnessed on the recent Supreme Court order asking the Centre to submit all “strategic and confidential” details of the Rafale contract to the apex court within a period of 10 days. One wonders whether the learned judges are well-equipped to assess the technical details of the deal and ascertain anomalies, if any, or take informed decisions on the proficiency of the fighter aircraft and the potency of its weaponry.

Major General Mrinal Suman (Retd), who retired from the Indian Army in 2003, wrote in Swarajya Magazine, “Courts should come in only when the prima facie case exists of any wrongdoing and not on the basis of vague and concocted allegations. … The judges are not even sure as to what they want to ascertain. Initially, they wanted to know only about the procedure followed but changed their mind within 10 days. Now they want the cost breakdown with justification. At this rate, they will soon demand to vet the complete field trials process as well. Is this the task of judiciary to decide which weapon system the country should buy and what should be the fair and reasonable price for the same?”

Such interventionism exacts a heavy price. Judiciary’s encroachment tampers with the division of powers and weakens the structure of the State. But it does more. The greatest harm is caused to the judiciary itself. Laws are enforced by the State, but such enforcement is not merely a matter of implementation by force. It is incumbent on compliance by citizens. That compliance recognises the moral authority of the judiciary in passing verdicts. Judges’ views are considered sacrosanct by people not just because there is a danger in non-compliance, but also because people want to comply. Judgments that seek to force a change in religious, socio-cultural or socio-economic issues end up challenging the compliance. The result is evident. Verdicts are subjected to political wrangling or open defiance and it cannot hold good portends for the judiciary.

As former Supreme Court judge Markandey Katju wrote on Supreme Court’s “unimplementable orders” on Facebook: “I am abroad, and I see that the time in India is 11.35 pm. (I won’t tell the time here because then you will locate where I am). I telephoned a lady in Delhi to wish her Happy Diwali, and she told me crackers are still bursting all around. I said what about the Supreme Court judgment which prohibited bursting crackers after 10 pm. She laughed, and said, “Who cares for Supreme Court orders?”

Such overreach also gives rise to what is called the Streisand Effect. Social media is awash with accounts of citizens who have never been enthusiastic about bursting crackers till Supreme Court expressly forbade them from doing so except within the deadline. If the apex court sought to force people into compliance, it likely achieved the opposite. The spike in instances of non-compliance was as much a resolve to continue with tradition as open defiance of a ruling that many interpreted as an intrusion upon their liberty. It became an expression of dissent.

A large section of the media is interpreting the defiance as an instance of cutting off the nose to spite the face. They point out that bursting of crackers will worsen the already wretched pollution levels of Indian cities, especially Delhi, and this logic alone should be enough to enforce the ban. This view seeks to justify judicial interventionism in this context. But this is a flawed argument.

The causal effect relationship between deadly pollution in Delhi and bursting of firecrackers in Diwali is contested and inconclusive. Exhaustive studies such as the one done by IIT Kanpur, which submitted its report to the Delhi government in 2016, indicated that pollution levels are incumbent on a host of factors such as “secondary particles (25-30 percent), vehicles (20-25  percent), biomass burning (17-26  percent), MSW (municipal solid waste) burning (8-9 percent) and to a lesser extent soil and road dust” in winter and “coal and fly ash (26- 37  percent), soil and road dust (26–27 percent), particles (10-15  percent), biomass burning (7-12 percent), vehicles (6-9  percent) and MSW burning (7–8  percent)” in summer.

Pollution in India’s urban spaces are a complex phenomenon that should be solved through an integrated, long-term approach that must include all stakeholders. Band-aid solutions will likely fail and banning of crackers through legal diktat may turn counterproductive. The larger question, however, pertains to the judiciary’s penchant for issuing unimplementable orders. As Katju points out, “Which section of the IPC is violated if young people burst crackers after 10 pm?” – FirstPost, 8 November 2018

» Sreemoy Talukdar is a senior editor at FirstPost in Kolkata.

Supreme Court Cracker Ban


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3 Responses

  1. Supreme Court of India

    If judiciary wants to govern the country, let it seek the people’s mandate – Major General Mrinal Suman – Sify – 9 November 2018

    As in all democracies, the ultimate power is vested in us, the people of India. We govern ourselves through our duly elected representatives. We elect the government and assign it the responsibility of ruling the country, ensuring internal harmony, public welfare and national security.

    For governance, we delegate our sovereign power to the elected government and to no other institution. Any entity, even if it is higher judiciary, cannot usurp that power. Members of the higher judiciary are not elected by us and hence do not represent the will of the people. They have no right whatsoever to interfere in the governance of the country. Secondly, the government is answerable to us, the people of India, for its performance and not to any judicial entity. For any deficiency in good governance, people can hold the government accountable. Non-performing representatives are rejected at the next hustings. As the higher judiciary is not answerable to the people, it must not meddle in matters of governance.

    A few years ago, in one of my articles I had stated that India owes its existence as a thriving nation to three institutions – the armed forces, the election commission and the higher judiciary. Of late, the higher judiciary has disappointed many citizens. It needs to introspect about the role assigned to it by the Constitution. Some highly disturbing developments of the recent past are recounted here.

    In the second week of January this year, in an unprecedented move, four senior-most judges of the Supreme Court held a press conference to assail the functioning of the Supreme Court. If aggrieved, the most honourable thing to do is to quit the organisation and then air one’s grievances publicly. By acting in an unbecoming manner, the four judges inflicted immense damage to the credibility of the institution. The four unhappy judges felt that they were being assigned less important cases. Honestly, one is surprised at their assertion. One thought that every case that comes before the Supreme Court is of utmost importance ‘with far-reaching consequences for the nation’. The four judges wanted cases of ‘their interest’.

    However, it was the July 2016 judgement of the Supreme Court that caused the maximum pain wherein registration of FIR against the armed forces personnel, even in disturbed areas under Armed Forces (Special Powers) Acts (AFSPA), was made mandatory for every encounter death. Whereas all nations empower their soldiers to vanquish enemies of the state, our judiciary takes pride in shackling them. India must be the only country where active military operations are subjected to judicial reviews – an outlandish idea indeed.

    Unfortunately, most of the judges are the progeny of well-known legal luminaries and have never seen a bullet fly past their ears. Human rights appear far more important than the security of the country when one’s family is safely ensconced in a secure air-conditioned home.

    The jihadi organisations have been waging an asymmetrical war, and they must have passed a vote of thanks to our Supreme Court!

    However, the immediate trigger for penning this write-up is the handling of the Rafale case by the Supreme Court. As it amounts to usurping governance powers, it has been discussed in some detail here. Is it the function of the court to ascertain whether the proper procedure was followed for the procurement of a defence system or whether the price was justified? The courts should come in only when the prima facie case exists of any wrongdoing and not on the basis of vague and concocted allegations.

    Is there any proof of anyone getting bribe money? No. Has any trail of sleaze funds been tracked? No. If there is not even an iota of proof of any corruption, what justification does the court have in admitting the appeal filed by a few disgruntled elements who turned Narendra Modi-haters after failing to get cabinet berths? Surprisingly, the Supreme Court appears highly enthusiastic about the Rafale case, seeking government response in 10 days against the usual ‘next date of hearing’ after months and years.

    Worse, the judges are not even sure as to what they want to ascertain. Initially, they wanted to know only about the procedure followed but changed their mind within 10 days. Now they want the cost breakdown with justification. At this rate, they will soon demand to vet the complete field trials process as well. Is this the task of judiciary to decide which weapon system the country should buy and what should be the fair and reasonable price for the same? It is a preposterous proposition. We have made our elected government responsible for the security of the nation and not a bunch of self-opinionated activists trying to misuse the judicial process to settle personal scores.

    The judges ought to know that major defence deals are an instrument of a nation’s foreign policy objectives. They do not take place in isolation and are invariably a part of a larger package agreed to between the two nations. Many key aspects are never made public, both on account of security implications as also to avoid international ire. One does not know as to what all has been promised by France under the Rafale deal. Hypothetically speaking, India may have demanded that Rafale be reconfigured for delivering nuclear weapons or BrahMos cruise missiles. The package could also include transfer of some cutting-edge technology or help in nuclear/missile field for advanced weaponry. Can these aspects be made public?

    Moreover, India is buying Rafale as a complete fighting system and not just the platform. The real punch lies in its weaponry, avionics, electronics and radars. Operational capability of a strategic system depends on its configuration and it has to be closely guarded secret. No country reveals such details to prevent the prospective enemies from initiating counter-measures in advance. Can all such commitments be revealed to satisfy the courts and the cynical elements? Demand for transparency cannot be carried to such ridiculous limits.

    The detractors have accused the government of favouring Reliance group by ousting Hindustan Aeronautics Limited (HAL). This is by far the most ludicrous allegation. All 36 aircraft will be manufactured in France and delivered to India fully configured. Hence, the question of having an Indian production partner does not arise at all. One does not know whether it is sheer ignorance on the part of the critics or a deliberate plan with malicious motives.

    Interestingly, the court has also sought information about the selection of Anil Ambani’s Reliance group as an offset partner. It is an amazing query as the government has nothing to do with it. The offset policy, formulated in 2006 by the Congress regime, categorically states that the foreign vendor will be responsible for the fulfilment of offset obligations. Failure invites huge penalties and even debarment from future contracts. Therefore, the policy allows the foreign vendor to select Indian offset partners (IOP) of his choice. The government cannot suggest/nominate any. The provision makes eminent sense. If the vendor is responsible for the offsets, he must have the freedom to select IOP in whom he has faith. French firm Dassault has chosen close to 100 IOPs and Reliance is one of them, albeit a major one. How does the government come in?

    Media reports suggest that the government is considering procurement of additional Rafale fighters, especially the naval version. Apparently, efforts are being made by the losing competitors to deter the government from going ahead. The current stir being kicked up may well be a manifestation of the same.

    Is the higher judiciary short of work and underemployed? Has it disposed off all the cases pending before it? If not, it should focus on doing its designated job rather than creating problems for the elected government through its undue interference. For example, forgetting the distinction between social evils and matters of faith, it unnecessarily generated animosity amongst various sections of the populace in the case of Sabarimala. The higher judiciary is not mandated to govern the country. Governance should be left to the elected government. However, in case the judges feel very strongly about participating in governance, let us amend the Constitution and let the people of India elect the higher judiciary. For only people’s elected representatives get mandate to govern the country; and that is the essence of democracy. – Sify, 9 November 2018

  2. “When the judiciary—that is not accountable to the people—intrudes upon the domain of the executive and legislature, makes laws and tries to govern, it does an inadvertent trade-off with its moral authority.”

    Of course, if the Executive—who IS accountable to the people—was doing its legislative duty, the Judiciary might not be so eager to intervene.

  3. Ayyappan

    Let devotees decide rules of religion – Balbir Punj – The New Indian Express – New Delhi – 25 October 2018

    The country heaved a sigh of relief after the Sabarimala temple of Lord Ayyappa in Kerala closed on Monday at the end of a five-day ritual without any mishap despite the palpable tension on the subject of entry of women in the age group of 10 to 50 into the ancient shrine. Now everybody is thinking about next month, when the shrine is slated to reopen for a three-month pilgrimage season in mid-November.

    In a recent 4-1 judgment, a Constitution Bench of the Supreme Court, consisting of then Chief Justice of India Dipak Misra, Justice Ajay Manikrao Khanwilkar, Justice Rohinton Fali Nariman, Justice Dhananjaya Yeshwant Chandrachud and Justice Indu Malhotra, overruled a Kerala High Court order, and lifted a traditional ban on the entry of menstruating women into the Sabarimala temple.

    The devotees follow a vrata (penance) for 41 days prior to the pilgrimage. The vrata begins with the donning of a special mala made of rudraksha beads. The penance requires following a lacto-vegetarian diet, being celibate, going off alcohol and controlling anger during the period. They also see everything around as Lord Ayyappa, bathe twice a day and visit temples regularly.

    In short, a devotee’s pilgrimage and what comes before it are no picnic. These practices are born out of ancient traditions, and are beyond the comprehension of the uninitiated.The court also ruled that the devotees of Lord Ayyappa are not a separate “religious denomination”. The verdict came just days before the opening of the temple of the “perennial celibate” for five days from 18 October. The only dissenting view came from the woman judge Indu Malhotra.

    The court held that “the heart of the matter lies in the ability of the Constitution to assert that the exclusion of women from worship is incompatible with dignity, destructive of liberty and a denial of the equality of all human beings. These constitutional values stand above everything else as a principle which brooks no exceptions, even when confronted with a claim of religious belief.”

    Justice Malhotra, in her dissenting verdict, said, “The equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practice and propagate their faith, in accordance with the tenets of their religion.”

    “Constitutional morality in secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical.”

    Justice Malhotra also said that a “pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion. It is irrelevant whether the practice is rational or logical. Notions of rationality cannot be invoked in matters of religion.”

    In this case, the “manifestation is in the form of a Naishtik Brahmachari. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.”

    She further said, “What constitutes essential religious practice is for the religious community to decide, not for the court. India is a diverse country. Constitutional morality would allow all to practise their beliefs. The court should not interfere unless if there is any aggrieved person from that section or religion.”

    Soon after the verdict, thousands of women took out rallies protesting against the verdict in many parts of the country.  The Kerala government, however, has ruled out filing a revision petition before the apex court and said women devotees will be given protection to enter the 800-year-old temple.

    Since Sabarimala’s Lord Ayyappa is a Naishtik Brahmachari practising the severest form of celibacy, he keeps away from the company of women. The temple ban on menstruating women is also in keeping with the wish of the deity, who is believed to have laid down clear rules about the pilgrimage. In the wake of the apex court verdict on this vexing subject, it is pertinent to ask whether courts are equipped to decide on matters of faith. And what the implications are if the paradigm enshrined in the verdict is taken to its logical conclusion and extended to other faiths.

    Can the courts ask why Catholic women are banned from becoming priests and solemnising weddings? Or why Muslim women cannot become muftis or say namaz along with men in mosques?

    Obviously the apex court resents Lord Ayyappa feeling shy about seeing menstruating women. In Hinduism, God, in the form of any symbol or statue, is a living being. The Lordships are silent as to what happens to Lord Ayyappa’s right to not see someone. According to the court, He cannot exercise any such discretion.

    It is best for the courts to leave matters of faith alone. However, the system (including Parliament and courts) has to work for the elimination of social practices inconsistent with modern values.

    For example, sati, which was prevalent in India, has since disappeared, thanks to social reforms and laws passed against it. Similarly, dowry, child marriage and infanticide of girls have been banned by the government. And it was the same with triple talaq. – The New Indian Express, 25 October 2018

    » Balbir Punj is a former Rajya Sabha member and Delhi-based commentator on social and political issues.

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