SC On Demonetisation: With Power Comes Responsibility, And Most Importantly, Self-Restraint

Earlier this week, hearing a plea by the central government seeking a direction that no other court in the country should entertain petitions challenging the government’s notification to demonetise currency notes in the denomination of Rs 500 and Rs 1,000, the Supreme Court bench remarked, among other things, that “people are frantic” and that “there may be riots”. These words were reportedly stated in the context of permitting people across the country to approach respective courts in their states.

Although a large number of people have come out in support of demonetisation, the fact that there are question marks on implementation thereof and the resultant inconvenience throughout the country is not in dispute.

What, however, happens when the apex court of the country makes gratuitous remarks, which have no relevance whatsoever in evaluating the legal bases on which the central government’s plea may be determined? Given the issue is before the Supreme Court, these remarks finding their way in a written order even as obiter dicta would be a highly unforeseen occurrence. (Obiter dictum is an incidental expression of opinion which isn’t essential to the decision and is not binding opinion).

It is highly unfortunate that the trend of late with the Supreme Court has been to make casual headline-variety remarks, which do not quite add to the legal wisdom, which would benefit students of the law. To be sure, governments have often been found in dereliction of its duties and the Supreme Court has often stepped in through an expansion of its ambit, in particular, with the steady rise of public interest litigation matters.

What happens, though, when the final arbiter of law in this country, which the Supreme Court indisputably is, uses its position of power to attempt to be the final arbiter of public opinion or hyperbole?

There are real limits on the ability of others to judge, evaluate or assess the Supreme Court’s functioning. Apart from areas to which a contempt of court charge applies, there are many ‘permissible’ areas of criticism, which other wings of our democracy such as the legislature, executive, media and the polity in general exercise restraint in indulging in. Of all the other institutions, the Supreme Court enjoys the choicest authority not only as per law, but even in accordance with customary practices.
When the judges use this supreme position to transgress the sphere of legal reasoning and enter the realm of sensationalism, the only reason other wings of our democracy may not erupt in protest is this ‘choicest authority’ accorded to the Supreme Court.

With one irresponsible remark after another, however, that ‘choicest authority’ keeps eroding slowly, but surely. What used to be a rare occurrence, a knowing transgression by the apex court only to stand up to the mighty executive grossly misusing its power, has become a matter of daily habit.

The choicest authority it wields not only in the eyes of law, but also in the eyes of those ruled by it, must be a constant reminder to our apex court that responsibility and self-restraint are but the choicest virtues.