Does The Supreme Court Have A Coherent Jurisprudence?

Does The Supreme Court Have A Coherent Jurisprudence?

by Ananth Krishna - Wednesday, June 5, 2019 12:12 PM IST
Does The Supreme Court Have A Coherent Jurisprudence?The Supreme Court of India.
  • Some of the Supreme Court’s recent judgements are baffling to the common man as well as the state.

    A few verdicts do not seem to stand the test of reason, and this is a matter of concern.

Does the Supreme Court of India, the highest court of the land, have a coherent jurisprudence? More than a few of its recent decisions call into question its very existence. Jurisprudence as the theory and philosophy of law, are principles and concepts on the basis of which decisions are made on legal issues. To find these principles in Indian judgements over the years has never been an easy task, as any law student will tell you.

The Constitutional court’s judgements are unbearably long, tangled up in paragraph after paragraph. The Supreme Court has completely rejected the argument that it is bound by the text of the Constitution in many cases. Our jurisprudence, to put it lightly, is a mess.

This was highlighted yet again when the Supreme Court heard the case of Priyanka Sharma, a BJP worker who was arrested for posting a meme on the West Bengal Chief Minister Mamata Banerjee. Sharma was charged under Section 500 of the IPC (Defamation), Section 66-A(Offensive Messages) and Section 67-A (Transmitting sexually explicit content) of the Information Technology Act. It should be noted that the Supreme Court had already struck down Section 66A, and the charge under Section 67 is an overkill to say the least. After Sharma’s arrest, her lawyer applied for bail to the Supreme Court. The court’s observations baffled many - rather than immediately release her on bail for what is clearly a spurious charge, the court rather decided to ask for an apology from Sharma.

Such a demand from the highest court, when the state government has clearly violated her constitutional rights, defied logic. Moreover, the honourable judges of the Supreme Court observed that Sharma was not an ordinary citizen, but a BJP leader. It appeared as if the rights of citizens depend on their involvement or non-involvement in active politics. Another observation made by the court centered around the other person’s rights, which was baffling. Satirising or mocking a public figure, especially a politician, is arguably one of the cardinal liberties one enjoys in a democratic republic. It can be stated without a doubt that it was Sharma’s constitutional right to freedom of speech that was violated here and not any right of Mamata Banerjee.

More importantly, the defamation charge under Section 500 was made by a local leader of the Trinamool Congress and not the person who was defamed, as required under Section 199 of the CrPC. There is no “legal question” for the court to debate here, yet the court decided to twist itself unnecessarily for what is an open and shut case. The court initially asked Priyanka Sharma to apologise before release, but then changed the requirement to the tendering of an apology at the time of release. She was released 24 hours after the order of the Supreme Court.

The episode illustrates to many critics of the court how it has been judging many issues of late. There is little logic to the observations of the court, in some of these cases. In 2018, the court imposed a blanket ban on all construction work in states that did not frame Rules on Solid Waste Management. Such a ruling has an obviously crippling effect on the economic activity of all persons for no fault of theirs. While the intention of the court was noble, to force the states to frame rules on a subject, the logic of the order is still illusive.

Whether it is the duty of the court to force the state to form rules itself is questionable, but punishing everyone for the shortcomings of the state is akin to acting in a vacuum. The judiciary has to factor in the economic and social impact of its decisions and not merely the legal angles of judgements. Most importantly, judges must look at the incentive system they are creating with their decisions.

Inconsistencies have propped up multiple times in how the court deals with the same issues In different contexts. Take the example of the court’s decision to ban khap panchayats, but not sharia courts, when arguably both function similarly as non-state fora to resolve legal disputes.

Another controversial decision has to be the Highway Liquor ban decision in December 2016. The Supreme Court in its most distinguished wisdom decided that alcohol should not be sold within 500 metres of a national highway. A decision with an undoubtedly good intention, to prevent drunk driving. But there was no scientific study that showed that such a correlation existed in the first case. More importantly, this was a case of severe judicial overreach. The court made 500 metres the limit for the sale of alcohol without any reasoning. The trend of the courts’ decision making has been such that the court has willed so, therefore it is so.

The problems with the order and that of general judicial legislation became clear when the order had to be amended for the hill states, the northeast and so on. There were also many states which denotified highways so that bars and alcohol outlets in cities or towns did not have to shut shop. These judgements seem to reflect a sort of unscientific, unreasoned thinking that the court has adopted in relation to many matters.

Take for instance the question of pollution in Delhi. The court decided to outrightly ban the sale of fireworks in an experiment in October 2017 during Diwali, and in 2018, restricted the sale to only “green fireworks” and imposed a 2-hour window to burst crackers, which obviously not many cared for. This when there was a scientific study by IIT-Kanpur that showed that the reasons for pollution lay elsewhere (namely, burning fields in Haryana and Punjab). The court’s decisions regarding fireworks or the highway alcohol order was based on a simplistic understanding of the problem rather than a comprehensive tackling of the issue at hand.

The court, rather than settling legal issues, has done as it pleases. The decision called into question the irrationality of orders, which the state certainly does not have the capacity to implement, thereby undermining the respect and authority of the institution itself.

The Judicial system requires substantial institutional reform without a doubt, but it also requires a philosophical reset as well. The court ought to be more grounded in the text of the Constitution as well as thinking of the real-world consequences of its actions. The court is increasingly seen by many as a political institution rather than an apolitical one, and that does not bode well for its future. The respect and trust that the general public has in the Supreme Court as an institution ought to be maintained for the sake of the Republic.

Ananth Krishna is a lawyer and observer of Kerala's politics.
Join our Telegram channel - no spam or links, only crisp analysis.
Get Swarajya in your inbox everyday. Subscribe here.

An Appeal...

Dear Reader,

As you are no doubt aware, Swarajya is a media product that is directly dependent on support from its readers in the form of subscriptions. We do not have the muscle and backing of a large media conglomerate nor are we playing for the large advertisement sweep-stake.

Our business model is you and your subscription. And in challenging times like these, we need your support now more than ever.

We deliver over 10 - 15 high quality articles with expert insights and views. From 7AM in the morning to 10PM late night we operate to ensure you, the reader, get to see what is just right.

Becoming a Patron or a subscriber for as little as Rs 1200/year is the best way you can support our efforts.

Become A Patron
Become A Subscriber
Comments ↓
Get Swarajya in your inbox everyday. Subscribe here.

Latest Articles

    Artboard 4Created with Sketch.