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Futility Of Checks And Balances

Futility Of Checks And Balances

The apex court is fast emerging as the prime reformer of modern India!

Yet, coming as severe jolts to the traditional mindset of people wedded to centuries- old customs which are challenges to the changing times, the rulings by the Supreme Court on a few petitions deemed ‘controversial’ have literally taken the nation by surprise.

After the apex court unanimously ruled to decriminalize homosexuality stating that the colonial-era law banning sex ‘against the order of nature’ amounted to discrimination on the basis of sexual orientation and was unconstitutional which is being seen as a landmark judgment for gay rights; the verdict doing away with the penal provision criminalizing adultery assures women of the country their ‘sexual autonomy’.

Sections 377 and 497 of IPC were examples of archaic and antiquated laws that sought to suppress ‘equal rights’ of those concerned and treated them as criminals. However, viewed as the beginning of the end of prejudice, these verdicts reflect the apex court’s decision to embrace the changes that exemplify the modern society.

With an evolution in mores and mannerisms characterizing successive generations, the need to have laws in keeping with the times has catalyzed campaigns to strike down obsolete rules that have no bearing to the present era. Besides, permitting the weaker gender to throw off the shackles of male dominance, the court is seeking to allow level playing ground for women.

In this regard the Supreme Court verdict allowing girls and women of all age groups, as against the previously imposed ban on those between the age of 10 and 50, inside the Sabarimala shrine in Kerala too needs to be hailed as a victory of gender equality! Given that this order is also a need of the changing times, it however remains to be seen as to how traditionalists would treat the ‘judicial encroachment’ into the holy precincts where the writ of the Travancore Devasvom Board has been holding sway for decades now. While the apex court has been uniform in its considerations, scepticism will however agitate many who believe that changes should come in stages and the abruptness of any decision will only have boomeranging effects.

For a nation steeped in traditions and orthodoxy, public perceptions play a vital role in accepting judgments which are incongruous with the existing social order. But as a harbinger of changes relevant to the modern times, these rulings are indeed path-breaking! However, at a time when the courts have been accused of violating the doctrine of separation of powers by taking on the functions such as law enforcement, policy making and law making, it becomes necessary that the judiciary sheds it ‘all inclusive’ role and allows the executive and legislature to impeccably perform their functions.

Recent trends show that the top court has been inundated with all sorts of matters amounting to challenges against what is presumed to be infringements of the fundamental rights of citizens. And in most of these cases, strangely, the inactivity of the government in addressing the issues on the basis of existing laws has compelled apex court to as the elders of the society. Admittedly, when the government repeatedly fails and violates its constitutional obligations, approaching the courts is the last hope that citizens have to vindicate their rights.

But of late it has been the slew of social issues plaguing the nation that has attracted the attention of the apex court for the insensitiveness of the government in dealing with them.

Recently, observing that the existing mechanism was not adequate to curb incidents of sexual abuse of children and girls at shelter homes, the Supreme Court has asked the Ministry of Women and Child Development to apprise it on the formulation of a child protection policy.

Keeping in view the matter of safety on roads, Goans would not be ignorant about the furore over the Supreme Court ruling banning the sale of liquor at retail outlets, as also in restaurant, hotels and bars that were within 500 meters of any national or state highway which had the state government hurriedly ‘altering’ the definition of ‘highways’ to accommodate the interest of local stakeholders.

The ‘Triple Talaq bill’ is another example! Setting aside instant talaq as a ‘manifestly arbitrary’ practice, the Supreme Court pronouncement, besides jolting the conservative Muslim community, gave space for ‘individual opinions and inclinations’ creeping into it. 

So also in the matter of allowing women of all ages into the hallowed premises of Sabarimala temple! Having evoked mixed reactions, the implementation of the Supreme Court verdict on the Sabarimala case will however be too onerous a task. Having thrown open the doors to a veritable amount of debate on the issue and with heated arguments questioning the realism of the ruling, possibilities and suppositions in the ruling are emerging in the public area of influence.

Similarly, some of the earlier judgments like conducting the NEET examinations, the issue of the national anthem and the Jallikatu matter, to name a few, that reflect ‘judicial’ concerns while lying in the domain of government, and public, overview; the ‘helplessness’ of the government to override public opinion seems to have constrained the apex court to take such compelling attitudes.

It however needs to be understood that such judicial postures will limit executive freedom in democratic sphere which can have long-term implications affecting overall governance. The liquor-ban, for instance, imposes a fiscal burden on state governments in the form of revenue forgone, which is at the expense of some priority expenditure.

More often than not, Public Interest Litigations as the use of the law to advance human rights and equality, or raise issues of broad public concern; and the RTI Act which mandates timely response to citizen requests for government information, have only served to produce unnecessary disturbance and chaos over newly incorporated plans and creating nuisance all around.

Inadvertently, these ‘exercises’ have had the apex court mulling over the disturbing trend of well-meant ordinances not being carried over to a logical conclusion thus forcing it to infuse a certain amount of clarity in their execution.   But such ‘judicial sanctions’ shows the government in a very bad light, its incompetence at managing public affairs more glaring than ever.

It would hence be appropriate to have the Supreme Court entertaining only such cases that require interpretations of the laws, leaving the social problems to the elected governments, so that, as has been opined in some quarters, ‘the judicial pronouncements remain absolute with no scope for personal opinions or inclination’. But is the indolent government assertive enough to manage its affairs without ‘inviting’ the intervention of the judiciary at every conceivable juncture!

(Published on 15th October 2018, Volume XXX, Issue 42)