Unsettling Judicial Overreach

K.A.Badarinath

Open debate on legalizing ‘same sex’ marriages, stakeholders consultation must precede Parliament enacting a law. Courts have no role

This is not the first time that courts have gone on an overdrive with judicial over-reach. Supreme Court’s stand on legalizing same-sex marriages is yet another example of its bid to trample on powers of the executive and Parliament.

While demarcation of powers between the three is clear, repeated bid by the courts to stamp on someone else’s toe is making things worse for an already chaotic but working democratic setup that India has evolved over 75-years.

During the ‘Amrit kal’, the intervening 25-years to the centennial, this transgression by judiciary has to change in New India.

At one point of time, Honourable Lordships were trigger happy to sit on judgment as to whether a girl or woman can avail menstrual leave not leaving it to states, governments or stakeholders to decide. Supreme Court made attempts to assign itself the task of appointing three commissioners to Election Commission of India which is crass.

When the Covid-19 pandemic was at its peak in 2021, Supreme Court and High Courts expected Central Government and states to report on ‘virtual day to day basis,’ as to who were getting vaccinated and who were not.

Latest is Supreme Court taking upon itself to decide on legality of same-sex marriages. Should this key socio, cultural, religious, dharmic and economic issue be left to courts?

Erroneously, Article 21 and 19 (1) (a) of Constitution of India were invoked citing right to expression and dignity of those that favoured same sex marriages. There seems to have been temporary loss of memory that application of Section 377, Indian Penal Code was turned unconstitutional.

And, thereby dignity and expression of homosexuality or lesbianism was restored giving men and women their right to sexual preferences in relationships. These relationships have been decriminalized My Lordships!

Should courts be allowed to decide how one lives or marries? Do courts have the mandate to tamper with the institution of marriages in India that is not limited to just two individuals of opposite sex but the families and society at large?

On the other hand, power to legislate on a delicate issue like marriages is definitely in the domain of the Government, Parliament, elected policymakers and definitely not with judges that do not support openness in their own appointments. Otherwise, there’s no reason why National Judicial Appointments Commission bill of 2014 was vetoed.

Incidentally, Rashtriya Swayamsevak Sangh has rightly pointed out that marriages and related rituals were very sacred and sacrosanct in Hindu way of life that largely define and provides distinct face to Indian society.

There’s awareness among stakeholders on deep divide and complexity in accepting same-sex marriages. In majority countries globally, same-sex marriages have not been legalized even if such relationships have been. In fact, in Indian context decriminalizing the same sex relationships in 2018 was humane in approach.

In this backdrop, referring the same-sex marriages to a five-judge bench invoking Section 145 (3) of Indian Constitution needs closer scrutiny by stakeholders.

Instead of making desperate attempts to hog headlines day after day, courts and honourable judicial officers should put their own house in order. Administering justice to common man or woman should take primacy in the way our judicial institutions function and not the urge to hog headlines next day, come what may.

Reform in judicial system should be top priority of this elite club of judges that seek to run affairs of the country from precincts of their chambers.

Phasing out adhocism, bringing in accountability, removing corruption and lobbying in courts that normally goes unreported or under-reported should be primacy of the Chief Justice of India who leads a pack of wise men and women.

Administering justice in time is an issue that’s time and again flagged by several commentators including some top judicial minds. Over 4.9 crore out of five crore cases are pending in district courts across the country without respite to the commoners as per figures quoted by law minister Kiran Rijiju.

As per the National Judicial Data Grid, over 93 crore cases were pending in subordinate courts, 49 lakh cases in High Courts and 57,987 cases in Supreme Court as of December 2022. Instead of restricting itself to constitutional issues, Supreme Court turning itself into regular court of appeals may be just one reason.  More than that, the top court unwilling to play its role in reforming the system is the second reason. Thirdly, indulging in issues that may or may not be of its concern like the ‘same sex marriages’ could be yet another possible reason.

During ten years of policy paralysis of United Progressive Alliance regime of 2004-13, judicial overreach got into high gear. Fledgling era of coalition governments and dirty political bickering etched out ground for judicial mis-adventurism by extension too.

Highest judicial officers led by his Lordship Chief Justice Dhananjaya Y Chandrachud should take the first step towards making courts and related institutions relevant to 1.4 billion Indian people.

My Lordships give judicial system a chance!  

(Author is Director & Chief Executive of New Delhi based non-partisan think tank, Centre for Integrated and Holistic Studies. Views expressed are personal)

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