One may criticise our Supreme Court for some of its judgments, but no person can describe it as a passive judiciary. The recent judgments of the Court clearly portray it as an active, rather an overactive judiciary.
No one can claim unrestricted entry to any temple or religious institution or a public meeting. A person with proven criminal antecedents may be rightly denied entry. But, surely, it is irrational to deny entry to a certain class of citizens, for example, women, because of a natural physical phenomenon like menstruation. Menstruation is not a crime. This practice, prevalent at the Sabarimala temple in Kerala, ignited the jurisdiction of our Supreme Court which battled with this issue, and occasioned the dissenting judgment of Justice Indu Malhotra.
Lengthy and erudite arguments were advanced by parties who championed a woman’s right of entry based on the guarantees of equality and prohibition of discrimination inter alia on the ground of sex. Parties supporting the no-entry practice relied on Article 25 which guarantees the right to practise and profess religion. They overlooked that this Article is “subject to other provisions of the Constitution”. In other words, subject to Articles 14 and 15, which prohibit discrimination inter alia on grounds of gender.
Another argument was the right of the “Deity” Ayyappa, who is believed to be in disfavour of the entry of women of certain ages in a temple and whose divine right, it is argued, should be respected.
Ordinarily, the Supreme Court judgment should finally settle any controversial issue, but not in our country. This is evident from the heated debates on the issue on TV channels and in public meetings. Interestingly, many women support the no-entry rule, not on legal or constitutional grounds, but on the misconception that a menstruating woman is not “clean” and, therefore, allowing her to enter the temple would be a desecration of a holy place. To keep the pot boiling, the issue has been referred to a larger bench of seven judges. It is debatable whether the seven judge bench judgment will finally put a lid on the matter. The real remedy would be to cleanse the minds of the supporters of no-entry to women doctrine.
The Rafale case is another instance worth noting. The Supreme Court dismissed the review petitions filed against its previous order, which found nothing wrong with the Rafale transaction. This has not excited the public. What has is the Supreme Court’s dismissal of the contempt petition against Rahul Gandhi for him attributing his comment — “chowkidar chor hai” — to the Court itself. Rahul Gandhi tendered an unconditional apology, which was accepted, but with a strong warning to him to be careful in the future. I think Rahul Gandhi was dealt with leniently. He is an influential political leader who should not make statements which are untrue and betray disrespect for the Court.
Another Supreme Court judgment which has hit the headlines is its decision to uphold the Karnataka Speaker’s orders disqualifying 17 defectors. The Supreme Court, however, quashed the Speaker’s order to the extent that it prevented the disqualified candidates to contest elections till 2023. The Court’s exposition of the law relating to the inter-play between resignation and defection is welcome.
It ruled that the resignation does not take away the effect of a prior act that incurs disqualification. The Supreme Court made instructive observations about the role and function of the Speaker in dealing with cases of disqualification of a candidate on the grounds of defection. It ruled that Speakers are not given a free pass to sit on resignation letters indefinitely. Once it is demonstrated that a member is willing to resign out of his free will, the Speaker has no option but to accept the resignation. The Speaker is not empowered to consider the motives and circumstances whenever a resignation letter is submitted. The Supreme Court deplored that Speakers sometimes tend not to be neutral.
Hopefully, Speakers will pay serious heed to the Court’s observations. When the anti-defection law was enacted in the Tenth Schedule of the Constitution, it was believed that the vice of defection would be effectively curtailed. Regrettably, subsequent developments have belied the hope. The remedy lies not so much in amending the law or introducing fresh legal provisions, but in arousing the conscience of every honest citizen to reject the defector at the poll booth.
This article first appeared in the print edition on December 3, 2019 under the title ‘A Judicious Balance’. The writer is a former attorney general of India.
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