A maelstrom is currently brewing in the Supreme Court over a controversy that involves itself. On a regular day, whilst the Supreme Court is an exciting place to practice for young litigating lawyers and every day issues of constitutional and public importance are decided, over the years there have been decisions that the apex court has passed, which the highest court of our country need not have spent its time over (in my respectful view). Some may call this judicial activism. The NEET entrance test case, the case relating to liquor ban on national highways, the Supreme Court directing the Centre to set up a policy on drought management, the regulation of Bitcoins, write-offs by public sector banks are some examples. Many of them are good precedents set by the Court to galvanise a recalcitrant Central government.
As this year nears an end, this piece examines five such decisions of the Supreme Court in the last two years (2016-17) that have however set some unhappy precedents that will impact India socially, culturally and politically. This is some precedent setting that we as a nation in the 21st century could have done without, or at the very least, some of these were not matters that required the Supreme Court’s judicial scrutiny. There are scores of cases that this court decides every day. This piece only examines five that stood out – especially for the implications of their subject matter or their decision.
Cruelty in a marriage – a Hindu son’s pious duty
The Supreme Court in Narendra v. K. Meena, in 2016, found that it is “horrible” and “terrifying” (their words) on the part of a wife to suggest that her husband separates from his parents given that “in a Hindu society, it is a pious obligation of the son to maintain the parents.”
In this case, which was heard ex-parte since the wife’s lawyer did not appear on two previous occasions, the apex court found three grounds of cruelty on the part of the wife which entitled the husband to divorce (thereby upholding the trial court’s decision and reversing the decision of the high court).
First, that she had alleged that the husband was having an affair with a maid named Kamla but that there was no such maid; there may have been a person named Kamla, but she was a relative and not the maid. Second, that the wife had tried to commit suicide in the bathroom by dousing kerosene on herself, and according to the Supreme Court: “one can imagine how a poor husband would get entangled into the clutches of law, which would virtually ruin his sanity, peace of mind, career and probably his entire life. The mere idea with regard to facing legal consequences would put a husband under tremendous stress,” thus amounting to cruelty.
Third, that the wife tried to have her husband separated from his parents for what appeared to be purely monetary reasons, and that living with parents was “desirable culture for a Hindu son” and “no husband would tolerate this and no son would like to be separated from his old parents”.
Aside from the use of patriarchal language in this judgment, the premise of the husband or son “tolerating” a wife’s wishes itself suggests that the wife is under control of her husband – almost reminiscent of the Victorian “chattel” concept of women. The Supreme Court does not consider that allegations of infidelity in a marriage with a house help etc. are common, especially in divorce petitions. How this amounts to indescribable cruelty is unfathomable. More than the separation, what was more disappointing was that instead of examining the conduct of the husband and his family that may have driven the Respondent to the edge, the court has virtually mollycoddled the “poor husband” and chastised the wife for what sounded like a serious situation.
In our country, where women battle every day biases, desensitised language by our apex court describing what a husband should or would tolerate or what is apparently “desirable culture for a Hindu son” is paralysing. In the end, what the Supreme Court did was right. The family had been living separately for 20 years and it sanctioned the divorce decree like it should have. But perhaps it could have avoided these observations which sadly have the danger of being followed as precedent by countless family court decisions even when circumstances may vastly differ.
Diminishing height of shiv lings – committee formed to investigate
In another recent special leave petition (SLP) – Sarika Niraj Sharma v. Administrator, Mahakaleshwar Mandir Committee, Ujjain (MP) and Ors. – which is presently being heard before the Supreme Court, the issue in question was the deterioration of the “lingam” at the Ujjain temple of Mahakaleshwar due to, as the Supreme Court’s order of May 5, 2017 notes, “reckless rubbing and pouring of adulterated milk.”
The Supreme Court in this SLP first requested the assistance of the additional solicitor general (ASG) on behalf of the Union. The court then added Archaeological Survey of India (ASI) and Geological Survey of India (GSI) along with the Union of India as parties to the petition. The ASG then suggested that an expert committee should be formed with two officers each from ASI and GSI. The court directed for such an expert committee to submit a report and also directed that the expenses of the committee be borne by the Union of India. The court’s order of August 25, 2017, notes, the purpose of the committee was to:
Study/survey/analyse/examine Mahakaleshwar Jyotiklingam of Ujjain (MP) and to prepare a report containing the rate at which the deterioration in the size of Lingam is taking place, if any, and the measures/steps/precautions to be taken to ensure that this deterioration/shrinkage of the Lingam stops.
This expert committee was formed, and it inspected the premises and submitted its report and the court recommended that the temple committee look into the recommendations to regulate timings etc. Several news reports also state that the recommendations that were approved by the temple committee’s resolution included using only RO water, using only 500 ml of such water, restrictions of the amount of milk per devotee etc.
Whilst it is noble that a petition involving this particular site of archaeological importance has already come up eight times in the Supreme Court, is this really a matter that requires examination on special leave? Why must our apex court involve itself, the ASG and the Union (as well as public expenditure) over an issue such as the diminishing height of shiv lingams? There are compelling arguments to be made in favour of a number of other national issues that have been languishing under the burden of an overworked judiciary. Couldn’t this issue have been conveniently dealt with by a local municipal corporation/or some other local body of competence? Mustn’t the time of the highest judiciary be spent in resolving issues of national importance and constitutional freedoms and protection of human rights, not the height of shiv lings?
Some argue that this site is of historical importance and the order looks to protect it. In order however, to appreciate the relative gravity of the situation and the comparative use of the Supreme Court’s special leave jurisdiction, note this – the Death Penalty India Report, February 2016 of the National Law University, Delhi finds that in the last ten years (until 2016) the Supreme Court had refused to grant admission to nine SLPs involving the death penalty of 11 prisoners. This staggering contrast highlights the very real nature of the problem.
Playing the national anthem inside movie halls – guidelines
This next Supreme Court decision is controversial and a lot has been written about it already. The case of Shyam Narayan Chouksey v. Union of India and its November 30, 2016 order pertaining to the mandatory playing of the national anthem inside cinema halls. This is an order ostensibly on the basis of Article 51A(a) (fundamental duty to respect, amongst others, the national anthem and the national flag) of the constitution read with the Prevention of Insults to National Honour Act, 1971.
The November order mandated that the national anthem would be played before the film begins, that the entry and exit doors would remain closed so as not to create any disturbance, that the national flag would be show on screen, that no abridged version of the anthem would be played. The Supreme Court observed that these directions were being issued for the “love and respect for the motherland”.
This was however a case of plain judicial legislation. It was well within the domain of the legislature to formulate rules in this regard as it deemed fit (aside from the fact that the requirement of the national anthem itself seems contrived and misplaced given that patriotism does not need to have such formalistic notions).
Nearly a year later, the Supreme Court appeared to realise this. Although it did not vacate its earlier order, it diluted its effect. In its order of October 23, 2017 (a hearing to consider an application seeking recall of the November 30, 2016 order discussed above), the Supreme Court observed that it was for the Central government to take a call on this issue, use its discretion and not get influenced by the November order. Still – this is not a matter the Supreme Court ought to have gone into at all.
Also read: How the Supreme Court Almost Recalled Its Order on Playing the National Anthem in Theatres
Habeas corpus and annulment of marriage – NIA to investigate possible terror angle
The Supreme Court case of Shafin Jahan v. Asokan K.N. and Ors. (popularly described as the Hadiya case), is an astonishing use of the law. The woman’s father had filed a habeas corpus petition before the Kerala high court, seeking his daughter out, who he alleged had been indoctrinated and converted into Islam, and subsequently married Shafin Jahan.
The Kerala high court in its judgment of May 24, 2017 arising out of a habeas corpus petition under Article 226 of the constitution, while allowing the writ, also annulled the marriage and placed the woman in her father’s custody. The Kerala high court arguably did not have the power to annul a marriage in a habeas corpus writ. Against this judgment, Jahan filed a criminal SLP before the Supreme Court.
The National Investigation Agency (NIA), a party to the petition, moved an IA seeking to conduct an investigation into the matter under Section 6 of the NIA Act, 2008 – which empowers the NIA to investigate into serious offences mentioned in the Schedule to the Act.
The Supreme Court in its order of August 16, 2017, wanted to take into account the concern of the Petitioner that the investigation should be fair. So it appointed retired judge Justice R.V. Raveendran for a fee, to be paid by the Indian government, so that the NIA’s investigation could be conducted fairly under his guidance. The court also directed that the woman would be required to be presented in court during the hearing on merits where the court would speak to her in camera. In a later order of October 30, 2017, the Supreme Court slightly modified this August 16 order, and sought the presence of the woman on the next date (which is scheduled to be November 27).
Also read: Hadiya’s Struggle Against Her Family and the Courts May Soon Resonate With All Indian Women
The Supreme Court also observed that the larger issue in the present matter was the alleged association of the petitioner with Popular Front of India. This is an SLP arising from a habeas corpus petition. The NIA Act, 2008 states that the object of constituting the investigation agency was to investigate and prosecute offences:
Affecting the sovereignty, security and integrity of India, security of State, friendly relations with foreign States and offences under Acts enacted to implement international treaties, agreements, conventions and resolutions of the United Nations, its agencies and other international organisations…
In my respectful view, the marriage of a Hindu woman to a Muslim man (even within the backdrop of allegations of indoctrination etc. which are denied by the Petitioner) did not require the NIA to investigate it with a retired Supreme Court judge overlooking such investigation, and the use of public funds for this process. The direction does not appear to be proportional especially when the conspectus of the SLP would be to examine whether the habeas corpus judgment of the Kerala high court could withstand the scrutiny of the law.
SIT to investigate allegations of wife-swapping
The last decision examined here is the case of Sujatha Kiran v. State of Kerala and Ors. which was a transfer petition filed by a woman seeking transfer of certain quashing petitions from the Kerala high court to the Delhi high court on various grounds. The Petitioner also sought that the investigation of the FIR be sent to the CBI to ensure neutrality. The Petitioner had made allegations of wife swapping between some naval officers and wives.
While declining the transfer and declining to send the matter for investigation to the CBI, the Supreme Court in its decision of May 12, 2016 on the basis of the nature of allegations levelled, directed the setting up of a special investigating team (SIT) headed by a police officer not below the rank of deputy inspector general of police to investigate into the FIR and complete investigation preferably within three months.
With all due respect, this did not seem like a matter that required the constitution of a SIT, let alone reference to the CBI. There are a number of other serious issues plaguing this country that require the setting up of a SIT. This does not seem to be one of them.
Perhaps the judiciary would do well in exercising its judicial discretion in a more circumscribed manner and on issues that are truly of national relevance – especially when setting up special committees on public funds.
Shalaka Patil is a lawyer who works in dispute resolution in a large law firm in Mumbai. She takes a keen interest in matters of public policy and constitutional law. Views expressed are personal.