The lack of realism in the judiciary is having very real consequences

There runs an alarming lack of realism in some of the most high profile decisions by the Supreme Court, and there is much cause for concern. Three cases instantly come into mind: One is where the Supreme Court ordered that the National Anthem be played in cinema theatres, of which enough and more has been written about, the other two being the Supreme Court directions cancelling the licences of bars and other liquor retailers who had their business within 500 metres of a National or State Highway and the recent Supreme Court direction banning the sale of fireworks in the National Capital Region (NCR) in the week preceding Diwali. The ban on the sale of fireworks in the National Capital Region was for a period of 22 days, in an effort to reduce ‘pollution’ that the region has to face. Whether this will change the air pollution in the city is doubtful, considering that the bigger problem is crop burning in the North West of the capital. Needless to say, the ban failed, as studies indicated.

While I have no doubt of the good intentions (The road to hell is paved with, and whatnot) I have much grouse with such an impractical and frankly baffling ban. There are very many issues that I am more than happy to talk about — the problem of unhindered judicial law-making like this, the effect on the economy and free trade & commerce in the country and so on and so forth. The primary matter of concern in this article is the lack of realism and practicality.

Take for instance the Supreme Court order banning bars near National Highways (which I had mentioned earlier)- ostensibly, this was to prevent instances of “drunk driving” on National and State Highways. One must indeed question the rationale of the Supreme Court in making such a decision. Have they decided to fly logic and rationality to the winds when giving out such an order?

The Supreme Court, which initially gave out the order for the National Highway case in December 16, 2016, had to revise the order multiple times, carving out exceptions for small towns, Sikkim, Meghalaya, and certain districts of Uttarakhand. This was an obvious consequence of judicial law-making, which did not take into account the whole set of facts and circumstances of each and every state. Moreover, the response by the State Governments, who denotified national highways, to prevent the humongous loss of revenue that they would have faced if the bars had closed.

The Supreme Court failed to take cognizance of the massive setback that the National Highway Liquor ban would cause to the hospitality industry, and commerce in the country generally. The Supreme Court repeated this again while giving out the ban of firecracker sales in the National Capital Region, which obviously led to huge losses for traders who had legally purchased and dealing in a legal consumer good. The consequence of the ban was not that no firecrackers were not burst, or that no fireworks were sold in NCR, or that the air quality of the city improved as a result. What was the result of the exercise than the loss of lakhs, if not crores of rupees loss that the businesspersons faced?

In common law, there is a concept of a “reasonable man” that is used by the court as means to determine the usual course of behaviour that a man would adopt. This is more or less the standard of determining the standard of behaviour that the judiciary thinks the citizenry should have. Conversely however, can the citizenry expect the judiciary to adhere to reasonable standards? Orders by the Supreme Court in the NH Liquor case, the Delhi Fireworks ban order, the National Anthem order all give cause to a grievance against the Supreme Court. How long can the Supreme Court continue to act irrationally, and dish out orders that logic and reason, what is the citizenry to do?

The fact that the Supreme Court is straying onto the domains of the legislature and executive is bad enough (and is an offence equal to, or greater than) the fact that the orders of the Supreme Court defy logic and reason, and impractical in many cases.

Do not forget that the Supreme Court is a self-appointed body, whose members anoint their own successors in a nontransparent, arbitrary mechanism that the Court devised itself, and is now more or less exercising completely unchecked powers, and is now running riot. There is much to be worried about.

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