Rau mein hai raksh-e-umr kahaan dekhiye thame

Na haath hai baagh mein, na pa hai rikaab mein

(The horse of the age is on the gallop, one does not know where it will stop,

The rider neither has the reins in his hands, nor feet in the stirrup)

— Mirza Ghalib

The above sher (couplet) of the great Urdu poet Ghalib accurately describes the Indian Supreme Court today.

Its recent decisions show that the Court has embarked on a perilous, hyper-active, unpredictable path, much like the US Supreme Court in the 1930s, a journey which may end in total discomfiture.

Has the SC become hyper-active and started on a perilous path? (Photo: India Today)

A superior court, particularly a court at the apex of the judicial hierarchy, must exercise great self-restraint, as Justice Frankfurter, the celebrated judge of the US Supreme Court repeatedly pointed out, because there was no court above it to correct its errors, and its verdicts are the law of the land.

There are many laws which the Supreme Court judges may regard unwise or outdated, but that by itself does not entitle them to declare such laws unconstitutional. As Justice Holmes, the renowned Judge of the US Supreme Court, pointed out in Lochner vs New York, the Court cannot impose its own theories and subjective notions into the Constitution, and as Justice Cardozo, the acclaimed judge of the US Supreme Court said, "The Judge is not a Knight Errant roaming at will in search of his own ideal of beauty and goodness" (Cardozo's The Nature of the Judicial Process).

But how is the present Indian Supreme Court (or at least some of its judges) behaving?

Some judges have been making laws, like the judges who issued legislative directives in the cases relating to section 498A IPC (Rajesh Sharma vs State of UP, a judgment which was later modified by a larger bench in Social Action for Manav Adhikar vs Union of India), or regarding the SC/ST Act (Subhash Kashinath Mahajan vs State of Maharashtra).

In several decisions, even Constitution Bench judgments, it has been held that legislation is the job of the legislature, not the judiciary, vide Divisional Manager, Aravali Golf Course vs Chander Haas since there is broad separation of powers in the Constitution between the three organs of the state, and one organ should not ordinarily encroach into the domain of another.

Other judges are imposing their own personal views and predilections into the Constitution, which goes against the repeated admonition of celebrated judges like Justice Holmes and Justice Frankfurter

For instance, in the recent decision of the Court in Joseph Shine vs Union of India (relating to the crime of adultery in section 497 IPC) one of the judges on the bench (Chandrachud J) observed:

"Human sexuality is an essential aspect of identity. Choice in matters of sexuality are reflective of the human desire for expression. Sexuality cannot be construed purely as a physiological attribute. In its associational attribute, it links up with the human desire to be intimate with a person of one's choice. Sharing of physical intimacy is a reflection of choice. In allowing individuals to make those choices in a consensual sphere, the Constitution acknowledges that even in the most private of zones, the individual must have the ability to make essential decisions. Sexuality cannot be disassociated from human personality. For to be human involves the ability to fulfil sexual desires. Autonomy in matters of sexuality is thus intrinsic to a dignified human existence. Human dignity both recognises and protects the autonomy of the individual in making sexual choices."

He goes on to say, "Section 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence."

Justice Chandrachud's recent observations on adultery could horrify large sections of Indian society. (Photo: PTI)

Now, these observations may be the own personal view of Justice Chandrachud, and may be applicable to American or European society — but certainly not to Indian society which is still deeply conservative. Most Indians regard it horrifying, revolting and highly offensive for an Indian wife to have sex with a man other than her husband. Few in India will agree with Justice Chandrachud that even after marriage, a woman must have the choice of having sex with whomever she wants, and that it goes against her dignity, and therefore against Article 21 of the Constitution, to place any restriction on her in this connection.

In my view, Justice Chandrachud has thus displayed a lack of self-restraint by introducing his own subjective notions of women's freedom and dignity into Article 21, which is not expected of a judge of a superior court.

It is a settled principle of interpretation that there is always a strong presumption in favour of the Constitutional validity of statutes, and every effort must be made by the Court to uphold its validity, even if it required giving it a strained interpretation vide Govt of Andhra Pradesh vs P Laxmi Devi. But the approach of several 'modern minded' Indian judges today seems to be to strike down any law which does not please them, or is not in accordance with their subjective notions and abstract theories, irrespective of the social context of India and what others in India believe. And of course Articles 14 and 21, which can now be construed to mean whatever one wishes, are handy tools to attain this end.

In his dissenting judgment in Griswold vs Connecticut, Justice Hugo Black of the US Supreme Court warned that 'unbounded judicial creativity would make this Court a day-to-day Constitutional Convention', and in his 'Reflections on the Reading of Statutes', Justice Frankfurter pointed out that great judges had constantly admonished their brethren for the need of discipline in observing their limitations.

In Lochner vs New York, the legendary Justice Holmes observed that 'the Constitution does not enact Mr Herbert Spencer's Social Statics (a book which advocated the laissez faire theory), and he went on to say that the Constitution was made for people holding fundamentally differing views. He further said that men whom he would certainly not pronounce unreasonable would uphold the law which the majority of the Court was striking down.

Voice of reason and restraint in the Sabarimala case. (Photo: India Today)

In the Sabarimala case, Justice Indu Malhotra, the sole dissenting judge has taken a correct view, and has displayed the balance and restraint which characterises great judges. She has noted that India is a country with great diversity, and there are thousands of temples, mosques, gurdwaras, dargahs, etc., each having its own particular rituals and practices. It would be extremely imprudent for the judiciary to interfere with these.

But unmindful of this admonition, the majority has struck down a practice prevalent for centuries in the Sabarimala temple on its own notions of religious freedom, equality and gender justice.

By doing so, it has opened up a Pandora's box, which will be an albatross on the necks of judges and administrators until the judgment is reversed.

Will the Supreme Court now ensure women can enter here? (Photo: Reuters)

For instance, though in theory, there is no prohibition in Muslim women going to mosques, in practice, there are hardly 1 per cent or 2 per cent mosques in India which permit entry to them, and they have to pray at home.

Will the Supreme Court display the same activism and direct all Indian mosques to give entry to Muslim women? Or is its bravery selective and confined to Hindus?

Also Read: Why I don't agree with Supreme Court's reasoning to decriminalise adultery