Events& Issues

New Delhi, 31 January 2019

Supreme Court Orders

INCREASING CASES OF VIOLATIONS

By Dr S. Saraswathi

(Former Director, ICSSR, New Delhi)

The judiciary, the main pillar upholding the Constitution, is increasingly facing resistance not excluding open defiance of its orders from other pillars of the same Constitution. It may not be an open struggle for supremacy, but contains seeds of disruption of harmonious functioning of democratic institutions towards a common goal of orderly governance.

In recent years, a trend in the management of public affairs is noticeable where the judiciary is dragged into settling the validity of different kinds of legislative decisions and executive orders.  It is a healthy development in so far as it indicates growing public awareness to public issues expressed through public demands and protests. It is unhealthy whenever it confronts violation of the rule of law ignoring lawful means of seeking answers to problems and encourages direct action ignoring established institutions to force favourable solutions from the courts.

The need for judicial activism and intervention to promote reforms and change has elevated the importance of the judiciary. People hitherto avoiding the doorsteps of courts as entry into a battlefield for a prolonged fight now have no hesitation to voluntarily seek judicial clearance on even policy and procedures of the government and its organs.

The nature of interaction between the legislature, executive, and the judiciary in recent years is becoming significant to determine and uphold the three principal concepts – parliamentary supremacy, good governance, and judicial independence. Some instances may illustrate the nature of the struggle among them so that means of ensuring stability and progress can be evolved.

The case of dance bars in Mumbai, for instance, is an outstanding example of executive-judiciary interaction. These bars had been brought under regulatory rules by the government since 2005 when they were first banned, and the courts have been intervening to protect the interests of the dancers and bar owners. The Bombay High Court overturned the ban order in 2006. The State government went on appeal to the Supreme Court and obtained a stay order. In 2013, the Supreme Court declared the ban order as unconstitutional and lifted it. The government circumvented the order by an amendment to the Maharashtra Police Act 2014 and that too was overturned. Then in 2016, the government passed the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants, and Bar Rooms and Protection of Dignity of Women (Working therein) which was upheld by the Supreme Court.

Government orders issued from time to time to remove the scope for “immoral activities” in the name of dance provided for compulsory CCTV surveillance and ban on serving liquor.   Recently, the Supreme Court quashed these government orders noting that the regulations were totally disproportionate, unreasonable, and arbitrary. The court agreed only to limit the timing of the bars to five-and-a-half-hours from 6 pm to 11.30 pm and to prohibit showering of money on the dancers. The court said it was not right to hold that people misbehave after consuming alcohol or to believe that such behaviour happens only in dance bars.

The Supreme Court said that governments cannot impose their notion of morality on the society and brushed aside the contention of Maharashtra Government that dance performances at beer bars, hotels and restaurants were likely to injure public morality. While agreeing with the bar on obscene dances, the bench disapproved total ban on dancing. It said, “a practice which may not be immoral by societal standards cannot be thrust upon the society as immoral by the State with its own notion of morality and thereby exercise social control”.

More significant is the report that the Maharashtra Government is firm on its decision regarding closure of dance bars in the State despite the apex Court upholding the constitutional validity of running these bars. The government cannot straightaway act on the orders of the court as long as the existing Act of 2016 upheld by the Supreme Court is not changed.

This is a typical case of conflict between judicial view and government policy on moral standards causing a direct confrontation between the judiciary and the executive. The judgement and the observations go against moral standards assumed by governments and imposed on the society when they do not violate legal prescriptions which also care for some degree of morality.  

It was also argued that the ban on dance bars put in 2005 had not benefited the dancers, but on the contrary led to increase in commercial sex work. The judiciary had to think of probable consequences of executive decisions by intruding even in policies while the executive searches ways to overcome judicial hurdles to push through its policies/programmes.

This episode depicting a direct confrontation between the Supreme Court and the Government of Maharashtra is not at all a rare instance. They are common taking bulk of judicial time these days. 

In another instance relating to the Sterlite Copper Plant in Tuticorin, Tamil Nadu Government, under pressure from local parties to close the plant, and violent protests over pollution concerns issued an order for closure of the plant on 28^th May 2018 and has resorted to various means of effective enforcement of the closure including cutting off power supply despite the clearance given by the National Green Tribunal on 15^th December for reopening the plant. The tribunal set aside the Tamil Nadu Government’s order for permanent closure of the plant. The government has appealed to the Supreme Court challenging the verdict of the tribunal.

Entry into sannidhanam of Sabarimalai Temple in Kerala by women of all ages is indeed a historic event that has no parallel to reveal how complicated is the growing conflict between the judiciary and the executive -- the former keen on upholding the law of the land and the latter playing to the gallery most of the time as a political necessity.

The executive on the scene can neither follow court verdict nor reject it, for it has to face a third most important party --  people comprising devotees, women activists and  general public -- and  cannot ignore them. Kerala Government’s affidavit filed in the Supreme Court in support of its claim of women pilgrims at the shrine gives a list of 51 women in the age-group 10-50. But, it has turned out to be questionable on various counts not excluding age and sex of the pilgrims listed as women. When religious faith and public sentiments are involved, the interaction between law, justice, and administration gets more complicated.

Violations of Supreme Court orders by governments are not rare. Karnataka’s refusal to release Cauvery water as per Supreme Court order or Kerala’s refusal to honour court verdict regarding the height of Mullaperiyar Dam are cases of flagrant violation of court directives rather than inter-State conflicts.

Executive-judiciary confrontation has grown with spread of protest politics for anything and everything. Despite High Court’s directives and Government’s warnings, Government Employees Organisation and Tamil Nadu Teachers’Organisations are continuing their indefinite strike. Evidently, Jallikattu protest has become a model for protesters who hope to win by mobilising people’s support against the government and/or the judiciary.

The four pillars are erected to uphold law and order and not to pull down the structure by individual will and action. ---INFA

(Copyright, India News & Feature Alliance)