…moving inwards…

Still talking about the court. What do they think they’re up to?

First there was that crazy “non-consummation is a ground for divorce” judgement. Then there was the ‘recommendation’ to frame a law on divorce on the grounds of irretrievable breakdown of marriage. And now the “discard the evidence of a hostile witness“. Let me take them one at a time.

Non-consummation used to be a ground for divorce only when it was due to a medical condition. Basically, if you couldn’t, then that was a ground for divorce (I suppose because sex was considered as the reason people got married). Now, the question is not whether that’s a rational assumption. It’s just this – what the court did here was to ignore years and years and years and years of precedent. There’s a principle that a lower court is bound by the decisions of the higher courts, and similarly, smaller benches are bound by larger benches. This was two judges. In those many many years I mentioned, I’m sure there have been larger benches that laid down that principle. Now what? Let’s leave it to the lawyers to quibble over whether this is per incuriam, a more interesting question is ‘what now?’ Does this mean the court is appropriating to itself the power to do something in defiance of precedent?

Not very interesting, except to lawyers, taken by itself. But then there comes the ‘strong recommendation’ to review the law on grounds for divorce. Is the court telling the legislature what to do? Of course not! That woud be the end of democracy as we know it! The court wouldn’t dream of such a thing!!!* Interesting, nonetheless.

Taken together, a definite wanting-to-look-activist court, no doubt. But what’s new about that? Activism is now just cud. Except, this is Family Law. Aha. The sacred cow. The Private Sphere. Even more importantly in India, Personal Laws (aka religion-based laws). Quo vadis, SC?!

The third thing is just something I wanted to rant about – till I realised I haven’t yet read the judgement. Shall therefore suspend comment forthwith.

*tee hee hee. of course, they’ve done that before, and the sky really didn’t come crashing down…remember Vishakha?

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5 Responses

  1. Why shouldn’t the court reccomend a change in laws to the legislature? It definitely is more in touch with the implementation of that law than the legislature, hence has better chances of figuring when a particular law has become obsolete.

    Also, don’t remember Vishakha, pliss to tell.

  2. Nothing wrong with recommendations. However, there’s been quite a bit of angst about the court being ‘activist’ – going beyond the settlement of disputes and interpretation of the law to actually end up making law, which is problematic because parliamentary democracy is based on the separation of the legislature from the executive from the judiciary.

    As for Vishakha, it was a case in which the Supreme Court laid down ‘guidelines’ for dealing with sexual harassment in the workplace – one of the clearest examples of judicial legislation ever.

    And it’s ‘pliss to be telling’, you know.

  3. Well, I’ve always been a proponent of the “Politicians will be rendered redundant” theory, so really wouldn’t mind the judiciary legislating. At least they’re a smarter, more aware bunch of people than the entire legislature put together. I speak as a layman, however. I remember there being a reason for separating the two from my Civics text book of 10th standard, but that’s as far as my knowledge extends.

    Sounds interesting, must read up.

    It’s ‘pliss to tell’. Don’t you know your tenses at all?

  4. Obviously you don’t know your tenses in the specific brand of English spoken in the Southern states of India… Which is where the ‘pliss’ is to be coming from, you are to be noting!

  5. Thousand apologies. I should be knowing better than to be arguing with authentic South Indian and who is being a lawyer at that.

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