It has been an unusual October at the Supreme Court. Within a span of just 18 days, the apex court reversed five of its own decisions.
The trend started with the ban on sale of crackers. The court that had on September 12 decided to allow limited sale of crackers in Delhi-NCR went on to withdraw its order on October 9 and impose a blanket ban, leaving shopkeepers and traders, who stocked firecrackers ahead of Diwali, in the lurch.
Then again, on October 13, a three-judge Bench, headed by Chief Justice Dipak Misra, felt that the apex court’s July 27, 2017 decision directing the police not to immediately arrest the husband and in-laws on filing of a complaint under dowry harassment provision (Section 498A of Indian Penal Code) was “anti-women”.
The idea behind the July decision was to ensure that the dowry harassment law is not misused and in cases where no “tangible physical injury or death” is caused, a Family Welfare Committee set up at the district-level can work out a settlement between the husband and wife.
But this reasoning did not appeal to the CJI-headed Bench which made its disagreement clear remarking, “The judgment seems to be an exercise in the domain of the legislature. We are not in agreement with the view taken (in the judgment) as it is liable to affect the rights of women.” The Centre’s response, likely this week, could well set the stage for reversing the decision.
Similar was the case when the SC took up the issue of playing the National Anthem in cinema halls, almost a year after this rule was made mandatory by the court itself on November 30, 2016.
A three-judge Bench on October 23 felt it was not the job of courts to deliver such judgments and passed the buck to the Centre for framing guidelines, if any, on playing of the National Anthem in public places. Coincidentally, both orders were passed by a Bench headed by Justice Dipak Misra (who was not the CJI then).
Strikingly, the November 2016 order observed that when the anthem is played in cinema halls “it would instill the feeling within one, a sense of committed patriotism and nationalism.” Far from it, the recent order of October 23 observed, “People go to cinema halls for undiluted entertainment…We cannot assume that one who does not stand up or sing the National Anthem, is not patriotic or much worse, that he is targeted for being an anti-national.”
It is not uncommon for the apex court to revisit or correct its own decision. For instance, on April 11, 2016, a five-judge Constitution Bench recalled its previous order of July 18, 2013 scrapping the common medical/dental admission test called the National Eligibility Entrance Test (NEET). The five-judge Bench was headed by Justice AR Dave (as he then was) who dissented with the majority decision scrapping NEET. He observed that the majority view did not consider binding precedents of law and no discussion was held between members of that Bench before the order was pronounced.
As for the reversal trend, on October 27, a two-judge Bench stayed its three-day-old decision demolishing a multi-level parking at Taj Trapezium Zone (TTZ). Incidentally, it was the same Bench which had ordered demolition. It later directed a status quo on the construction work and sought a plan from the Uttar Pradesh administration to protect Taj Mahal and its periphery.
In yet another such instance, a two-judge Bench on October 11 allowed admissions to super-specialty courses knowing fully-well that by doing so it was going against a three-judge Bench’s order passed just two days ago refusing permission for the same.
The Supreme Court is a court of record as provided under Article 129 of the Constitution and hence, all its decisions remain in perpetuity. Also, the decisions rendered by the Supreme Court become the law of the land binding all courts within the country by virtue of Article 141. Clothed with so much power and privilege, the apex court’s reversal trend is surely unusual.