Flip-flops of the superior court

Last year, on November 16, 2016, a three-member bench of the Supreme Court passed an order banning storage and sale of crackers and allied fire works “till further orders”. 

In July 2017, the manufacturers of fire works petitioned the court complaining of deprivation of their livelihood on account of the total ban and sought modification of the 2016 order. 

On September 12, 2017, a different bench of two judges opined that a sudden, total prohibition on crackers would have large-scale repercussions. Hence the court advocated a graded approach and gave a series of directions, including permitting the authorities to issue temporary licenses to store and sell fire works. The news naturally gladdened cracker dealers, but not for long.

On October 9 this year, another three-judge bench of the court dealing with another set of petitioners in the same matter directed that the order of September 12 would not be operative until November 1 and the ban order of November 2016 will come into force forthwith. 

That is not the end of the story — the traders in the region moved the court pleading that on the strength of the court’s order of September they had made huge purchases which will go waste, causing irreparable loss to them. Their plea was rejected on October 13, with a reiteration that there’s to be no sale of crackers this Diwali in NCR.

Personally I hate crackers. But the more serious question that the case has thrown up is about the functioning of the country’s highest court — Why such apparent flip-flop?

When we say, “The Supreme Court has ordered…” what comes to mind in the cracker case? Is it the November 2016 order, or the one of September 2017, or latest one? 

Article 124 of the Constitution, establishing the Indian Supreme Court as it stood in the year 1950, prescribed the number of judges in the court as seven in addition to the Chief Justice. For many years thereafter it remained unaltered. Subsequently, the Parliament in stages prescribed larger numbers of judges — today the number is 31, the Chief Justice plus 30. 

Unlike the Supreme Court of the US where all its nine judges are required to sit as a court to decide every case before it, the Indian Constitution gives power to the court to frame rules with the approval of the President — among others — to fix the minimum number of judges to sit in a bench, normally two. But for deciding important questions relating to the interpretation of the Constitution and for answering a presidential reference, the minimum number of judges sitting together shall be five.

So, theoretically, the 31 judges of the apex court may sit in divisions as “Supreme Court of India”, and every such benches can pass orders on PILs, venting their subjective views. 

As a remedy, if the Supreme Court makes rules prescribing that only benches of five or more judges can take up PILs, possible conflicts between multiple verdicts would be reduced. 

Take the case of the court-imposed ban on roadside liquor shops. There were many inherent problems in the issue and the solution offered, but most were not envisaged by the court. As days passed, serious consequences of the order surfaced and changes after changes had to be made. Similar was the story of the cricket reform effort. 

Obviously, these are not matters for courts to administer through writs. 

However, it is too late in the day to dissuade courts from such escapades — the latest is that the court would soon consider making taxi rides safer for women. 

Making five-judge bench mandatory may introduce some balance, along with a curb on PIL because it is not easy to assemble five judges too often. 

Think of the traders who must have made huge investments to earn some legitimate profits during the once-a-year opportunity. They now face disaster unless they circumvent the court’s order. Their right to life is surely threatened while the PIL petitioners’ fear that crackers may cause serious air pollution — thus endangering their right to life — is at best a suspicion. 

Experience of prosecuting the Talwars in Aarushi murder case must serve as a warning to courts about chasing suspicion.

Law by it self is not an ass — the age-old principle is that a court, while exercising its discretionary power like passing an order of injunction, must take into account the balance of convenience and comparative hardship to all concerned. The court should not pass such orders merely because it is lawful to do so. 

These fundamentals relating to administering law are valid even today in all types of cases. 

The courts of November 2016 and of October 9, 2017, hope that a cracker free Diwali will provide an opportunity to test the effect of fire works on air pollution in the NCR — a sort of a dress rehearsal. Please note that there is no express ban on use of crackers. The ban is on storage and sale. 

Now the question is, should the police try to prevent the use of fireworks that may have already entered homes? There is no express direction in this regard. As of now the burning of stubs by farmers is accused of being the cause of worsening air quality in NCR. In some parts of Punjab/Haryana, use of fire works between 6.30 and 9.30 in the evening of Diwali is permitted. 

The time-honoured principle that the court would not normally pass orders compliance of which would require long and continuous supervision by the courts is sound even today. 

The experiment of “continuing mandamus” or court monitored investigation introduced through Vineet Narayan case (1997) has failed — look at the cases of cleaning of Ganga or Yamuna, or the “forest benches”. Every failed order of a court is a blow to the judiciary’s reputation because the bedrock of the judiciary is public confidence.