Sunday, December 9, 2018

Editorial, "3 Crucial Decisions: 3 Great Dissents," in LAW ANIMATED WORLD, 30 September 2018, Vol. 14: Part 2, No. 18 issue

3 CRUCIAL DECISIONS: 3 GREAT DISSENTS

 

This September has seen the Supreme Court of India delivering several landmark decisions on burning issues of the people, perhaps in view of the incumbent Chief Justice’s due retirement on 2 October. Out of these, three – two Constitution Bench and one three-Judge Bench – decisions are particularly remarkable for not only their immense impact but also for the bold, path-breaking single Judge dissents. In the Short Notes and some footnotes to the Aadhaar case decision [conclusions parts only] published in this issue, the profound significance of D.Y. Chandrachud J’s dissent has been underscored. Here this editor confines to stating that at least a 9-Judge Bench ought to have looked into this burning issue involving the privacy and security of billions of our people, considering the ‘big brother watch’ of their domestic and personal details by foreign agencies too. The second great dissent to be much appreciated is that of Ms Indu Malhotra J., who being a woman herself, boldly opposed the convoluted thinking of the majority which made encroachments into the cherished religious/cultural traditions of a particular Hindu temple in Kerala though this editor does not agree with her view of Sabarimalai devotees as a virtually separate religious denomination. We stress that local cultural traditions and some needed religious autonomy are to be respected, as exceptions to the rule of gender equality so zealously advocated by the majority; any rule will have/ will have to have some exceptions. Now to come to the third – more crucial and rights conscious – dissent, it is again that of Justice Y.V. Chandrachud who called for an investigation into the serious allegations hurled by the State against five reputed human rights activists – Varavara Rao, Gautam Naulkha, Sudha Bharadwaj et al – by a special investigation team to be monitored by the Apex Court itself. This editor opines that the single point of the mala fides motivated investigative agencies deliberately violating the strict provisions of Section 41-B of Cr.P.C. conducting illegal searches with imported panch witnesses is itself enough for a constitutional court to issue a writ of habeas corpus acquitting all the five ‘suspects’; in the minimum the majority should have been gracious enough to grant bail to all the five with liberal conditions than consign them too seek such remedies in ‘jurisdictional courts’, which are far off from their home places and perhaps not so responsive to humanitarian appeals even. This editor also feels that it is a good instance for the concerned High Court to altogether quash the absurd criminal allegations against these ‘suspects’. §§§

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