Lordships, This 'Other Side' Jurisprudence Is a Self-Goal |
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It is open season for every wise and pretentious person to join the chorus bemoaning the crumbling of the “rule-based” global order but no one seems to be bothered by the unhampered march of our domestic rule-based disorder. And, what should be most disquieting is that the higher judiciary is unwittingly lending its imprimatur to the incipient “ordered” disorder.
This, perhaps, an extreme judgment, but no other inference suggests itself after a Chief Justice of India-led bench propounded a jurisprudence of “the other side”. The bench had before it a petition filed by some eminent people, seeking some kind of restraint on hate speeches by many chief ministers and officials. The three judges, in their wisdom, thought the petition was not “objective” and, what is more, the petitioner was chided because, as the lordships put it, “you have not cited a single example from the other side.”
This logic will surely be baffling to any citizen. In a civilised society and a constitutionally-governed polity, there can be no “other side;” there is only the law and it is for the judiciary to say what the law is. The judge has a mandate to determine whether a public action by a public functionary is in conformity with the letter and spirit of the law, and that determination cannot possibly be predicated on whether the offending public authority/ functionary belongs to this or that........