Safi H. Jannaty for MuslimMirror.com
Two recent pronouncements by courts in India pose questions on the power, discretion, prerogative and jurisdiction of judiciary as well as the well-established hierarchy of the court system. They also reflect an overt reaction and active involvement of courts in controversies or issues which mostly the media create or stir up. If one could stretch the argument and ask should courts be influenced by the talks in the media or talks in different sections of the society or groups.
First, let us revisit the order by a bench of the Supreme Court of India that all cinema theaters must play national anthem before the start of the movie and the national flag be displayed on the screen while the anthem is being played. It requires all of the people present in the cinema halls to stand up as a mark of respect for the national anthem and the doors of the hall be shut to avoid any movement during the recital of national anthem. The two judge bench continued and stressed in their order that the love and respect for the motherland is reflected when one shows respect to the national anthem and to the national flag. Finally, they concluded that it would instill a sense of committed patriotism and nationalism.
The spirit behind the decision or its merits and demerits notwithstanding for the time being, let us first dissect the entire decision in the light of the petition and analyze it from the legal angle. At first, when one reads the actual complaint, one would notice that the petitioner, Shyam Narayan Chouksey, was duly and I would add, rightfully, concerned with the disrespect shown to national anthem and claimed that sometimes it was being played or sung in circumstances which were not permissible. The emphasis was laid on showing requisite and necessary respect when the national anthem was being sung or played. The key point to note here is that the petitioner was not requesting the court to force or rule that the theaters or other public venues or places be ordered to play national anthem or display national flag at certain specific times or days and in certain manner. While there is no doubt that the hon’ble judges of the Supreme Court had the jurisdiction or the power to determine the complaint in the light of the provisions stipulated in Prevention of Insults to National Honour Act, 1971. They were absolutely right in prescribing the conditions or guidelines which they deemed fit to ensure that the national anthem or national honor shall not be disrespected in any manner. The Hon’ble judges rightfully and fairly ordered that the national anthem be not used for commercial gains or benefits as well as correctly directed that the national anthem be not dramatized or used as part of any variety show. However, one could rightfully question the reason or rather the necessity of pronouncing an order on an issue which was not raised before the court and the need to direct the government to enforce their order to have the national anthem played before each show in all cinema halls in the country.
Traditionally, the apex courts all over the world, have been determining issues or matters brought before them and they have rendered their decisions mainly on the point of law. In essence, their primary role has been to ensure that the laws passed by the legislature or orders issued by the executive wing of the government or other public agencies or private entities do not violate the laws of the land. They also bear in mind the established hierarchy of the bodies of law where the constitution of the country sits at the top and the laws or rules which are found in contravention to the provisions in the constitution are declared void and unenforceable. They also hear and rule on complicated civil, commercial, criminal and social issues as well as rulings and judgments of lower courts on selective basis. Again, the courts, in general do not act on their own; but, consider issues and disputes when they are requested to determine and rule on them.
The beauty of democracy lies in the devolution or division of power and the wonderfully thought of mechanism places effective checks and balance on each organ of democracy. If the judiciary were to start donning the cap of the executive or start legislating laws or passing orders, we would see deep erosion in the value or importance of the democratic structure and institutions. The Indian democracy has outshone democracies in other neighbouring nations mainly because each of the three organs has played their role without stepping into the shoes of others.
In another case, Allahabad High Court was hearing a petition filed by a Muslim woman on divorce allegedly pronounced by her husband by uttering the word ‘Talaaq-Talaaq-Talaaq’. Although, the single judge bench dismissed the petition on the grounds that the larger issue revolving around the so-called concept of Triple Talaaq was being deliberated by the Supreme Court of the country; yet, the hon’ble Judge made several observations, which were nothing but censures and strictures on Muslim Personal Law and practices. Again, one could question the necessity of such pronouncements when the hon’ble judge had ruled that he would not deliberate or pass any judgment on the issue as the same was being heard by the country’s apex court. Not only the Hon’ble Judge asserted that the Triple Talaaq system was unconstitutional, but he also stated that the personal laws of the communities were not above the laws of the land including the constitution. He went to the extent of terming the provision of Triple Talaaq in the Muslim Personal Law as cruel and tyrannical. At the same time, he opined that the concept was against the teachings of noble Quran and the teachings of Prophet Muhammad (Sunnah).
At the substantive level, one could argue that as part of the fundamental rights, the Indian constitution grants to all religious groups the right not only to practice and propagate their religion but also manage their affairs in the matters of their religion. Yes, if there is any violation or contravention in the applicability of Sharia Law or its principles, the courts could rule such violations as null and void. However, they would have to first obtain an opinion of someone renowned or qualified in Sharia or Islamic law as well as consider the petition thoroughly and hear the views of the plaintiff and the defendant in full. Any decision or ruling passed without hearing the parties or without giving them proper chance to present their case or not following the required due process is not welcome in a democratic set up. While it was a good gesture on part of the hon’ble judge to hold holy Quran and Sunnah in the high esteem, yet, he lacks the required authority or knowledge to interpret and apply those provisions to any issue. It is another matter that the whole concept of ‘Triple Talaaq’ is a misnomer and misunderstood. The practice has no grounding in the Holy Quran or the teachings of the Prophet. The holy Quran prescribes for a period of three menstrual cycles or three months during which the couple could reunite without a new marriage contract.
Now, from a legal perspective, those strong strictures and assertions which were made by the hon’ble judge were unwarranted especially when he had decided to dismiss the petition. As the legislative or executive wing of the government is not permitted to interfere in a matter being heard by a court of law or render its opinion on it, the lower courts too are required to maintain silence on matters which are sub-judice before the higher courts.