The controversy over jokes on Sikhs is coming to an abrupt end after the Supreme Court declined to interfere in the matter as it may amount to moral policing. During the initial hearing, the Court had itself said that one should learn from Kushwant Singh, who despite being a Sardar himself, popularised Santa Banta jokes to the world. While proponents of free speech rejoice, it is important to look into the misuse of PILs, the nature of individual justice, limitations of the Supreme Court, the requirement of uniform judicial process as well as questions raised by the system of senior advocates.
Institutional v. Individual Justice- Last year in May 2016, a PIL on embezzlement of gold and valuables in the North-East by the military was considered to be of vital importance by the then CJI TS Thakur. However, when the matter came up before present CJI Khehar, it was dismissed as being trivial. Sikh jokes PIL was also entertained by the then CJI TS Thakur, got 11 hearings and went on for more than 2 years, even as no notice was issued in the matter. Apex Court has now shifted responsibility on the issue of community based jokes to Parliament, one wonders if the nature of decision changes drastically with the change in judges. NGO Daksh has estimated the annual loss to India’s GDP being 0.48 %, i.e. Rs 50,387 crore due to judicial delays, which incidentally is about 29 times the Annual Budget for the Indian Judiciary!
Limitations of Supreme Court- With community based jokes all across the internet, it is nearly impossible for Courts to regulate jokes and content on social media. It has not been able to regulate the presence of gender identification advertisements on search engines, even after introducing the doctrine of auto-block in its orders. Apex Court has itself admitted that it cannot bring Ram Rajya into the country and even a plethora of guidelines on any number of subjects will fail make any change as it is implementation that is always lacking in such cases. Having bolstered free speech by declaring S. 66A of IT Act, 2000 unconstitutional, the Supreme Court must realize that controlling free speech over the complex web of interest is a daunting idea that co-relates with a police state.
Uniformity in Justice Dispensation- India has about 3.4 crores cases pending, with the manner of each being dealt differing across jurisdictions. Just 14 High Courts have PIL Rules, which also differ from each other. MP High Court has asked Bar Council to stop lawyers from releasing copies of PILs to media, before they are filed in Court. In a step further, Apex Court is willing to examine the issue of media-trial, even as it is unable to implement its prior orders. Moreover, petitions are filed even before making a representation before the concerned authority and yet the Courts routinely take up such matters.
Influence of Senior Advocates- Research by ‘Vidhi’ shows that the litigants’ chances of winning double when a Senior Advocate appears on their behalf before the Supreme Court. With their sky-high fees, Seniors are a foregone conclusion for the common man and hence putting their chances of winnability in serious doubt. Justice BS Chauhan in 2014 had wondered if the Supreme Court will hear only the cases of the rich. The level of indulgence that the Seniors enjoy from the Bench has ensured their involvement even in PILs, with the chances of one being admitted also being dependent upon the Senior appearing.
Misuse of PILs- The Sikh Jokes PIL sought guidelines, even as there are enough laws in IPC and IT Act to deal such matters which may amount to hate speech. The movie Santa Banta Private Ltd. had to face numerous troubles even after it was cleared by the Censor Board in October 2015. Abuse of PILs has become a norm and the Supreme Court has also questioned whether the Court has become a political arena or a place for garnering publicity.
The highest Court of the land was made to deal with matters relating to interpretation of Constitution, but has been reduced to an Appeals Court. Taking forward the mechanism of compulsory deposition of sums by companies before it adjudicates a corporate dispute; the Court must now seriously overhaul the justice system and impose exemplary costs on unscrupulous litigants, or otherwise the melee is here to stay.
Advocate Virag Gupta is in the Supreme Court, having several books to his name.
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