Will the question of 'Constitutional morality' help tackle the issue of 'Bench Hunting' or 'Forum Shopping'?

December 10, 2018

 

Recently, speaking at the Second J Danachanji Memorial Debate, Attorney General K K Venugopal made two very interesting points, wherein in first he disapproved of the judiciary relying on the concept of Constitutional morality in the judgments like in the Sabarimala case and then he expressed his concern that 2 different voices in Supreme Court are dangerous.

 

He specifically made reference to SC judgment passed in Sabarimala case and precisely stated that "In the Sabarimala case, the dissenting judge, Justice Indu Malhotra, relied upon constitutional morality and said that constitutional morality will require that every single individual would have the right to his own faith and nobody can interfere with it, the courts cannot interfere with what is the matter of faith…".

 

Referring to the majority judgment by four judges in the Sabarimala case, he said they had elaborately stressed on constitutional morality and said that constitutional morality was "equality and equality before the law means you cannot discriminate against a class of women".

 

Surprisingly, he then went on to say that "if a bench of the Supreme Court speaks in two different voices, one says permit and other says no, then this is dangerous…".

 

Though I don't have much of experience; but still, since the Attorney General has raised a very important issue, it reminds me a judgment dated 18/12/2014, passed by SC in case titled ‘Jagmohan Bahl & Anr vs State (NCT of Delhi) & Anr’, wherein the SC itself was pleased to condemn the practice of “bench hunting” or “forum shopping” for initiating proceedings in the courts.

 

Why doesn't SC establish rule of law within?

 

Why doesn't it ensure that judicial discretion is exercised genuinely?

 

Why it doesn't check that how come, in the same matter, opinions of different benches differ when we not only have the coded law but also we believe in the supremacy of the constitution and not the Supreme Court.

 

Due to this lack of accountability and transparency, a large majority of litigants are deprived of justice!

 

At the time when Supreme Court invited public opinion on #collegium, it used a phrase 'this is passed by parliament, representatives of people', what all definitions did that phrase include? When it comes to analyzing gender biased laws it says it can't be quashed as it's passed by parliament, but when it comes to NJAC why is parliament overlooked? On this very favoritism/biasedness I can pinpoint several other instances! But what that be of any use?

 

What does the phrase 'we cannot open the dangerous doors of democracy' mean? Do SC judges try to keep whole of the country as a hostage when it says 'sky is the limit of our powers'?

 

Why in our so-called courts of law we have to go through bench hunting? Why in our country we do not have confidence that no matter whoever the judge is, justice will be delivered? Why do we still have to wait for a better bench?

 

Will the question of 'Constitutional morality' alone help tackle the issue of 'Bench Hunting' or 'Forum Shopping'?

 

 

 

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