Perennial fallacies

It is a perennial fallacy to perceive the Supreme Court’s judgments or orders as a conflict between a few judges and the majority of people. It is not a question of numbers at all. Suppose, by an overwhelming majority, a law is passed which outlaws strikes and demonstrations by government employees, or which sanctions gender discrimination. Are courts bound to uphold such laws, which violate the workers’ fundamental rights and the rights of women, on the grounds that the will of the people must prevail? Such a stance makes a mockery of judicial review by an independent judiciary, which is a basic feature of our Constitution and which has been a bulwark of the fundamental rights of our people.

Consensus between political parties and the wishes of the majority is certainly a relevant factor in constitutional adjudication but it is not decisive. Ultimately, it is the mandate of the Constitution that must be respected. It is the duty of the judiciary, laid upon it by the Constitution, to strike down unconstitutional laws.

Judicial puritanism

Our Supreme Court has ruled that vulgarity is not synonymous with obscenity. It held that the Bengali novel Prajapati was not obscene merely because in the book there was an emphasis on sex and description of female bodies.

A magistrate in Jaipur has issued a warrant for the arrest of Richard Gere and has also summoned Shilpa Shetty to court for committing allegedly obscene acts by hugging and kissing on a public platform. The order of the magistrate is incomprehensible and is legally unsustainable. The behaviour of Richard Gere and Shilpa Shetty on a public platform may be regarded as vulgar and in bad taste. However, issuance of a warrant of arrest against Richard Gere without even granting him a hearing and summoning Shilpa Shetty betrays judicial ignorance of the law laid down by the Supreme Court. It also smacks of extremism overborne by puritanical zeal. Similar complaints have been filed in other courts. This virus of judicial puritanism must be nipped in the bud. The judiciary should not act like the Taliban moral police and pass orders that make us look ridiculous in the eyes of the nation and of the civilised world.

Noise pollution

Romantic lovers and honeymooning couples do get carried away and robustly express the warmth of their passion without any inhibitions. This happened recently when the singer Jessica Simpson, during a romp with John Mayer in a hotel room in Rome, gave vent to loud squeals of delight. The occupant of the adjoining room complained that her peace and quiet was disturbed. This case is a vivid illustration of conflict between two human rights: Freedom of expression and the right to quiet and tranquility. An important issue of noise pollution and environmental law is also involved.

What is the solution? Prescribing appropriate decibel levels for torrid expressions of affection? Or would self-censorship by the couple be the answer? Or would it suffice to give prior notice to occupants of adjoining rooms and provide them with ear-plugs? Another solution could be playing rock music with loud volume to drown the screams and colourful censorable language of the couple? There are no easy answers to these knotty problems. A PIL is the need of the hour.