Kamal Ghorui
NEW DELHI: In an unusual introspective remark, Chief Justice Surya Kant-led bench of the Supreme Court on Friday said on several occasions the apex court passes sweeping orders unmindful of India’s social ground realities and without understanding their adverse impact on the social fabric.When a bunch of petitions challenging the validity of the sedition provision in BNS and a provision in BNSS allowing police to conduct preliminary inquiry prior to registration of FIR came up for hearing, senior advocate Menaka Guruswamy said permitting police to conduct preliminary inquiry prior to registration of FIR was in violation of SC ruling in the 2014 Lalita Kumari judgment.
The SC in the 2014 judgment had ruled that if a complaint disclosed a cognizable offence, then the police must immediately register an FIR but can conduct preliminary inquiry into such complaints relating to matrimonial disputes, medical negligence and some other categories of cases.If police can’t verify complaint before FIR, who else will: SCCJI Kant said, to test the validity of provisions of any new law, one must wait for a few years to observe its working and on finding lacunae; the same could be challenged. “Do you know how Lalita Kumari ruling is abused by filing frivolous cases for registration of FIRs? How judicial forums are abused,” he asked.The CJI said, “In some cases, we pass sweeping orders as if sitting in ivory towers and without realising the social realities in the country. Frivolous complaints lodged in the heat of the moment in rural areas, when converted to FIRs, have the potential of causing deep animosity in society.”Justice Kant said, “We pass sweeping orders in the name of protecting fundamental rights which in reality disturb the social fabric.” Guruswamy said how can the police have the power to determine the veracity of a complaint at the time of registration of FIR to argue that police can do so after registering the FIR.The bench said, “If police can’t determine the veracity of the complaint prior to converting it into an FIR, who else will?” Justice Bagchi said, “Lalita Kumar judgment gives the power of preliminary inquiry power to police in several categories of cases, including matrimonial disputes. Legislature has reflected this aspect in the law with respect to the degree of punishment provided for the offences. Such a provision cannot be at the teeth of Lalita Kumari judgment.”Guruswamy argued that the sedition provision was incorporated in BNS despite Union govt undertaking before the SC not to do it. SC said, “Union govt can give such an undertaking. But Parliament is not bound by it. Parliament has the exclusive power to enact legislation. While testing its validity, SC can interpret and read it down.” It posted the petitions for a detailed hearing in March second week.
