Courts in India are resorting to judicial overreach

New DelhiEdited By: Gravitas deskUpdated: May 19, 2021, 12:14 PM IST

In her January 12 order, Justice Mridula Bhatkar observed that 'the fault of the deceased was only that he belonged to another religion. I consider this factor in favour of the applicants/accused.' Photograph:(Others)

Story highlights

The judiciary's job is to protect the law of the land, ensure separation of power, checks and balances and make sure that the executive and the legislature do not overstep their limits

Courts in India have been feeding the world with sensational headlines and some of them sound straight out of Page 3.


An Indian court recently called the rising death toll due to oxygen shortage a genocide. Another court went on to suggest that the country's Election Commission be booked for murder.

On Monday, a lower court slammed a state government for carelessness. It could have done so in parliamentary language. Instead, it chose to say that the state's medical infrastructure is ram bharose, meaning at the mercy of God.

Right now they are being cheered mostly because they are seen echoing the sentiment of Indians suffering from vaccine shortage and a devastating second wave of the Wuhan virus. All is not well in India and that is true. There is anger, rising frustration, even resentment with the authorities.

But is it a court's job to play to the gallery? It should be left to the political parties. The judiciary's job is to protect the law of the land, ensure separation of power, checks and balances and make sure that the executive and the legislature do not overstep their limits.

However, it is something Indian courts are now being accused of - overstepping their limits.

On May 12, an Indian court decided to play moral police. It denied protection to a couple in a live-in relationship.

The court said: "If such protection is granted, the entire social fabric of the society would get disturbed."

It went on to say that live-in relations are morally and socially not acceptable.

Is it a court's job to decide what is morally or socially acceptable? No, it is not.

What a court is supposed to do is decide what is legally acceptable and legally speaking, Indians have the right to life. It is a fundamental right guaranteed by Article 21 of the Indian constitution and it's the job of the court to protect this right.

Under no circumstance can it refuse to do this job even if it goes against the morals of a judge. Criminality and morality are two different things. 

Indians have the right to privacy, our relationships are private matters. These are spaces that judges cannot enter.

While refusing to protect a live-in couple, the court said: "As a matter of fact, the petitioners in the garb of filing the present petition are seeking seal of approval on their live-in relationship which is morally and socially not acceptable."

Live-in relationships have been upheld by the Supreme Court of India as early as 2006. India's apex court had said that a woman is "free to marry anyone she likes or live with anyone she likes".

In India, the decision of the apex court is binding on all lower courts. 

The Supreme Court judgement in 2010 said: "The acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view."

It is the reason they say the law is blind and it's because the law is not supposed to be biased. Indian courts must move beyond lecturing people on morals.

They must move beyond normalising sexual offence by asking a victim to tie rakhi to the accused. 

Courts cannot question the genuineness of rape allegations just because the survivor chose to drink with the accused. Courts cannot grant divorces because a woman does not believe in traditional markers like sindoor because such judicial overreach is not welcome.