In an unusually candid courtroom reflection, chief justice of India (CJI) Surya Kant on Friday observed that the Supreme Court has, at times, passed 'sweeping orders' without fully appreciating ground realities, pointing to the 2014 Lalita Kumari judgment on mandatory registration of first information report (FIR) as an example of how well-intentioned rulings can be misused.
The remarks came during a hearing before a bench of CJI Kant and justice Joymalya Bagchi on petitions challenging provisions of the Bharatiya Nyaya Sanhita (BNS) and the Bharatiya Nagarik Suraksha Sanhita (BNSS).
While much of the hearing centred on whether Section 152 of the BNS effectively revives the offence of sedition, the bench’s sharpest observations are directed at arguments that Section 173 of the BNSS violates the Supreme Court’s ruling in Lalita Kumari vs Government of Uttar Pradesh.
Senior counsel Menaka Guruswamy, appearing for one of the petitioners, argued that Section 173 of the BNSS permits police to conduct a preliminary inquiry before registering an FIR in certain cases — a move she says runs contrary to the Lalita Kumari ruling, which mandates compulsory registration of an FIR if a complaint discloses a cognisable offence.
The CJI responded with a broader reflection on the consequences of that ruling.
“Do you know how (the) Lalita Kumari ruling is abused by filing frivolous cases for registration of FIRs? How judicial forums are abused?” he asked.
At one point, the chief justice remarked, “Sometimes judgments are given sitting in ivory towers. Have you seen what kind of litigation that judgment has generated? How much has that judgment been abused in this country?”
He added that without understanding societal conditions, particularly in rural areas, judicial directions can have unintended consequences.
“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,” he observed.
In a broader self-reflection on the court’s role, the CJI says, “In some cases, we pass sweeping orders as if sitting in ivory towers and without realising the social realities in the country… We pass sweeping orders in the name of protecting fundamental rights which in reality disturb the social fabric.”
When Ms Guruswamy contended that allowing police to assess the veracity of a complaint before FIR registration is dangerous, the bench pushed back.
“If police can’t determine the veracity of the complaint prior to converting it into an FIR, who else will?” the CJI asked.
Justice Bagchi pointed out that Lalita Kumari judgement itself permits preliminary inquiries in certain categories of cases, including matrimonial disputes and medical negligence. He says the new law appears to reflect that principle, though its classification could be examined during judicial review.
“The law cannot remain crystallised in Lalita Kumari (judgement),” justice Bagchi observed, indicating that legislative evolution is not necessarily inconsistent with earlier judicial doctrine.
The hearing also saw the bench clarify that Parliament is not bound by undertakings given by the Union government before the court.
Petitioners argued that in 2022, when the Supreme Court kept Section 124A (sedition) of the Indian Penal Code (IPC) in abeyance, the Union government had undertaken to review the provision. They contended that reintroducing a similar offence under Section 152 of the BNS violated that assurance.
The CJI rejected the argument. “The Union of India may have given an undertaking. But Parliament is not bound by it,” he says. “Parliament has the absolute prerogative to enact a law. Let the court examine whether it satisfies constitutional principles or not.”
He emphasised that while the legislature has the authority to enact laws, the court retains the power of judicial review and can strike down or read down provisions if they fail constitutional scrutiny.
The bench also remarked that courts should, in some instances, allow new legislation to operate for a few years before testing it purely on abstract principles.
The petitions, including one filed by Azad Singh Kataria, challenge the constitutional validity of Section 152 of the BNS, which criminalises acts endangering the sovereignty, unity and integrity of India, and is alleged to be a rebranded version of sedition.
The apex court posted the batch of matters for detailed hearing after the Holi vacation.
