New Delhi: In an unusually reflective remark, a bench led by Chief Justice Surya Kant on Friday said the Supreme Court has repeatedly passed sweeping orders ignoring the social realities of India and failing to understand its adverse impact on the social fabric.When a spate of petitions challenging the validity of the sedition provisions in the BNS and the provision in the BNSS allowing the police to conduct preliminary investigation before registering an FIR came up for hearing, senior advocate Menaka Guruswamy said allowing the police to conduct preliminary investigation before registering an FIR was a violation of the SC’s ruling in the 2014 Lalita Kumari judgment.
The Supreme Court in its 2014 judgment had held that if the complaint discloses a cognizable offence, then the police must immediately register an FIR, but preliminary investigation can be conducted in complaints involving matrimonial disputes, medical negligence and some other categories of cases.If police cannot verify complaint before FIR, who else can verify it: SCCJI Kant said that to test the validity of any new legal provision, one has to wait for a few years to observe its functioning and look for loopholes; the same may be challenged. “Do you know how the Lalita Kumari verdict is being misused by filing frivolous cases where FIRs are registered? How the judicial forum is being misused,” he asked.The CJI said, “In some cases, we are passing sweeping orders as if sitting in an ivory tower without realizing the social reality of the country. Friendly complaints filed on a whim in rural areas, if converted into FIRs, have the potential to create deep animosity in the society.”“We have passed sweeping orders in the name of protecting fundamental rights but in reality they are disrupting the fabric of society,” Justice Kant said. Guruswamy said how the police had the power to ascertain the veracity of the complaint while registering an FIR and argued that the police could do so after registering an FIR.“If the police cannot ascertain the veracity of the complaint before converting it into an FIR, then who can?” Justice Bachi said, “The Lalita Kumar judgment empowers the police to conduct preliminary investigation in several categories of cases, including matrimonial disputes. The legislature has reflected this aspect in the law with regard to the extent of punishment prescribed for the offence. Such a provision cannot be inconsistent with the Lalita Kumar judgment.”“Guruswamy argued that the sedition clause was included in the BNS despite the Union government’s promise to the SC not to do so. “The Union government can make such an undertaking. But Parliament is not bound by it. Parliament has the exclusive power to make legislation. The SC can interpret and interpret it while testing its validity,” the SC said. It had issued a petition for a detailed hearing in the second week of March.
