DOCTRINE OF COLOURABLE JUDICIAL LEGISLATION
Issue relating to mandatorily play of the National Anthem in the Cinema Hall before screening of the movie and obligation of all present in the hall to stand up to show respect to the National Anthem pursuant to the direction of the Hon'ble Supreme Court has been put before me by one learned friend in order to express my views,which(issue) is reproduced below-
"Might ethics be the complement of laws in order to control the society, because many decisions were taken by supreme court which encroach the extent of ethics.
For example to play national anthem in cinema hall."
For example to play national anthem in cinema hall."
My Views:-
This direction of the Supreme Court is very controversial.
The Supreme Court had evolved the Doctrine of Colourable Legislation,which declares "What you can not do directly,also you can not do indirectly."This Doctrine was evolved to hold such laws made by Legislatures(Parliament/State Legislatures) unconstitutional for which legislatures are not competent directly,but make such laws indirectly in the external form of other laws.
I would like to use Doctrine of Colourable Judicial Legislation in reference of laws declared by the Supreme Court,but in different sense.Now it's becoming trend that What Parliament can not make law directly,however being competent to do so, due to apprehension of effect on votes of ruling party,the Ruling Govt wants to be made by the Supreme Court.
Parliament is competent to make law to decrimilize homesexuality of adult persons by amending section 377 IPC but the Govt sought decrimilization of homesexuality of adult persons by the Supreme Court only.
Parliament is competent to make law to abolish triple talaq by regulating the Muslim Personal Law but the Govt is seeking abolition by the Supreme Court only.
Parliament is competent to make law to determine the occasions where the National Anthem be mandatorily played/sung but the Govt supported the determination in the Supreme Court only.
If the Parliament makes such laws,as referred above,it will cause reduction in votes to the ruling party to a great extent by the unhappy segments of the society and increase in votes to the ruling party by the happy segments of the society but if the Govt seeks/supports declaration of such laws by the Supreme Court and the Court declares,then it will increase votes to the ruling party by the happy segments of the society,but will not reduce(or will reduce to a very little extent) votes to the ruling party by the unhappy segments.
What i would like to say by using Doctrine of Colourable Judicial Legislation is that What the Parliament can not do directly due to political reasons,the Supreme Court must not do that,subject to protection of fundamental rights,only for which the Supreme Court has writ jurisdiction under Article 32 of the Constitution.
Triple Talaq and Homosexuality involve substantial questions of law as to interpretation of the Constitution in reference to fundamental rights of individuals, therefore the Supreme Court must decide in this regard.Respecting the National Anthem is a fundamental duty under Article 51A(a) of the Constitution,for which the Supreme Court has no writ jurisdiction under Article 32 of the Constitution but the Supreme Court has directed to play the National Anthem in the cinema hall while exercising writ jurisdiction in Writ Petition(Civil) No.855 of 2016 in the matter of Shyam Narayan Chouksey vs Union of India.
What laws are made by the Legislatures generally do not expressly provide as to reasons and purposes for doing so and how purposes will be served,but are implied with laws.What laws are declared by the Supreme Court always expressly provide reasons and purposes for declaring such laws and how purposes will be served because reasoned decision is the integral part of the principle of Natural Justice.But the Supreme Court while directing to play the National Anthem in the cinema hall has not provided as to how purposes will be served besides citing to respect the National Anthem,as it is a fundamental duty.
Reasons and purposes for which law is made is actually ethics behind the law.Therefore,ethics guide laws and laws change according to changes in ethics.
Law is made to fulfill some ethics.In what manner,we can fulfill ethics varies from person to person.But there must be some standard manner of fulfilling ethics.Obligation to play the National Anthem before screening of the movie and stand is obviously not a standard manner of fulfilling ethics because imposition of obligation by the law,that too only in the cimena hall and in future may be in all schools, can not create a sense of respect.Respect is created by motivations and activities and binding obligation only at few places can not create respect.
So far as fulfilling the ethics of respect to any thing is concerned,it can only be provided by the law to respect,law can not provide the manner of respect.There must be some standard manner of fulfilling the ethics of respect framed by the Govt based on motivations and activities,not on imposition of obligation.
I am of the view that ethics is the complement of law,but the direction of the Supreme Court regarding manner of ethics of respect to the National Anthem is not standard and only the Colourable Judicial Legislation, as discussed above.
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