LAW & SOCIETY SEPTEMBER 22, 2018 vol lIiI no 38 EPW Economic & Political Weekly 10 When Supreme Court Judgments Are ‘Set Aside’ Alok Prasanna Kumar I n the last five weeks, three contro- versial judgments of the Supreme Court have been “set aside” by a combination of legislative action and subsequent judgments. In August, the judgment in Subhash Kashinath Mahajan v State of Maharashtra (2018), which had issued certain problematic directions (Kumar 2018) in the context of the Sche- duled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ( PoA Act) was overturned by Parliament amending the legislation to explicitly state that the directions in the judgment will have no effect. Earlier this month, the constitution bench of the Supreme Court in Navtej Singh Johar v Union of India (2018) read down Section 377 of the Indian Penal Code (IPC), 1860 to decriminalise consensual homosexual acts between adults, holding Suresh Kumar Koushal v Naz Foundation (2014), which had “re-criminalised” homosexu- ality, to have been decided wrongly. After that, the Supreme Court in Social Action Forum for Manav Adhikar v Union of India (2018) modified the directions issued in Rajesh Sharma v State of Uttar Pradesh (2017) concerning the investiga- tion of offences under Section 498-A, effectively cancelling the most wide- ranging ones. I have used “set aside” in quotes in the previous paragraph as the term, legally understood, applies only to those judg- ments that have been appealed against in an appellate court and held incorrect. The Supreme Court being the final court of appeal in India, the term seems inapp- ropriate. Yet, the effects of three judg- ments have been rendered null and void by Parliament and the Supreme Court itself. To be fair, there is nothing unusual about Supreme Court judgments being rendered null and void by subsequent actions. It is well-recognised, legally, that Parliament always has the power to change the law or remedy a legal defect that was the basis for a Supreme Court judgment. Likewise, the Supreme Court has, on many occasions, held prior judg- ments to have been incorrectly decided on the law. Most recently, it has declared long-standing judgments as no longer being good law in Jindal Stainless Ltd v State of Haryana (2017) and K S Puttas- wamy v Union of India (2017), respectively. However, I would argue that the judg- ments in the Navtej Singh Johar and Social Action Forum for Manav Adhikar ( SAFMA) cases are qualitatively different from those in the Jindal Stainless Ltd and K S Puttaswamy cases. First, it was a relatively short period of time within which the judgments were overturned in the Johar and SAFMA cases: five years and one year, respectively (while the judgments in the Jindal and Puttas- wamy cases were concerned with cases that were at least 50 years old). These were not rethinks prompted by a vastly changed jurisprudence or socio-economic circumstance, but a mea culpa, that judgments of the likes of the Suresh Kumar Koushal and Rajesh Sharma cases should never have been delivered. Second, the rethink suggests a level of acknow- ledgement about an institutional, as opposed to a jurisprudential, failing on the part of the courts. This is true not only for the Johar and SAFMA cases, but also for Parliament in overturning the judgment in the Subhash Kashinath Mahajan case. How Judgments Were ‘Set Aside’ Of the three, the first to go was the judg- ment in the Mahajan case. Protests had broken out across the country, spear- headed by Dalit communities which saw this judgment as a direct assault on the struggles of Dalits to lead lives of dignity (Mittal 2018). The PoA Amendment Bill, 2018 nullifies the directions in the judgment, which mandated a prelimi- nary enquiry by the police before regis- tering a first information report under the PoA Act and the seeking of higher authorities’ approval before any arrests were made under the act. The amendment also removes the possibility of anticipa- tory bail for offences under the act. In the Johar case, a five-judge consti- tution bench confirmed what had been stated earlier in the Puttaswamy case, that the judgment in the Koushal case was completely wrong in its understand- ing of the law and the Constitution inso- far as it re-criminalised homosexuality under Section 377 of the IPC. Curiously, the Supreme Court did not list the pend- ing curative petitions that had questio- ned the correctness of the conclusions in the judgment in the Koushal case after the review petition had been dismissed. Lastly, in the SAFMA case, in a petition seeking to modify some of the directions in the judgment in the Sharma case, the Supreme Court went ahead and recalled one direction entirely (relating to the creation of committees) and diluted the others. The Court noted that while some of the directions really flow from previ- ous judgments and parts of the Code of Criminal Procedure, 1973 itself, the direction to set up committees that will decide whether the police must investigate a case relating to Section 498-A are held to be beyond the Court’s powers. Wrongness of Three Judgments More than just being wrong in law, what stands out in the Koushal, Sharma, and Mahajan cases is the institutional fail- ures that they represent. On one level, how they did what they did was prob- lematic. In the Koushal case, a two-judge bench of the Supreme Court ended up deciding some of the most important questions of interpretation of the Consti- tution without reference to a five-judge constitution bench, as mandated under Article 145(3) of the Constitution itself. The reference to a constitution bench is not just because five is better than two,