When Supreme Court Judgments Are ‘Set Aside’

In the last five weeks, three controversial 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 Scheduled 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” homosexuality, 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 investigation 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 judgments 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 inappropriate. Yet, the effects of three judgments have been rendered null and void by Parliament and the Supreme Court itself.