The Year That Was - JUDICIARY PAVES THE WAY FOR A NEW INDIA

Source: Hindustan Times dated 31.12.2018

A slew of landmark orders that made history, an unprecedented press conference by four senior Supreme Court judges who questioned a Chief Justice’s style of functioning, and efforts to tackle the pendency of cases — 2018 was a remarkable year for the top court, which gave the country some of its biggest headlines

Progressive and historic: Verdicts break barriers

The year 2018 has been a watershed year for the Supreme Court in terms of interpreting jurisprudence. A series of progressive verdicts delivered by the apex court took India’s legal framework out of the confines of Victorian morality.

Through its path-breaking judgments, four of which were delivered in the span of a month, the court reasserted itself as a protector of individual rights, liberty, privacy and gender equality. The court ensured that reason triumphed over prejudice in the quest for social progress. In some cases, it corrected the wrongs it committed in the past.

Providing justice to the underprivileged and the deprived remained a top priority. Directions were issued on matters related to rape survivors, jail reforms, rehabilitation of widows in Vrindavan and curtailing online circulation of sexual violence and child porn. A mechanism was evolved to address these issues, and the court succeeded in nudging the Centre to deliberate and come up with realistic action plans. The court refrained from indulging in policymaking but, on a regular basis, monitored the implementation of the plans.

Rape survivors, too, have a right to live with dignity, the court asserted as it directed the media not to reveal their identities “even in a remote manner.” The dead cannot be denied dignity, it said, while asking print and electronic media not to show faces of victims of rape and sexual assault who succumb to injuries. After the top court’s constant monitoring, the Centre and big technology companies, including Google, Microsoft and Facebook, stepped up their efforts to stamp out child pornography online.

The top court remained firm on its decades-old ruling that right to live included right to clean environment and issued numerous orders to keep a check on growing pollution.

It banned the sale of BS-IV cars with effect from April 1, 2020, and ordered that only BS-VI cars be sold in the market thereafter. For the conservation of world heritage site Taj Mahal, it directed Uttar Pradesh to prepare a vision document.

Specifically for Delhi-NCR, the court asked the Central Pollution Control Board to get tech-savvy and accept complaints from citizens on social media. It said Diwali celebrants nationwide will get two hours between 8pm and 10pm to burst firecrackers during the festival in November and made the sale of only “green and improved” fireworks mandatory in NCR.

And then there were the landmark orders.

In March, it reversed a Kerala high court order that annulled an interfaith marriage it felt was a sham. “Marriage and personal relations are the core of plurality of India. We must do everything to protect it,” the top court said, ruling that consenting adults have the right to choose whom they wed.

In September, it ruled that gay sex between consenting adults is not an offence, reading down the British-era Section 377 of the penal code. “Any discrimination on the basis of sexual orientation violates fundamental rights,” said then CJI Dipak Misra.

In a September judgment that balanced the needs of the marginalised and the privacy of individuals, the top court upheld the constitutional validity of the Aadhaar project, but with riders.

And again in September, an archaic patriarchal legislation that treated women as the “chattel of husbands” was cast aside by the court when it scrapped the adultery law. In practice for 158 years, the law dented a woman’s individuality, denied her the right to equality and promoted ownership of one gender over the other, the top court ruled. Adultery, however, remains grounds for divorce.

That women’s rights are strongly embedded in the Constitution was the principle that guided the top court to open the doors of the Sabarimala temple in Kerala to women of all age groups in September, and in November the court agreed to reconsider the judgment while refusing to stay the operation of the verdict.

Crisis of confidence and an unprecedented event

When four senior Supreme Court judges aired their grievances before the media early this year, they brought to the fore differences simmering in India’s top judiciary and set off intense scrutiny of the top court’s credibility. In that unprecedented January event, Justice J Chelameswar, Justice Ranjan Gogoi (now the Chief Justice of India), Justice Kurian Joseph and Justice Madan B Lokur objected to the manner in which important cases were being allocated, and called for collective leadership.

The Supreme Court collegium — all the four judges and the then CJI, Dipak Misra, were part of it —takes collective decision on the matters of appointment, but the Chief Justice of India is considered the ‘first among the equals’. In the words of Justice Chelameswar (now retired), that press conference was an “extraordinary event in the history of the nation, more particularly this nation”.

He said the administration of the Supreme Court was not in order and many things which were less than desirable had happened, though the judges refrained from making public all the details of what they thought to have gone wrong.

The judges said they were forced to speak in public, breaking the settled principle of judicial restraint, because the CJI did not take steps to redress their grievances. Speaking to HT back then, people close to the CJI refuted the allegations and stressed that judges in the top court were equal and that work was allocated fairly. The event opened the court to external scrutiny, and challenged the sanctity of the judiciary in a manner the country had never seen before.

After the differences came out in the open, lawyers, politicians and analysts took sides, with some insisting that the judges should not have gone public and others countering that they had no option.

“The press conference should not be seen as a revolt or a challenge to authority. It must be seen as a desperate cry to set right a revered institution,” Supreme Court lawyer Sanjay Hegde wrote in HT. The press meet did have some impact. Some changes were ushered in by CJI Misra, and the roster, or the way work is allocated, was made public.

Then in April, seven opposition parties led by the Congress moved a notice for the impeachment of Misra, accusing him of “misbehaviour” and “misuse” of authority in the administration of the court. Rajya Sabha chairman M Venkaiah Naidu rejected the notice. It was for the first time in the history of independent India that an attempt to remove a sitting Chief Justice was even initiated. The ruling Bharatiya Janata Party accused the Opposition of politicising the court.

The other side of the debate

Alongside the landmark orders, dissenting judgments authored by justices who did not concur with the majority views, became a talking point this year, showcasing the vibrant nature of India’s democracy where the ‘other’ viewpoint ignites debate and gives the nation food for thought on important issues. For example, Justice DY Chandrachud said in his dissenting order that the Aadhaar law was unconstitutional as it infringed upon the privacy of individuals. He stressed that the passage of the “Aadhaar Act as a Money Bill is an abuse of the constitutional process”. Justice Chandrachud added that dignity and the rights of individuals cannot be made to depend on algorithms or probabilities, and that constitutional guarantees cannot be subject to the vicissitudes of technology. “Allowing private entities to use Aadhaar numbers, under Section 57, will lead to commercial exploitation of the personal data of individuals without consent and could also lead to individual profiling,” he wrote. Justice Indu Malhotra, the sole woman judge on the Constitution Bench that opened the doors of the Sabarimala temple to women of all ages, cautioned against judicial review of religious faith and practice, especially in the absence of an aggrieved person from that particular religious sect. The prohibition for admitting women between the ages of 10 and 50 at the hill shrine, she held, was an essential practice for the devotees of Lord Ayappa, the presiding deity of the temple. She felt that they formed a separate religious denomination and was thus protected under the Constitution.

CLEAN CHIT TO RAFALE DEAL

On December 14, the court rejected a bunch of petitions that demanded a court-monitored probe of the Rafale deal, saying it saw no reason to doubt the process followed in the ₹59,000-crore purchase in which the Congress has been alleging wrongdoing. The court refused to go into pricing, and said it saw no evidence of commercial favouritism, was satisfied that due process had been followed, and the need for procuring the aircraft was not in doubt. The order had some errors; the most significant being a mention that the pricing details had been shared with CAG, that the auditor had submitted a report to the Public Accounts Committee, and that redacted portions of the report were available in the public domain. The government filed an application for a correction even as the Opposition claimed the Centre misled the court. The application for correction is yet to be taken up.

NATIONAL ANTHEM ORDER

On January 9, the Supreme Court said cinema halls across India no longer needed to play the national anthem before film screenings, reversing an order passed over a year ago. The ruling came after the Centre asked for “status quo ante”– or a return to the situation before the court had passed its November 2016 order. Before the 2016 ruling, some state governments — including that of Maharashtra — made it mandatory for the national anthem to be played in theatres. Legal experts said any such executive order by states would still stand. If a theatre does play the anthem, moviegoers will have to stand to show respect, the court specified, but said that differently abled people would be exempt.

SC/ST ACT RULING

On March 20, the Supreme Court banned automatic arrest and registration of criminal cases under the Scheduled Castes (SC) and the Scheduled Tribes (ST) Prevention of Atrocities Act, 1989. It ruled that no arrest can be made under the act without prior permission, and added that a court can grant anticipatory bail if it, prima facie, finds the complaint is in abuse of the law, false, motivated and intended to blackmail or to harass a person. The judgment triggered widespread protests that it diluted the law meant to protect marginalised communities. The Union cabinet later approved a bill to restore key provisions of the act.

A tourist destination

In October, the Supreme Court launched a portal, through which citizens can book a one-hour guided tour. Entry to the 60-yearold building, which is in a high-security zone, was restricted earlier, and regulated either through an electronic access card or daily passes. The court’s registry has developed a site that will help citizens choose the date and time for a 60-minute visit.

AADHAAR PASSES THE TEST

On September 26, a majority judgment of a Constitution Bench of the Supreme Court upheld the constitutional validity of Aadhaar, but restricted its use to government welfare schemes funded by the Consolidated Fund of India. The judgment, however, scrapped, wrote down, or amended key clauses in the UIDAI Act to protect the rights of individuals and prevent misuse of their Aadhaar details, giving the petitioners a partial victory. Bank accounts and mobile phone numbers no longer need to be linked to Aadhaar, and transaction details will only be kept for six months, against five years the law originally mandated. The court also said children cannot be denied school admission for want for Aadhaar, though the number would be required for filing income-tax returns, making it necessary to link it with the PAN.

A WATERSHED MOMENT

Justices Kurian Joseph, J Chelameswar, Ranjan Gogoi (now the CJI) and Madan Lokur (not in pic) question the top court’s functioning in a January press meet in New Delhi.

SABARIMALA DOORS OPEN

On September 28, the court ended a centuries-old ban on the entry of women of child-bearing age into Kerala’s Sabarimala temple, saying exclusion on the basis of biological and physiological features was unconstitutional and discriminatory as it denies women the right to be treated as equals. The order sparked protests in Kerala, where traditionalists clashed with police and forced women to abandon their pilgrimage. Protesters believe women of reproductive age should not visit the 800-year-old shrine as its presiding deity, Lord Ayyappa, is celibate. The top court is hearing review petitions in the case.

PASSIVE EUTHANASIA NOD

On March 9, the court ruled that a person has the right to decide against being put on artificial life support by creating a living will. The court held that the right to life and liberty, enshrined in Article 21 of the Constitution, includes the right to die peacefully and with dignity. It upheld a person’s right to choose passive euthanasia by creating an Advance Medical Directive — commonly referred to as a living will — as to how s/he should be treated in the eventuality of a terminal illness. Active euthanasia continues to be illegal in India. A national debate was sparked by a favourable 2011 SC judgment in the case of 66-year-old Mumbai nurse Aruna Shanbaug, who was in a vegetative state for more than 40 years after being sexually assaulted.

ADULTERY LAW SCRAPPED

On September 27, the Supreme Court struck down adultery as a criminal offence, ruling that the 19th century law that treats “a husband as the master” was unconstitutional, though the offence was a “ground for divorce.” Quashing the archaic law, which has been on the statute book for more than 150 years, the court said in a unanimous verdict, “...if it (adultery) is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better be left as a ground for divorce.” Section 497 of the Indian Penal Code made adultery an offence if a married man has sex with the wife of another married man without his ‘connivance’ or ‘consent’. But only men, and not women, could be prosecuted.

HADIYA MARRIAGE VALID

On March 8, the Supreme Court upheld the validity of the marriage of Hadiya, a 26-year-old Kerala Hindu woman who converted to Islam and wed a Muslim man, overturning a high court order that annulled their marital union as a sham. The order upheld a woman’s right to choose her partner. It said the HC “should not have annulled the marriage” of Hadiya and Shafin Jahan. The HC not only invalidated Hadiya’s marriage but also handed her custody to her parents until the top court stepped in. The case put the spotlight on “love jihad”, a controversial term coined by fringe Hindu groups to describe what they claim is a conspiracy by Muslim men to lure Hindu women into marriage.

JUDGE LOYA DEATH

On April 19, the apex court dismissed pleas seeking an independent probe into the death of special CBI court judge BH Loya, ruling that he died of natural causes and slamming the petitions as an attempt to scandalise the judiciary and obstruct justice. The verdict triggered a political slugfest between the ruling and opposition parties. Judge Loya, who was hearing the Sohrabuddin Sheikh encounter case, died of a cardiac arrest on December 1, 2014, in Nagpur, where he had gone to attend a wedding. BJP chief Amit Shah was one of those named in the Sohrabuddin case, and discharged.