The Desk

2021 Spring Session Review

The Supreme Court’s Spring Session saw many important developments on religion and the law, the conduct of elections and civil liberties.

The Supreme Court’s Spring Session began on 2 January and ended on 26 March. This session saw many important developments on religion and the law, the conduct of elections and questions on civil liberties. The Court also heard arguments on the farm laws, Maratha reservations and Rohingya deportation.

Law and Religion(s)  

The Court admitted multiple petitions that seek to reform laws that interact with religious freedoms.

Ashwini Kumar Upadhyay, a lawyer and BJP politician, has filed four separate petitions. In two public interest litigations, he sought a uniform divorce, maintenance and alimony laws. These are currently separate for different religions under ‘personal laws’. The petition argues that this violates the right to life and dignity. And the right to equality since it discriminates based on sex and religion. This could pave the path towards a Uniform Civil Code. CJI Bobde led bench has issued a notice in the matter.

Another petition challenges The National Commission for Minority Educational Institutions Act, 2004. This Act gives the Central Government the power to identify a community as a minority. The petition asks that this should be done on a state-wise basis by State Governments. The Court admitted the petition and has transferred similar matters from other High Courts to itself.

In the fourth petition, he challenges the Places of Worship Act, 1991. The Act prevents ‘conversion’ of a place of worship to one of another religion. It sets the time at which the character of a place of worship will be decided on 15 August 1947 (Independence Day). The petition challenges this on grounds of equality, religious and minority rights and personal laws.

Two NGOs, Citizens for Justice and Peace and People’s Union for Civil Liberties, and a group of citizens including Delhi Advocate Vishal Thakre have each filed petitions challenging two anti-conversion laws: the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 and the Uttarakhand Freedom of Religion Act, 2018. They argue that the laws curtail the freedom of choice and religion and the right to privacy, undermining secularism and fraternity. The case will test the scope of the right to marry. A three-judge bench led by CJI Bobde has issued a notice, denying an interim stay.

The Courts and Elections   

The Supreme Court has delivered important judgments on the conduct of municipal elections. It also pronounced an interim order on the issue of electoral bonds and admitted a petition seeking electoral reforms.

Various petitioners had challenged Gujarat’s practice of multi-member wards for elections to municipalities. They argued that the Constitution did not envision multi-member wards. And multi-member wards made it difficult for SCs/STS/OBCs and women to effectively represent their cause. The Supreme Court dismissed their petition.

A three-judge bench led by Justice Nariman criticised the actions of the Goa State Election Commissioner. The Commissioner cannot be employed by the State and must be independent, J. Nariman held. The notification on the reservation of seats below the mandated amount was also struck down.

On 24 March, the Court took up Association for Democratic Reforms’ interim application to stay the next issue of electoral bonds from April 2021. Prashant Bhushan, appearing for the petitioner, urged that the electoral bonds pose a high risk of enabling money laundering, risk of forgery, corruption, bribery and kickbacks. For the Union of India, Attorney General KK Venugopal argued that electoral bonds in fact help curb black money from being pumped into the elections. CJI Bobde’s bench refused a stay. They stated that an earlier interim order had decided the appropriate interim relief. There were sufficient safeguards and a stay was not necessary.

A petition by K Sathyan asks for reform of electoral laws. Provision of postal ballots to be extended to migrant labourers, students, NRIs and others must be read into the existing electoral laws framework, it posits. It also asks the Representation of the People Act, 1951 to be read in a manner that permits e-voting. And seeks to curb electoral malpractice through the introduction of technologies such as QR codes, OTPs, CCTV and facial recognition. The CJI Bobde led bench has issued notice.

Laws that Curb Civil Liberties   

Statue of Liberty Leading the People in the Dupleix Palace or the Institut De Chandernagore, West Bengal, India

In the three-judge bench judgment in KA Najeeb v. Union of India, the Court moved past its reluctance to grant bail under the strict ‘anti-terror’ law UAPA. It categorically held that if an accused has spent considerable time as an under-trial prisoner, he deserves bail. ‘Gross delay’ violates a prisoner’s fundamental right to a speedy trial. This becomes a ground for the grant of bail.

A group of lawyers, Aditya Ranjan, Varun Thakur and V Elanchezhiyan, had filed a public interest litigation challenging S. 124A of IPC, 1860. This section defines sedition and criminalises seditious activities. They argued it was being used to curb dissent and violate free speech. The CJI Bodbe led bench dismissed the plea for a lack of standing. He asked them to build a more concrete case and come back. In this post, we examine the historical challenges to sedition.

Other Petitions, Hearings and Interim Orders  

The petitioner in the ongoing Whatsapp-Facebook Privacy case filed an interim application challenging Whatsapp’s latest privacy policy. In a hearing on 15th February, the petitioner claimed that Whatsapp was offering lower privacy protections in India as compared to Europe. The three-judge bench led by CJI Bodbe issued notice and asked all the parties to file their replies.

On 12th January, the Court stayed three Acts of Parliament known as the ‘farm laws’, in a potentially novel interim relief measure. It appointed a 4-member committee to help negotiate between protesting farmers and the Government. The composition of this committee was soon challenged on the grounds of bias. On 20th January, the Court issued a notice on this matter. A petition was also filed by residents of Delhi NCR claiming the protests violate their fundamental rights. The Government’s separate request to stop the Republic Day protests, however, were withdrawn on the Court’s advice.

In 2018, the Maharashtra Government introduced the Socially and Educationally Backward Classes Act, 2018 (SEBC Act). It granted Marathas reservations in public employment and higher education. In the last 2 weeks of March, a five-judge bench heard arguments challenging the Act. The petitioners relied on two main arguments. The 50% limit on reservations laid down in Indra Sawhney. And their interpretation of the 102nd Amendment. In their view, States did not have the power to identify SEBCs. The State of Maharashtra questioned the 50% rule and disagreed with this interpretation of the 102nd Amendment.

Considering the important constitutional issues raised, all States and the Union submitted a response. Several other petitions which would be affected by this issue, as well as intervenors, were also heard. After 10 days of hearings, the Court has reserved its judgment.

To understand the background of the 50% rule, look at our desk posts here and here.

On 7 March 2021, news reports indicated that 150-170 Rohingya refugees had been detained in ‘holding centres’ in Jammu. There were fears that they would be deported. A refugee from Delhi had filed a petition in 2017 to protect Rohingya refugees from deportation. A request for interim relief was filed for the 170 detainees. The petitioners argued that the ‘principle of non-refoulement’ did not allow the deportation of refugees. This was a part of the Indian Constitution. The Union of India argued against this. They raised national security concerns and argued for executive discretion.

Other Important Judgments  

In 2018, the Supreme Court held that the Speaker’s certification of a bill as a ‘money bill’ could be reviewed by the Court. It affirmed that the Aadhar Act 2016 was correctly certified as it had the ‘elements’ of a money bill. In November 2019, the Supreme Court in Rojer Mathew v. South Indian Bank doubted the 2018 decision. The issue of when a bill can be a money bill was referred to a larger bench.

Seven petitioners filed review petitions, on the ground that the 2018 Aadhar judgment was erroneous. In January, a five-judge bench dismissed them at 4:1. The majority said that a ‘change in the law or subsequent decision/judgment of a coordinate or larger Bench’ was not a ground for review. Justice Chandrachud in his dissent argued the petitions should not be dismissed until the larger bench issued its judgment.

On 5th January, a 2:1 majority of the Supreme Court cleared the Central Vista redevelopment project. The petitioners had challenged the project on various grounds such as lapses in regulatory clearances and circumventing scrutiny in financial and environmental compliance. They also argued that the Government had failed to adequately consult the public.

The majority noted its limited jurisdiction over executive policy and dismissed the petition. Justice Khanna, in dissent, concluded that environmental and heritage clearance was not complied with. Look at our curated must-reads for more.

Justice Ravindra Bhat, writing for a division bench, addressed the ‘entrenched paternalistic and misogynistic attitudes’ in judgments around sexual violence cases. The Court analysed a series of judgments from several courts around sexual assault that illustrate archaic gender beliefs, gender stereotyping and insensitiveness. And laid down dos and don’ts for progressive adjudication and judgment writing on sexual assault cases.

Personnel Developments   

Justice Malhotra retired on 13 March 2021 bringing the strength of the Court to 29. Out of which only one remaining judge is female. To mark her retirement, we shed statistical light on her work at the Supreme Court. And also examine key judgments she authored and was a part of.

CJI Bodbe is set to retire next month, on 23 April. As per the judicial tradition, he recommended the next senior judge Justice Ramana as the successive Chief Justice of India.

After a week-long Holi break, the Court is scheduled to reopen on 5 April 2021. On the reopening day, the CJI Bobde led bench will hear the four-member committee on farm laws.