Monthly Review: April 2018
April saw the appointment of Justice Indu Malhotra, an impeachment motion against the CJI, and consequential developments in important cases
Justice Indu Malhotra appointed as Supreme Court Judge – Ms. Indu Mahotra has been appointed as the Supreme Court Judge after Centre cleared the Collegium’s recommendation. She has been elevated from the bar. However, the turf war between Centre and the Supreme Court continued as Centre sent back Justice K.M. Joseph’s name for reconsideration. The Centre has cited reasons of – seniority, lack of diversity, non-representation of SC/ST judges on the bench as reasons for stalling his appointment.
Impeachment Motion against CJI –An impeachment motion was initiated against the CJI Dipak Misra by Congress and six political parties in the Rajya Sabha. However, a controversy arose with Rajya Sabha Chairman rejecting the motion after consulting the constitutional experts. This is an evolving story as Congress might challenge the rejection of impeachment motion in the Supreme Court. They are contending that Chairman has no administrative discretion to reject the motion after requisite MPs have signed the motion. According to the law, the motion can be initiated after 50 MPs of Rajya Sabha or 100 MPs of Lok Sabha have signed a motion for Impeachment of the judge.
Aadhaar Case Hearings – The Court continued the hearings in the Aadhaar Case with the matter being heard on 12 days in April. The State argued on the constitutionality of the Aadhaar and how Aadhaar was necessary to reach out to the beneficiaries of government social security schemes. It addressed questions of data security and privacy concerns while arguing for the need for the Aadhaar identity card. The counsels for the Union reiterated that potential for misuse cannot be a ground for striking down the statute. The case will be heard next on May 2nd.
Rohingya Deportation Hearings – The Supreme Court while hearing the Rohingya Deportation Case on April 9th has directed the Centre to file a comprehensive report on the conditions in the Rohingya Refugee Camps especially in states of Haryana, Rajasthan and Jammu and Kashmir. This is after the petitioner’s counsel Mr. Prashant Bhusahan and Mr. Colin Gonsalves referred to the inhuman conditions in the Rohingya refugee camps and urged that even non-citizens like Rohingya have a right to life which was being violated. The matter will be heard next on May 8th.
Ayodhya Title Hearings – The Apex Court continued to grapple with the question of referring the matter to a constitutional bench. On April 6th, Mr. Rajeev Dhavan made a strong plea on the need for a relook into Mohd Ismail Faruqui Case which had gone into comparative significance observing that “..mosque is not an essential part of religion in Islam and namaz can be offered anywhere, even in open”. On April 27th, the counsels Mr. Salve and Parasaran opposed the plea arguing that this case should be heard as a title dispute and religious and communal sensitivities should be kept out of the court. They argued that this matter should be heard by the current three-judge bench and not be referred to a constitution bench. The matter will be heard next on May15th.
Court reserves judgment on PIL to decide ‘Master of Roster’ Issue – Hearing a petition filed by Mr. Shanti Bhushan who questioned the CJI power as being Master of the Roster and wanted the case allocation to be decided either by the Collegium or the full court, the Attorney General argued that CJI being the master of the roster is in line with constitutional practices as well as court precedents. While the petitioner lawyers Mr. Dushyant Dave argued that sensitive cases which touch upon the “survival of the democracy” cannot be left to the discretion of the Chief Justice. A two-judge bench of Ashok Bhusan and A.K. Sikri have reserved their judgment on the plea. This issue came to light during the unprecedented Press-Conference in January where allegations were made by four senior judges that sensitive matters were being allocated to the selective benches while ignoring the senior judges.
Review filed in Kashinath Mahajan Case – The Centre has filed a review against the SC decision in Kashinath Mahajan Case. The Centre in its affidavit has maintained that the judgment has created a lot of “confusion” and “misunderstanding” in the country that needs to be corrected. The Centre replied that in creating safeguards – preliminary enquiry before FIR, pre-trail bail by the judicial magistrate, no-automatic arrest- the court has gone against the provisions of the SC/ST (Prevention of Atrocities) Act and is akin to “judicial legislation”. Many other States have also filed review petitions against the judgment.
Election Commission supports the petition demanding ‘One Candidate-One Seat’ – The Election Commission has supported a petition filed by Mr. Ashwini Kumar Upadhaya in the Supreme Court seeking to bar candidates from contesting from more than one seat in polls. The petitioner has challenged the constitutionality of Section 33(7) of the Representation of the Peoples Act, 1951 that allows a person from contesting elections to Parliament and State Assemblies simultaneously from two constituencies. The Election Commission has consistently opposed the practice in 2004 and 2016 as it sees the practice as putting an unnecessary burden on the public exchequer. The Commission added that if the practice is allowed then the candidate contesting from two seats should deposit money in the account bearing the cost of holding bye-election. Law Commission in its 255th report on Electoral Reforms had also recommended amending the Representation of Peoples Act to bar candidates from contesting from multiple constituencies. However, the Centre has not clarified its stand on the issue.
Judge Loya Enquiry – A three-judge bench headed by CJI dismissed the petition seeking a probe into the circumstances of the death of Judge B.K. Loya , who was hearing Sohrabbudin Fake Encounter case. It made clear that the matter relating to the death of Judge Loya should be put to rest and no other court can entertain any petition relating to the matter. It also came down heavily on the petitioner’s lawyers – Prashant Bhushan, Dushyant Dave, Indira Jaising describing their submissions as “serious attempts to scandalize the judiciary” and attacking the credibility of the judges from the subordinate judiciary to Supreme Court. However, it fell short of initiating criminal contempt motion against the petitioners’ lawyers.
Hadiya Judgment – The SC gave a reasoned judgment in the Hadiya case. Launching a scathing attack on the Kerala High Court decision which had annulled Hadiya’s marriage to Shafin Jahan , the court held that Hadiya’s choice of faith and marriage fell within her core fundamental right and cannot be looked into by the court. It also held that Kerala High Court judgment went beyond its jurisdiction in ordering annulment of marriage while hearing a habeas corpus petition and the court was also wrong in exercising ‘Parens Partiae’ doctrine in deciding on her best interest.