Monthly Review: April 2024

In April the Supreme Court heard two Constitution Bench cases and delivered a verdict on a crucial case concerning electoral transparency

Two nine-judge constitution benches hearing some of the oldest pending cases played across ten days in April. Adding to the action were important cases around elections—the case for 100 percent verification of VVPATs and for the release of the Delhi CM and leader of Aam Aadmi Party (AAP) Arvind Kejriwal in time to run a campaign. The Court also saw the retirement of Justice Aniruddha Bose, bringing the sitting strength of the Court to 32. 

Elections and EVMs

On 26 April 2024, just as the second phase of the 2024 General Elections commenced, a bench comprising Justices Sanjiv Khanna and Dipankar Datta rejected a plea seeking 100 percent verification of votes cast on EVMs with VVPATs. 

The Association of Democratic Reforms, the lead petitioner in the case, had approached the Court arguing that voters had the fundamental right to know that their vote was cast correctly. Over two days of arguments, they submitted that the present verification system, which mandates verification of five randomly selected polling stations in each assembly constituency, was insufficient. 

The Election Commission (ECI) argued that the present system was secure and had enough checks and balances in place to ensure transparency in voting. It explained the technicalities of the EVM-VVPAT system to the Court in great detail to the Bench, assuring them that the process was sound. 

In its 56-page judgement, the Bench cautioned litigants against filing petitions based on mere apprehensions. Based on the ECI’s explanations of the EVM-VVPAT system, the Court found the safeguards sufficient to conduct elections that are truly free and fair. 

Old buildings, older Constitution provisions

For four days in April, a nine-judge Constitution Bench led by Chief Justice D.Y. Chandrachud heard one of the oldest pending cases before the Supreme Court—Property Owners Association v State of Maharashtra

The issue first reached the Supreme Court in the 90s when property owners from Mumbai challenged parts of the Maharashtra Housing and Area Development Act, 1976 (MHADA) which allowed the Mumbai Housing Boards to acquire “cessed properties” for restoration. 

The provision was meant to give effect to Article 39(b), which imposes an obligation on the state to “direct its policy towards securing” that “ownership and control of the material resources of the community are so distributed as best to subserve the common good”. The nine judges will decide whether “material resources of the community” under Article 39(b) of the Constitution include privately owned property. 

In the course of the hearings, an old constitutional question reared its head again. Was Article 31C of the Constitution revived after the Supreme Court struck down a substitution to the provision? In other words, is an original provision reinstated if the provision brought to replace it is itself struck down?

The case was reserved for judgement after the final hearing on May 1st. 

Ethanol production, on the rocks

On 18 April 2024, the top court reserved judgement on whether the Union or the states have the power to regulate industrial alcohol. Over six days in April, the Supreme Court heard arguments on whether in Entry 8 of State List, which gives states control of “intoxicating liquors,” framers of the Constitution meant just potable alcohol or all alcohol. The case also hinged on whether under Entry 52 of the Union List and Section 18-G of the Industries (Development and Regulation) Act, 1951 (Industries Act), the Union had taken control of manufacture and production of industrial alcohol out of “public interest”. 

At the heart of the case is concerns over revenue collected from regulation of industrial alcohol by state governments, which they argued was crucial in a post-GST era. They also argued that the state’s control over industrial alcohol was key to ensure that it is not illegally sold as drinking alcohol. Finally, they argued that India’s federal structure envisaged autonomy for states, part of which was control over this industry, exemplified in Entry 33 of the Concurrent List. 

Need more than a note!

In November 2023, the Supreme Court had directed the Union Government to conduct a consultative process with state governments, insurance companies, gig workers and other stakeholders on the impact of allowing all Light Motor Vehicle (LMV) licence holders to drive transport vehicles. The five-judge Bench was hearing a challenge to Section 2(21) of the Motor Vehicles Act, 1988 (MVA) which automatically entitled LMV licence holders to drive transport vehicles including taxis, other privately owned passenger vehicles. Petitioners had argued this created great public safety concerns. The Court had noted that scrapping this provision entirely would affect scores of gig workers whose livelihood would be threatened. 

In April this year, the Union submitted a short note on the consultative process taken up so far. They also submitted a letter from the Ministry of Road Transport and Highways with proposed amendments to the MVA. The Bench, which seemed to have expected to see the results of the consultation, expressed that they wanted to see substantial engagement from the Union and not merely a note. The Bench recommended that the Union introduce the proposed amendments to the MVA as a first step. The Court would then assess its implementation before delivering the judgement to see if the issues raised in the case were appropriately addressed. The Court will hear the case again in July when the newly constituted Parliament assembles. 

Bench hears Aam Aadmi

On 15 April 2024, the Supreme Court started hearing Delhi Chief Minister Arvind Kejriwal’s plea challenging his arrest by the Enforcement Directorate (ED) under Section 19 of the Prevention of Money Laundering Act, 2002. Kejriwal argued that his arrest did not satisfy the criteria for arrest required under PMLA. Appearing for Kejriwal, Senior Advocate Abhishek Manu Singhvi argued that Kejriwal’s arrest was a part of a “cat and mouse game.” Singhvi pointed out that Kejriwal was arrested five days after the Model Code of Conduct in the 2024 Lok Sabha Elections. He claimed that the ED did not have relevant reasons to believe that Kejriwal was guilty. 

Age, Merit, Vacancies

In the first half of April, the Supreme Court heard petitions challenging the appointment of 68 judicial officers in Gujarat. The petitioners were aspiring judges who argued that they were not selected by the Gujarat High Court despite scoring higher grades in the suitability test for appointment of District Judges. They contended that candidates with lesser marks but higher seniority were preferred instead. The Court looked into whether “merit-cum-seniority” for appointing judges intends to give more weightage to seniority or vice versa. The matter is pending before a bench led by Chief Justice D.Y. Chandrachud. 

Justice Aniruddha Bose hangs up his robes

On 10 April, Justice Aniruddha Bose retired after a stint of five years at the Supreme Court. His tenure was slightly shorter than the average tenure of his brother judges. 

In this time at the Supreme Court, Justice Bose authored 67 judgements. He was the most active in 2019 when he was part of 86 benches, and wrote the most number of judgements a year in 2020 (19 judgements).

Justice Bose was part of crucial Constitution Bench cases, including challenges to the guidelines for passive euthanasia, appointments of members of the ECI, and the constitutionality of bull-taming sports like Jallikattu.

A cure without a disease: The Delhi Metro Rail Case

On April 10, a division bench led by CJI D.Y. Chandrachud delivered judgement in Delhi Metro Rail Corporation Ltd. (‘DMRC’) v Delhi Airport Metro Express Pvt. Ltd. overturning a ₹7,500 crore arbitral award. The case concerned a public-private partnership to construct an express metro-line to the Delhi airport which fell apart after defects were discovered in the construction undertaken by DMRC. In November 2017 an arbitral tribunal consisting of engineers had ruled against the DMRC after analysing whether DMRC had “cured or taken effective steps for curing” the breaches complained of. Two Benches of the Delhi High Court and the Supreme Court had upheld this verdict. 

In a curative petition hearing, the Supreme Court overturned the award, holding that the tribunal had not properly distinguished between “curing” defects and “taking effective steps to cure” defects. Advocate Gulnar A. Mistry argues that the judgement has serious consequences on the validity and strength of future tribunal awards by non-legal professionals. The case also raises concerns on the ever broadening scope of curative petitions. She asks: After DMRC, what happens to the doctrine of finality? 

On never-ending criminal investigations, the Supreme Court is its own worst enemy

Investigative agencies such as the Enforcement Directorate (ED) have a practice of filing numerous supplementary chargesheets in a case which often results in their investigations dragging on for years. They often approach the Court with a report on their investigation and at the same time, submit to the Court that they’re sure to return with more. The result: Courts struggle to frame charges and start the trial. And for the accused, this means that the deadline on investigations do not apply, and they can’t seek bail.

Lawyer Abhinav Sekhri argues that in these cases, the Courts must “engage with the police process in a substantive fashion to discern the completeness of investigations.” He then explores the challenges to this approach, the Court’s own view on the larger issue of unending investigations and the way forward. 

Bonds, Electoral Bonds: An SCO Special

The biggest story preceding the 2024 Lok Sabha Elections was the Supreme Court’s quashing of the Electoral Bond Scheme. A five-judge Constitution Bench held that the Scheme violated voter’s right to information and did not effectively curb black money or protect donor interests to justify secrecy of donations.

The making of the Electoral Bonds Scheme was a complicated story, involving the Finance Ministry, Reserve Bank of India, the Election Commission of India, and various opposition parties. Right to Information applications filed by transparency activists showed that the way the Scheme was pushed through the echelons of government and bureaucracy left far too many questions on process and accountability unanswered. We told the story of the making of the Scheme in Part 1 of our feature “The making and unmaking of the Electoral Bond Scheme.”

The journey of this case in Court spanned around six years. With no stay order from the top Court, the Scheme continued to be implemented. Between January 2018 and February 2024, a total of ₹16,518.10 crore worth of bonds had been sold. We captured the lead up to the five-judge Constitution Bench hearings, the arguments made in Court and the Supreme Court’s final decision in Part 2 of the feature. 

Manifestos and judicial reforms

By April 2024, the Model Code of Conduct had come into effect and most political parties had released their election manifestos ahead of the upcoming elections. Judicial reforms did not go unnoticed. From a Supreme Court Bench in Chennai to a commission for judicial appointments, political parties made several promises of systemic reform. We explore key promises here.

Here comes the Sun: SCO Reviews

The first quarter of the Supreme Court was dominated by hectic Division and Constitution Bench activity. From Electoral Bonds, the Chandigarh Mayoral Election, the Bilkis Bano verdict, and a Court working at full strength—The Supreme Court saw it all. Our Spring Session Review recapped the Court’s activity from 1 January 2024 to 31 March. We looked into the key judgements, hearings, and institutional developments that took place during the three months. Make sure to check it out!