Although the first half of this year at the Supreme Court has continued to be defined by COVID, the year did not begin with the same concern. Instead, at the time, the Court had taken up significant and politically contentious issues.
Early in the year, the Court issued a ruling in the Central Vista case. By a 2:1 majority, the Court cleared the Union’s project to remodel the heart of the capital. They refrained from interfering in executive policy decisions.
However, the early months were dominated more by the ongoing farmers' protests against the three ‘farm laws’. The Court, in a potentially innovative move, stayed the implementation of these laws. They constituted a committee to hear the farmers’ concerns and mediate negotiations with the government. The committee has since submitted its report in a sealed cover: but the next hearing is awaited.
Regulate or Remove Sedition? The Debate Resurfaces
The protests themselves had also been brought up in Court, but the Court did not intervene. On Republic Day, the protests went into the heart of the capital. Consequently, the Noida Police filed FIRs charging MP Shashi Tharoor and six veteran journalists with sedition for social media posts in connection to the protests. The Court stayed the FIR in February. The debate on sedition and its relevance today has since grown.
In May 2021, the Court granted bail to MP Raghu Raju, who was arrested for sedition for a statement critical of the Andhra Pradesh government. Two TV channels were also charged for sharing this statement. On 31 May, a two-judge Bench had noted that sedition would ‘require interpretation in the context of the right of the electronic and print media to communicate news’, while staying the FIR.
A few days later, on 3 June, the Court delivered its judgment in the Vinod Dua case. Quashing the FIR charging him with sedition, the Court applied the Kedar Nath judgment which restricted the scope of sedition. However, it refused to regulate the filing of FIRs against journalists generally.
In February, the Court had also received a petition challenging the constitutionality of sedition. However, then CJI Bobde did not admit it, since the petitioners, three lawyers, were not charged with sedition themselves. On April 30, the Court had the opportunity to consider such a case: two journalists challenged the provision. This time, the new CJI Ramana admitted the petition.
Of Refugees, Migrants and ‘Citizens’
In an interim application heard by CJI Bobde’s Bench, the Court refused to stay the deportation of Rohingya refugees. On 8 April, the Court held that the right against deportation appeared to be available only to citizens.
In June, the Indian Union Muslim League also filed an interim application in the Citizenship Amendment Act, 2019 (CAA) case. They submit that a recent Government Order seeks to achieve the outcome of the CAA by executive order.
In April 2021, a group of Overseas Citizens of India (OCIs) also challenged section 7D of the Citizenship Act, 1955. This section allows the Government to take away OCI status on grounds such as expressing disaffection to the Constitution or the integrity of India. They argue that this restricts their freedom of speech.
Equality: Reservations, Systemic Discrimination and Pending Cases
Similarly, the Court has pronounced multiple judgments on equality law.
In its landmark Maratha Reservations judgment on 5 May, the Court has upheld the 50% limit on reservations. It has also held that the 102nd Amendment Act, 2018 took away States’ powers to identify socially and educationally backward classes. So, it read down the provision granting Marathas reservations. On 28 June, the review petition on the second issue was dismissed.
In obiter, the Court had acknowledged the broader framework of affirmative action, beyond reservations and caste. In a similar vein, a petition has been filed by Abhinav Ramkrishna seeking that orphans be recognised as a backward class.
On 28 June, the Court also held that reservations in promotions is a right for persons with disabilities: Article 16(4) is a part of Article 16(1). They are not restricted by the holding in Indra Sawhney which only affects backward groups on the basis of caste.
In Vikash Kumar, the Supreme Court confirmed the rights of persons with disabilities to be provided reasonable accommodation, regardless of whether they had more than 40% of a disability.
The Court adopted an intersectional approach to disability, caste and gender in Patan Jamal Vali. While interpreting the evidentiary burden for the crime of rape under the SC/ST (Prevention of Atrocities) Act, 1989, it recognised the intersectional nature of oppression, that was the basis of the provision. However, despite this, it maintained the high burden of proof, and set aside the conviction under this provision, upholding it under the IPC instead.
The systemic analysis of gender violence also finds a place in the Aparna Bhat judgment, in which the Court issued guidelines on the grant of bail and judgment writing in cases of sexual violence. In Lt. Col. Nitisha, the Court struck down gender discriminatory practices of promotion in the Indian Army. In order to tackle systemic oppression, the Court relied on the principle of indirect discrimination for the first time.
In matters pending before the Court, activist Santa Khurai has challenged the Blood Donation Guidelines which bar men who have sex with men, transgender persons and female sex workers from donating blood. The petition argues that this discriminates on the basis of gender identity and sexual orientation.
Ashwini Kumar Upadhyay has also filed two cases, on the basis of gender equality. In one case, he has sought uniform divorce and alimony laws, which are currently governed by religious personal laws. In another matter, he has sought a uniform age of consent for marriage for men and women.
However, the majority of the Court’s causelist was dominated by urgent cases arising from the second wave of the pandemic. The Court continued to hear its suo moto cases from the previous year, using this innovative power to scrutinise the Government’s response.
In the cases dealing with prisoners and migrant labourers, the Court ordered directions similar to last year: such as to constitute a High Powered Committee that will decide on releasing prisoners and to ensure labourers have food supplies. Like last year, the conduct of board exams was also challenged. CBSE, ICSE and some State board exams were cancelled, and objective marking criteria put in place.
The concern of children orphaned due to COVID was also brought up in the suo moto case on vulnerable children. The Court has ordered data to be collected on the matter.
The most wide-ranging case dealt with a national policy for essential supplies. The hearings focused mostly on vaccine policy after the demand for oxygen reduced. The Court's questions, some argue, prompted the Centre to reconsider its vaccine policy.
Election Cases: Multi-Member Wards, Independence of Election Commission, Voting Rights
COVID also caused delays in the conduct of elections. In the case of Goa, municipal elections had been delayed by the State Election Commissioner. However, in its 12 March judgment, the Supreme Court came down heavily on the State Government since the Commissioner was an employee of the State, not independent. It ordered the conduct of elections.
In another judgment on 24 February, the Court had also upheld multi-member wards for municipalities in Gujarat as constitutional.
Two cases have been instituted on the conduct of elections. In one case, the petitioners seek reforms in electoral laws to allow e-voting or postal voting, so that migrants can enjoy voting rights. In another case, petitioners are seeking to challenge the process of appointing members to the Election Commission, since the current one threatens its independence.
In a pending case challenging the ‘electoral bonds’ scheme, the petitioners had sought an interim stay on the issue of these bonds. They argued that it allowed anonymous donations to political parties. The then CJI Bobde’s Bench refused, stating that there were sufficient safeguards.
Pendency in the Judiciary: Cheque Dishonour Cases, Criminal Trials and High Courts
Over the last month of CJI Bobde's tenure, he delivered three significant decisions tackling pendency in the judicial system, which has been on a rise during the pandemic.
On 16 April, a Constitution Bench issued guidelines in cheque dishonour cases, which formed a substantial part of the lower judiciary’s backlog of cases. Among other things, it ordered that affidavits would be sufficient as testimony and multiple offences could be tried jointly.
In an order on 20 April, a bench led by the CJI issued guidelines for criminal trials, to ensure uniformity and proper recording of evidence, that would speed up the process at appellate levels.
Another bench led by the CJI also delivered two connected orders directly addressing pendency at High Courts. It paved the way for appointing ad-hoc judges and issued guidelines for the same. In the other order, it set forth a timeline for the process of appointing judges to High Courts.
These decisions are vital as pendency has continued to increase during the pandemic.
Functioning During the Second Wave and Increased Transparency at the Court
As the second wave of the pandemic in India led to a surge of cases and fatalities, the Courts were pushed to reduce its functioning. Hybrid hearings were set to begin from 15 March 2021, as the Courts had gradually eased back into physical hearings since its closure in March 2020.
The second wave stopped this short. From 22 April onwards, the Court was pressed to hear only urgent matters. On the insistence of the Bar, they also brought forward the Summer vacation and closed 4 days early on 10 May.
However, the pandemic has also increased the focus on technology and accessibility at the Court. Besides continuing with it’s E-Filing and E-Copying modules, the e-Committee of the Supreme Court has been working on measures for transparency.
On 13 May, they provided virtual access to the media through the Supreme Court app. On 7 June, the e-Committee launched Draft Rules on live-streaming for High Courts, with the apex Court likely to follow soon.
Other Matters: Places of Worship Act Challenged; Aadhar Review Rejected
Upadhyay has also filed two further cases. Along with Subramaniam Swamy, he has challenged the Places of Worship Act, 1991, which prevents the ‘character’ of a place of worship from being changed. He has also challenged the constitutionality of the grant of minority status on a nation-wide level, arguing that it should be done on a State-wise basis.
Among other cases in the first half of the year, the Court also dismissed the review of the Aadhar judgment by a 4:1 majority. It held that mere expression of doubt by another Bench was not reason enough to reconsider the judgment. In KA Najeeb, the Court held that gross delay was a valid ground for bail under the UAPA.
The Bench: Justices Malhotra, Bobde Retire; Shantanagoudar Passed Away; Ramana is 48th CJI
On 13 March, J Indu Malhotra retired, leaving only one woman on the Supreme Court’s roster. On 24 April, J Shantangoudar, who was a judge for four years, passed away.
Earlier that day, the President had sworn in the 48th Chief Justice of India, CJI NV Ramana. Taking over the position from CJI Bobde, he will hold the post for 16 months. CJI Bobde had retired after eight years on 23 April, a year and half of which he served as Chief Justice.
The Next Half of the Year
The Court opened after its summer vacation on 28 June. It will continue to hear matters relating to the fallout of the COVID pandemic, though it is likely that they will not be as frequent as during the peak of the crisis.
Other pending matters will return to higher priority as the Court opens back up. The interim application in the CAA case is likely to bring the issue to the forefront. Other major pending petitions such as the challenge to the abrogation of Article 370, the constitutionality of Farm Laws and the challenge to sedition are also worth watching.
Challenges to the IT (Intermediary) Rules, 2021 are also likely to reach the Supreme Court after pending challenges in the High Courts.