By Amritananda Chakravorty
2018
will mark one of the most controversial and pathbreaking years in the history
of the Indian Judiciary, especially that of the Supreme Court of India. While
the year witnessed the landmark judgments in the form of decriminalisation of
adult homosexual relations, and adultery, as well as the reiteration of the right
to choice in Hadiya’s case, it also saw the complete abdication of the judicial
role in many cases, including Judge Loya, Bhima Koregaon arrests, and finally
the Rafale defence deal. Most importantly, 2018 would be remembered as the year
when the judicial independence was under most threat.
The
iconic press conference by the four senior-most judges led by Justice J.
Chelameswar on 12th January, 2018 set the ball rolling, when he told the media
that ‘democracy was in peril’. Though the exact reasons of the four senior most
judges speaking out against the then Chief Justice Dipak Mishra was never made
public, it was clear that tensions at the bench were simmerin g for long, and erupted finally, owing to the
alleged biased allocation of cases to certain ‘selected benches’. For the first
time, the insular apex court judges were forced to go to the media and public,
in order to force the Chief Justice Mishra to listen to their concerns.
Whether
the Press Conference achieved its desired results or not, one thing was clear
to all that the Indian Judiciary was undergoing one of its biggest crisis, and
that too in an era of a majoritarian government, with no regard for either
parliamentary procedure or judicial propriety. In fact, executive interference
with judicial appointments has been one of the highest this year, with the Modi
Government sitting on Justice K.M. Joseph’s elevation to the Supreme Court for
months, thereby delaying with his seniority, and playing havoc with the
collegium system of judicial appointments.
Chief
Justice Dipak Mishra was in office till 2nd October, 2018. During these 9
months, he was known more for the judicial discontent than the content of his
judgments. At the same time, he was part of the Constitution Bench judgments
that produced certain fantastic jurisprudence, mostly due to the efforts of
Justice D.Y. Chandrachud and Justice Rohinton Nariman.
Hits: Some of the pathbreaking judgments are:
- Shafin Jahan vs. Ashokan [(2018) SCC OnLine SC 343]: The Supreme Court
emphatically upheld the right of a woman (here a woman who had converted to
Islam and married a Muslim man) to choose her partner as well as her religion,
as part of her fundamental right to autonomy and liberty guaranteed under
Article 21 of the Constitution.
- Guidelines against mob lynching: Detailed directions were given to the
Central Government and the State Governments to prevent mob lynching as well as
for the payment of compensation to the victims.
- Navtej Johar & Ors. vs. Union of India [(2018) 10 SCC 1]: Overruling
its horrific judgment of 2013 in reinstating Section 377, IPC, the Supreme
Court struck down Section 377 as unconstitutional for criminalising sexual
relations between consenting adults, including same sex relations. It upheld
the rights of lesbian, gay, bisexual and transgender persons to form intimate
relations, to live with dignity and freedom and to be who they are, without
fear and discrimination.
- Joseph Shine v. Union of India: The Supreme Court struck down Section
497, IPC that criminalised adultery to the extent that if a man had sexual
relation with a married woman, then the husband could prosecute the adulterer,
unless the latter had consented/colluded with the same. But a woman could not
prosecute, if her husband was having sexual relations outside the marriage.
This archaic law was struck down as discriminatory, and arbitrary and violative
of a woman’s dignity and agency.
- Entry of women into Sabarimala temple: Ending a longstanding feud, the
Supreme Court in a majority decision held that no woman could be stopped from
entering Sabarimala temple, and any rule that bars women from 10 to 50 years
(i.e., menstruating women) is unconstitutional. This judgment led to lots of
protests, especially fueled by the rightwing political parties, who are using
the judgment for their political motives.
Though on different issues, these decisions are
bound by an underlying thread of an expansive interpretation of the fundamental
rights jurisprudence, entrenching the principle of constitutional morality, and
an emphasis on the transformative potential of the Constitution.
Misses: Despite the landmark decisions in the areas
of gender and sexuality, it seemed that when it came to political issues, the
Apex Court failed to exercise its robust judicial scrutiny and accepted the
Government’s contentions at their face value.
- Dismissal of plea to do independent investigation into Judge Loya’s
case: In one of the most controversial decisions of the year, the Supreme Court
dismissed a plea to conduct an independent investigation into the mysterious
death of Judge Loya in 2014, when he was hearing the Sohrabuddin Sheikh’s fake
encounter case, wherein the prime accused was Amit Shah. In a highly
problematic decision, the Court did not ask the State of Maharashtra to file a
counter affidavit and fully accepted the Government’s argument that a fair
enquiry had been done by the police and nothing suspicious was found about the
death and the Judge died of ‘natural causes’.
- Upholding the validity of the Aadhaar Act: The Constitution Bench
headed by Chief Justice Mishra in a majority judgment upheld the highly
controversial Aadhaar Act, though it struck down its mandatory linkage with
private operators like Banks and mobile companies. Without dealing with all the
objections raised by the Petitioners, including the mass exclusions faced by
the poorest populations from socio-economic benefits, owing to compulsory
Aadhaar requirement, the Court went ahead and accepted the government’s reason
of preventing pilferage of ration and duplication. In his dissent, Justice
Chandrachud struck down the Aadhaar Act only for the reason that it was passed
as a money bill, in complete contravention of the Constitution.
- Rafale petition: This was one of the first crucial tests of Chief
Justice Gogoi, who made a mess of the whole case. While the Court rejected the
petitions seeking an independent investigation into the procurement of Rafale
fighter jets by the Government, amidst allegations of corruption, and bypassing
the procurement procedures, on the ground of jurisdiction, in the same breadth,
the Court chose to deal with certain contentions on merits, without having all
the facts beforehand. In fact, in a repeat of Judge Loya’s case, the Court did
not issue notice to the Government, but allowed the Government to submit
details in a ‘sealed cover’, with no opportunity given to the Petitioners to
counter the same. In an embarassing blunder, the judgment stated that the
pricing of the Rafale deal has been shared with the CAG, who has prepared a
report, which has been given to the Parliamentary Accounts Committee and a part
of it shared with the Parliament too, when no such CAG report was shared with
the PAC.
All these judgments showed the inconsistency with
which the Supreme Court chooses to interfere in the policy decisions or to
monitor investigations, especially pertaining to the ruling regime.
As the year comes to an end, it is hoped that the
judiciary will be more consistent in its decision-making, decry the use of
‘sealed cover’ in adjudication, and stand up to the Executive bullying, whether
in judicial appointments or in administration. (IPA Service)
The writer is
a leading Delhi-based Human Rights lawyer.
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