Monthly Review: February 2020

While February saw fewer constitutional law developments than January, it was far from a quiet month in the Supreme Court. In an expected, but unusual move, the nine-judge Sabarimala Bench expansively interpreted the Court’s review jurisdiction, holding that it could issue referrals in review petitions. The sphere of reservations also saw developments. Additional Solicitor General Divan proposed the issues to be argued on in the case pertaining to sub-classifications within Scheduled Castes. Meanwhile, in the Maratha Reservation case, the Court declined to issue any interim relief. More below:

CASE DEVELOPMENTS

Sabarimala Review: On 10 February, a nine-judge Bench led by Chief Justice Bobde held that the Court appeared to expand its review jurisdiction. It held that it has the power in a review petition to refer questions of law to a larger bench. It did not provide any grounds for this conclusion, simply remarking in its Order that reasons are ‘to follow’. While this finding was expected, as it had already directed the Counsels to set a schedule for final arguments on merits, it was nevertheless unusual. As a majority of the counsels had argued on 3rd and 6th February, the Court’s review jurisdiction is extremely narrow, allowing the Court to correct apparent errors in a judgment. There is little precedent (if any) for a review Bench to hear original arguments on overarching questions of constitutional law.

Maratha Reservations: The Court is hearing a constitutional challenge to Maharashtra’s Socially and Educationally Backward Classes Act, 2018 that grants reservations to the Maratha community. The petitioners contend that the legislation violates Article 14 by arbitrarily treating Marathas as a separate class from OBCs. This month, the Court briefly heard the case on 4th and 5th February, in part on the question of whether to issue interim relief. The petitioners prayed for the Court to reach some kind of interim arrangement. They pointed out that the Maharashtra Government has already begun to give reservations to Marathas, despite the pending constitutional challenge. The Court declined to do so and listed the case for 17 March.

Scheduled Castes & Preferential Treatment: The State of Punjab has appealed its High Court’s 2010 judgment, striking down Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006. The provision gives first preference to the Balmiki and Mazbhi Sikh castes for Scheduled Caste (SC) reservations in public services. The High Court held that this is in contradiction with the Supreme Court’s judgment in E.V. Chinnaiah, which held that sub-classifications of the SCs violate Article 14. There is a possibility this case may be referred to a seven-judge Bench, as one of the issues proposed for consideration this month by Add’l Solicitor General Madhavi Divan is whether E.V. Chinnaiah ought to be revisited.

Permanent Commission for Women in the Armed Forces: In a significant judgment for gender equality, a Bench comprising Justices D.Y. Chandrachud and Ajay Rastogi guaranteed women in the Armed Forces (AF) the right to Permanent Commission (PC) on 17 February. It upheld the 2010 Delhi High Court judgment which directed the Union to ensure equal opportunity for both women and men for lifelong service in non-combatant roles.

ANNUAL REPORT RELEASED

This month, the Supreme Court published its annual report for the previous year –  The Annual Report on Indian Judiciary, 2018-19. Importantly, the report documents the Court’s institution, disposal and pendency figures. In the past year, the number of pending cases increased by around 4%, even though the number of cases filed (institution) had decreased by around 7%. This once again raises concerns that the various administrative reforms introduced by the Court, such as the Integrated Case Management Information System (ICMIS), have failed to make the Court’s disposal rate more efficient.

While the Annual Report is primarily administrative, it does also include other types of content, such as the ‘Landmark Judgments’ section (pp. 145-150). Several of the judgments selected also found their way on to our 10 Cases that Shaped in India 2018 and 2019 lists. They include judgments from 2018 under former CJI Dipak Misra that expanded personal liberties, such as the Section 377 and Adultery judgments. From 2019, the most high profile judgment was undoubtedly the Ayodhya Title Dispute judgment, although it arguably may have less impact than less publicized ones such as the RTI and tribunals judgements.