2018 Monsoon Session Review

Monsoon Session Review of the Supreme Court

The Supreme Court Observer divides the judicial calendar into four seasonal sessions as a means of analysing the Supreme Court of India’s performance. Officially, the Supreme Court does not follow a session calendar. Nevertheless, we have found it a useful analytical tool:

Spring Session (January 4th – February 24th)

Summer Session (March 5th – May 19th)

Monsoon Session (July 2nd – October 13th)

Winter Session (October 22nd – December 15th)

The 2018 Monsoon Session was retired Chief Justice Dipak Misra’s last session at the helm of the Supreme Court. The last week of retired Chief Justice Dipak Misra saw him delivering big judgments on fundamental rights. Notably, 9 of these judgments were delivered by Constitution Benches (5 or more judge Benches).

The most notable Constitution Bench judgments include:

• Constitutionality of the Aadhaar Act, Justice KS Puttaswamy (Ret’d) & anr v. Union of India & or
  • A 4:1 majority upheld the Aadhaar Act as constitutional, while striking down certain provision in the Act as unconstitutional.
• Decriminalisation of Section 377 IPC, Navtej Singh Johar v. Union of India
  • The Bench unanimously struck down Section 377 of the IPC to the extent that it criminalised same-sex relations between adults.
• Sabarimala Temple Entry, Indian Young Lawyers Association & ors v. State of Kerala & ors
  • A 4:1 majority held that the Sabarimala Temple’s custom of excluding menstruating women is unconstitutional.
• Decriminalisation of Adultery, Joseph Shine v. Union of India
  • The Bench unanimously struck down Section 497 IPC, thereby decriminalising adultery.
• Special Status of Delhi, Government of NCT Delhi v. Union of India & anr
  • The Bench unanimously held that the Chief Minister of Delhi and not the Lieutenant Governor is the executive head of the Delhi government.

CJI Misra, Defender of Fundamental Rights?

Ret’d CJI Misra led all of these Benches. It appears that he wanted to secure his legacy as a defender of women’s rights. In particular, his judgments in Sabarimala and Adultery demonstrated his commitment to protecting the fundamental rights guaranteed to women under Articles 14, 15 and 21 of the Constitution. In his judgments, he emphasized that religious customs and penal provisions that are based on archaic and discriminatory gender stereotypes cannot justifiably form the basis of laws.

In Sabarimala, retd. CJI Dipak Misra ruled that the temple’s custom discriminates against worshippers on the basis of gender. In particular, he held that the custom was unconstitutional as it restricted the ability of women to exercise their fundamental right to practice faith, under Article 25(1). Any custom that leads to gender exclusion cannot be considered as an essential religious practice by the Court. Essential religious practices are practices, which if altered would irrevocably alter the religion they are a part of. Further, CJI Misra held that the Sabarimala Temple, as a Hindu sect, is subject to the State social reform mandate under Article 25(2)(b). The social reform mandate specifically gives the State the power to reform public Hindu institutions so as to make them open to “all classes and sections of Hindus”. The Sabarimala Temple had attempted to argue in court that it was a separate religion so that it would not be subject to the social reform mandate. However, the CJI Dipak Misra rejected this argument on the grounds that it shared too many customs with Hinduism to be considered a separate religion.

In Adultery, he held Section 497 IPC  to be unconstitutional, in part, because it treats men and women unequally. Further, he stated that not only does it treat women and men unequally, but it does so in an unjust and arbitrary manner. He concluded that in doing so, Section 497 IPC violates a woman’s fundamental rights to equality, non-discrimination and life and liberty under Articles 14, 15 and 21. He emphasized that Section 497 IPC assumed an archaic conception of gender, which treats a wife as a husband’s property. He stressed that no law can justifiably be based on discrimminatory gender stereotypes.

While on the one hand CJI Misra expanded protections granted to women, he on the other restricted the ability of religious denominations to exercise their right to freedom of religion under Article 26. Specifically, CJI Misra delivered a series of judgments that narrowly interpreted Article 26(b), the denominational right to manage internal religious affairs without State interference. Most explicitly, in Sabarimala, CJI Misra’s judgment suggested that Article 26(b) is subject to the other Articles in Part III of the Constitution (fundamental rights). In particular, he stated that, firstly, the Sabarimala Temple’s custom cannot be protected as an essential religious practice because it violates a women’s right to practice their faith and, hence, their right to equality, non-discrimmination and dignity. Secondly, he held that the Sabarimala Temple is subject to the social reform mandate, regardless of whether this constricts the temple’s power to manage its own internal affairs. He drew these two conclusions with an expansive interpretation of the term “morality” in Article 26. Article 26 states that the denominational right to freedom of religion is subject to “public order, morality and health”. For CJI Misra, morality includes a strong adherence to other fundamental rights guaranteed under the Constitution. Notably, Justice Indu Malhotra dissented, stating that the Supreme Court cannot priviledge one set of fundamental rights over another set.

In addition to narrowly interpreting Article 26, CJI Dipak Misra also arguably failed to protect the fundamental rights to speech and expression, and dignity under Articles 19 and 21. In cases that faced pressure from the executive and the legislature, Benches led by Misra delivered judgments that prioritized public order over the individual.  In Activists Arrest (the Bhima Koregaon case), the majority judgment chose not to form an SIT probe into the Maharashtra Police investigation. Critics argue that the Court failed to protect a citizen’s right to freely criticize the State and, in failing to do so, the Court failed to protect the dignity of the arrestees. Similarly in Aadhaar, the Court was criticized for failing to protect the dignity of disenfranchised sections of society. The Court upheld the Aadhaar Act, which makes it necessary for persons to present an Aadhaar number in order to receive certain State subsidies. Critics argue that for the impoverished that the requirement imposes a high opportunity cost on impoverished persons, as there are many technical issue with the Aadhaar verification system.

In conclusion, CJI Misra’s Court has been praised for striking down archaic sections of the Indian Penal code, such as Section 377, 497. However, his Court has also received criticism for, firstly, restricting the denominational right to freedom of religion and, secondly, failing to protect fundamental rights when faced with State pressure.

Landmark Judgments: Outcome Achieved vs Means Used

Will the Constitution Bench judgments delivered under CJI Dipak Misra become lasting legal precedent? On one hand, the answer to this question appears to be yes. In some section, CJI Dipak Misra’s judgments were received very positively for securing the consitutional vision of India as a secular egalitarian polity. In particular, his judgments in the Decriminalisation of Adultery, Decriminalisation of Section 377 IPC and Sabarimala Temple Entry were praised for ensuring the fundamental rights of traditionally disenfranchised segments of society, such as women, homosexuals and transgender persons. However, whether these judgments will stand the test of time is, to a certain extent, in doubt. The means used in some of these judgments suffered from an unhealthy degree of nebulousness. In Section 377 IPC, there was the procedural question of how the Court could be delivering a judgment on a matter with pending curative petitions. The Sabarimala Temple Entry judgment arguably suffered from gaps in reasoning. Three review petitions of the judgment have already been filed this October. They raise a number of questions, such as whether the Court had the jurisdiction to entertain a PIL by petitioners who were not affected directly by the Sabarimala custom of excluding menstruating women. Justice Indu Malhotra in her dissent pointed out that the main petitioner, India Young Lawyers Association, were not Ayappa devotees and were not directly affected by the custom, yet the court heard the PIL.

Other Notable Judgments

Besides the big ticket fundamental rights cases decided in the last week of CJI Dipak Misra’s tenure, the Court delivered the following significant judgments in the last session:

Special Status of Delhi (NCT v UOI) – On July 4th, a five-judge Bench of the Supreme Court unanimously held that the Chief Minister and not the Lieutenant Governor (LG) is the executive head of the Delhi government.  The Court asserted that the executive power of the Delhi government is co-extensive with the legislative power of the Delhi Assembly. Thus the LG is bound by the ‘aid and advice’ of the Council of Ministers on all matters where the Delhi Assembly has the power to make laws. This unanimous verdict in favour of the Delhi government will hopefully end the constitutional logjam, which has been hampering the administration of Delhi for the last 3 years.

Cow Vigilantism (Tehseen Poonawalla v. UOI) – The Supreme Court delivered its judgment in a writ petition filed by Tehseen Poonawalla against the growing menace of cow vigilantism. Delivering a unanimous verdict, the three-judge Bench came down heavily on what it considered State inaction to prevent mob vigilantee justice. The Court observed that “no individual in his own capacity or as a part of the group can take law into his or their hands and deal with a person treating him as guilty.” The Court issued a slew of guidelines to all State governments under Sections 153 and 295A of the Indian Penal Code, 1860.  Among various guidelines, the court directed the appointment of a nodal officer in each district to prevent incidents of mob lynching and cow vigilantism. The Court also directed the Centre to frame a special law against lynching. The Court is currently monitoring the implementation of the guidelines on a periodic basis.

References to larger Benches:

Ayodhya Title Dispute – On September 27th, the three-judge Bench in a split of 2:1  verdict held  that Ismail Faruqui judgment of 1994 which held mosque to not be  integral to the practice of Islam, does not require reconsideration by a larger bench. The matter will now be resolved as a land title dispute by a three-judge bench.  The Bench upheld the validity of Faruqui, which held that in questions of State land acquisitions, mosques are not an essential feature of Islam.

Justice Bhushan, on behalf of Chief Justice Misra and himself, wrote the majority opinion. Justice Nazeer wrote a dissenting opinion.

Hearings in the case will resume from October 29th 2018.

Reservation in Promotion – On September 26th 2018, the Court delivered its verdict in the Reservation in Promotion case. A five-judge Bench of the Supreme Court unanimously held that the judgment delivered in Nagaraj in 2006, relating to reservations in promotions for SC/ST persons, does not need reconsideration by a larger seven-judge Bench. The Bench also struck the demonstration of further backwardness criterion from Nagaraj. Justice Nariman wrote the unanimous opinion.

In Nagaraj, the Supreme Court had held that it was not mandatory for states to grant reservations in promotions and the same was left to the discretion of the State. If the State exercised its discretion in favour of granting reservation, it was to collect quantifiable data to demonstrate backwardness and inadequacy of representation. Dealing with the aforesaid conditions in Nagaraj , the Court has held that the condition requiring the States to collect quantifiable data on the backwardness of the SC/ST community is contrary to the nine-judge Bench decision in Indra Sawhney. Prescribing of the collection of quantifiable data as a pre-requisite for granting reservations in promotions has been held to be invalid and the decision in Nagaraj stands modified accordingly.

However, the court added that the principle of creamy layer exclusion would apply to SC/STs. Earlier, it applied only to Other Backward Classes (OBCs) in matters of reservation.

Female Genital Mutilation (Sunita Tuwari v. UOI) – On September 24th, a three-judge Bench led by CJI Misra referred the matter to a five-judge Constitution Bench. The Court is assessing whether the practice of female circumcision is unconstitutional. The petitioners claim that the practice violates the fundamental rights to equality, dignity and privacy. Female circumcision is widely practiced by the Dawoodi Bohra community, who claim it is a safe medical procedure and, further, an essential religious custom protected by Articles 25 and 26 of the Constitution. The Bench ultimately decided to refer the case to a five-judge Bench because it held that one of the main questions at hand was whether the practice can be considered an essential religious practice. According to precedent, Constitution Benches hear questions pertaining to essential religious practices.

Court Statistics: Pendency and Constitution Benches

The following is a brief quantative overview of the Monsoon Session.

Pendency

One important measure of a Supreme Court’s performance is its ability to reduce the number of pending cases. The number of pending cases before the Supreme Court in any given month is derived by: Pendency_{month n} = Pendency_{month n-1} + Filed Cases – Disposed Cases. Pendency in the Monsoon Session this year has marginally increased from 55,432 cases to 55,946 cases, an increase of around 0.9% (see orange highlight in graph below). Unfortunately, it is unclear whether this increase was caused by an increase in the number of cases filed or a decrease in the number of cases disposed. The Supreme Court only publishes filing numbers in its Annual Report at the end of the year. We predict that the increase was caused by an increase in filing rates, as the number of admission matters increased by 4.47%, which is significantly higher than the increase in pendency of 0.9%. However, it is important to note that admission matters can pertain to cases filed on any date. Hence the number of admission matters heard may actually reflect an increase in cases filed from a session other than the Monsoon Session. We will have to wait until the Supreme Court’s Annual Report is published in order to reach any definitive conclusions.

The Monsoon Session is highlighted in orange.

Constitution Benches

One notable feature of the Monsoon Session is the high number of Constitution Bench (CB) judgments delivered relative to the total number of CB judgments delivered across the entire year. We defined the year in terms of Sessions: Winter 2017 to Monsoon 2018. The Monsoon 2018 Session saw 9 CB judgments delivered and in total there were 15 CB judgments delivered over the entire year. In other words, 60.00% of all CB judgments delivered occurred in the Monsoon Session. It is important to note that the Monsoon Session is, along with the Winter Session, the longest session. However, even if one adjusts for the number of days in each session, the Monsoon Session saw a proportionally high number of CB judgments. For the Monsoon Session the proportion of CB judgments to number of days in the Session is 0.09, whereas the average proportion of CB judgments to number of days for the other three Sessions is 0.03.