2018 Summer Session Review

This is a review of the Supreme Court Summer Session from March 5th to May 19th. Though the Supreme Court does not officially follow the session calendar, but Supreme Court Observer has divided the annual calendar into 4 sessions for 2018 – Spring Session(January 4th-February 24th), Summer Session (March 5th – May 19th), Monsoon Session (July 2th – October 13th) and Winter Session (October 22nd – December 15th). This session review has been divided into 3 sections  – Bench News, Hearings and Reserved Judgments and Decided Cases.

This session was a dramatic one especially for the bench where an impeachment motion was initiated agaisnt the sitting Chief Justice of India. It also saw three judges retiring including Chelameswar J who was one of the four judges who gave the landmark press conference criticizing the functioning of the Supreme Court. In another significant moment for gender equality on the bench, noted senior advocate Indu Malhotra became the first woman to be elevated to the bench directly from the bar. The arguments in the Aadhaar case was concluded in this session and the judgment is awaited in the next session. Hearings in the Ayodhya Title Dispute case and the Rohingya Deportation case also witnessed significant progress. In a significant judgment in Common Cause, the court held that right to die with dignity is a fundamental right in the context of passive euthanasia.

Bench News

Retirements: Three Supreme Court Judges retired this session – Amitava Roy J (March 1st), R.K. Agarwal J (May 3rd) and J. Chelameswar J (June 22nd) bringing the number of sitting Supreme Court judges to 22. Four more judges will retire in 2018 reducing the Supreme Court Judges to 18. The sanctioned strength of the Supreme Court is 31 judges.

Appointments: Indu Malhotra J appointed as Supreme Court Judge. She is the seventh women judge in the history of Supreme Court and the first one to be elevated from the bar. However, the turf war between Centre and the Supreme Court continued as Centre sent back K.M. Joseph J’s name for reconsideration. However, on May 11th, the Supreme Court Collegium unanimously agreed “in principle” to reiterate its recommendation to elevate Uttarakhand K M Joseph CJI as a Supreme Court Judge. However, the collegium is yet to resend its recommendation to the Law Ministry.

The government had returned Collegium’s recommendation of K.M. Joseph J citing lack of  “fair representation”, “regional diversity” and “comparative seniority”.

Dipak Misra CJI and Impeachment Motion: In an unprecedented event, an impeachment motion was initiated against the Dipak Misra CJI by Congress and six political parties in the Rajya Sabha. However, a controversy arose with Rajya Sabha Chairman rejecting the motion after consulting the constitutional experts. This was the first instance of MPs initiating an impeachment motion against a sitting Chief Justice.

Further drama followed as this rejection of impeachment motion by Mr. Venkaiah Naidu was challenged in the Supreme Court on May 8th. However, Mr. Kapil Sibal representing the 2 Congress MPs,  withdrew the petition citing “lack of transparency” in the constitution of the bench which was hearing the petition.

Judgments Reserved

Puttaswamy v UOI – On May 10th, the Supreme Court concluded hearings in Aadhaar Case, after hearing it for 38 days. This is the second longest hearing in the history of Supreme Court after Keshvanand Bharti Case, which was heard for 40 days.  The fate of Aadhaar which has enrolled 99% of citizens on Aadhaar database depends upon the decision of the 5 judge bench.

Shanti Bhushan v UOI :- The 2 judge bench of Ashok Bhushan and A.K. Sikri JJ had reserved its verdict on a petition filed by Mr. Shanti Bhushan, who questioned the CJI power as being Master of the Roster and wanted the case allocation to be decided either by the Collegium or the full court. During hearings, the Attorney General had argued that CJI being the master of the roster is in line with constitutional practices as well as court precedents. While the petitioner lawyers Mr. Dushyant Dave argued that sensitive cases which touch upon the “survival of the democracy” cannot be left to the discretion of the Chief Justice.

This issue came to light during the unprecedented Press-Conference in January where allegations were made by four senior judges that sensitive matters were being allocated to the selective benches while ignoring the senior judges.

Hearings

Maulana Ashhad v Mahant Suresh Das (Ayodhya Title Dispute) – The 3 judge bench continued to tussle with the question of forming a larger bench as it heard the case 6 times this session – March 14th, March 23rd, April 6th, April 27th, May 15th and May 17th.

During the course of the hearing, Mr. Rajeev Dhavan representing the Sunni Wakf Board made a strong plea on the need for a relook into Mohd Ismail Faruqui Case which had gone into comparative significance observing that “..mosque is not an essential part of religion in Islam and namaz can be offered anywhere, even in open”.

However, On April 27th, the counsels Mr. Salve and Parasaran representing Ram Lalla opposed the plea arguing that this case should be heard as a title dispute and religious and communal sensitivities should be kept out of the court. In last hearing, Mr. K. Parasaran argued that Ismail Faruqui Case was settled in 1994 and principles of res-judicata bars the court from reopening it by forming a larger bench. The next hearing is on July 6th.

Mohd. Salimullah v UOI (Rohingya Deportation Case) –  The 3 judge bench is hearing petitions filed by Rohingya Refugees against the Deportation order of the government. The court heard it 4 times this session – 7th March, 19th March,  9th April, 11th May. While broader examination of deportation policy are yet to be decided, the court has taken measures to ensure that Rohingya Refugees are not discriminated with respect to other refugees.

On 9th April, the SC had directed the Centre to file a comprehensive report on the conditions in the Rohingya Refugee Camps especially in states of Haryana, Rajasthan and Jammu and Kashmir. This is after Mr. Prashant Bhushan and Mr. Colin Gonsalves alleged inhuman treatment of Rohingya Refugees in camps.

On last hearing on May 11th, the government’s report on Rohingya Refugee Camps was examined and the Court appointed Sub- Divisional Magistrates (SDMs) of concerned States as nodal officers who can be approached if any facilities mentioned in the Government Report are denied to Rohingya. The matter will be heard next on 23rd August.

Judgments

Following are some of the landmark judgments delivered in this session.

Common Cause v UOI (March 9) – The Supreme Court was lauded for its judgment in Common Cause v UOI where it allowed passive euthanasia through living wills and advanced directives. The 5 judge bench held that the right to die with dignity is a fundamental right. It affirmed that an individual’s right to execute advanced directives or living wills is an assertion of one’s right to bodily integrity and self-determination. Post the 9 judge decision in Fundamental Right to Privacy case, this is amongst the first few judgments to apply the principles of dignity and bodily autonomy to a concrete factual matrix.

Kashinath Mahajan v State of Maharashtra (March 20)– The Supreme Court drew flak for its judgment in Kashinath Mahajan v State of Maharashtra. Emphasizing that “law should not result in caste hatred”, the Supreme Court diluted the provision of automatic registration of FIR and arrest on a complaint under the SC/ST (Prevention) of Atrocities Act, 1989. The bench comprising A.K. Goel and U.U. Lalit JJ held that there must be a preliminary inquiry before FIR registration, no automatic arrest on a complaint, and no mandatory denial of anticipatory bail.

The judgment has provoked outrage all over India, including a ‘Bharat Bandh’ leading to the death of 10 protestors. The Centre, as well as several State Governments,  filed review petitions in the Supreme Court against this judgment. However hearing the review petition, the 2 judge bench refused the Central Government plea to stay the March 20th judgment.

Shafin Jahan v KM Ashokan (April 9) – The SC gave a reasoned judgment in the Hadiya case. Launching a scathing attack on the Kerala High Court decision which had annulled Hadiya’s marriage to Shafin Jahan , the court held that Hadiya’s choice of faith and marriage fell within her core fundamental right and cannot be looked into by the court. It also held that Kerala High Court judgment went beyond its jurisdiction in ordering annulment of marriage while hearing a habeas corpus petition and the court was also wrong in exercising ‘Parens Partiae’ doctrine in deciding on her best interest.

Tehseen Poonawalla v UOI (April 19) – A three-judge bench headed by CJI dismissed the petition seeking a probe into the circumstances of the death of B.K. Loya J , who was hearing  Sohrabbudin Fake Encounter case. It made clear that the matter relating to the death of Loya J should be put to rest and no other court can entertain any petition relating to the matter. It also came down heavily on the petitioner’s lawyers – Prashant Bhushan, Dushyant Dave, Indira Jaising describing their submissions as “serious attempts to scandalize the judiciary” and attacking the credibility of the judges from the subordinate judiciary to Supreme Court. However, it fell short of initiating criminal contempt motion against the petitioners’ lawyers.

Kalpana Mehta v UOI (9th May) –  The 5 judge bench headed by CJI held that Parliamentary Standing Committee Reports (PSCRs) can be taken judicial notice of and regarded as admissible in evidence, but it can neither be impinged nor challenged nor its validity can be called in question.  The matter was heard in the context of two public interest litigations (PILs) filed by Kalpana Mehta and SAMA – Resource Group for Women and Health,  who were adverting to 89th PSCR on Health and Family Welfare, which had found massive lapses in clinical trials for Human Papilloma Virus (HPV) vaccines.

Lok Prahari v State of UP (May 7) – The Supreme Court struck down Section 4(3) of UP Ministers (Salaries, Allowances, and Miscellaneous Provisions) Act, which permitted former Chief Ministers to occupy government bungalows. The two-judge bench of Ranjan Gogoi and R. Bhanumathi JJ held the provision to be in violation of Right to Equality as “such law create a separate class”. The court observed that the legislative provision was arbitrary and discriminatory and needs to be struck down. This is the last judgment delivered by Chelameswar J before retirement.

G.Parmeshwara v UOI (May 18) – On the last working day of Session, the Supreme Court in its May 18th hearing advanced the floor test in Karnataka from 15 days to 4 days (May 19th). However, the substantial question of ‘scope’ and ‘judicial review’  of governor’s discretion will be decided later.

The court reopens on July 2 after the summer break and all eyes would be on how the court decides the Delhi Statehood and Aadhaar Case.