2019 Spring Session Review

This is a review of the Supreme Court Spring Session from January 2 to March 15. The Supreme Court does not officially follow a session calendar. Nevertheless, for the sake of analysing performance, the SC Observer has divided the annual calendar into 4 sessions – Spring Session (January 2 – March 15), Summer Session (March 25 – May 12), Monsoon Session (July 1 – October 5) and Winter Session (October 14 – December 18).

The Session saw two new appointments to the Court and the retirement of the second senior most judge, Justice AK Sikri. There were specific hearings which attraced considerable attention. The biggest one was the Court referring the Ayodhya Dispute to mediation. It also received criticism for a February order, where it had ordered the eviction of lakhs of Scheduled Tribes and Forest Dwellers, whose claims for forest land were rejected under the Forest Rights Act, 2006. The order was subsequently stayed. In addition, the controversies surrounding Sabarimala and Rafale continued, as the Court heard multiple review petitions challenging the judgment.

This session review has been divided into 4 sections  – Decided Cases, Reserved Judgments, Hearings and Bench News.

Decided Cases

CBI vs CBI: On January 8th 2019, a 3 Judge Bench of the Court delivered its decision in the CBI Dispute and reinstated Mr. Alok Verma as the Director of the Bureau, pending a final decision by the Selection Committee. Subsequently, the Selection Committee comprising the Prime Minister, the Chief Justice of India’s nominee and the Leader of the Opposition met and  removed Mr. Verma as Director of the CBI.

Validity of Insolvency and  Bankruptcy Code (IBC) : A  2 Judge Bench of Justice RF Nariman and Justice Navin Sinha delivered the judgment upholding the Insolvency & Bankruptcy Code, 2016 in its entirety. The Code had been challenged on the ground that it was discriminatory to operational creditors as compared to financial creditors.

Maharashtra Bar Dancers: A 2 Judge Bench headed by Justice Sikri struck down provisions of a 2016 Maharashtra law that had laid down ‘virtually impossible conditions’ for running a dance bar. It quashed the provisions that had imposed a ban on serving aclohol where dances were staged, installation of CCTV cameras in dancing spaces and giving licenses only to people who have ‘good character’. The Court held the good character criteria to be ‘vague’ and installation of CCVTV cameras as violation of privacy.

Reserved Judgments/Orders:

Sabarimala Review Petitions: In a day long hearing on February 6th, the  Supreme Court heard over 50 review petitions seeking a review of the Court’s September 28th 2018 verdict. In its September 2018 verdict, the Supreme Court held as unconstitutional the Sabarimala Temple Entry custom of prohibiting women between the ages of 10 to 50 years from entering the inner shrine of the temple. One of the review petitioners’ main claims is that the original petitioners lacked the standing to move the Court on this matter, as the original petitoiners are not female Ayyappa devotees.

Rafale Review Petitions: On March 14th, a 3 Judge  Bench headed by Chief Justice R Gogoi reserved order on the petitions seeking a review of the Court’s December 2018 Rafale judgment. In its December judgment, the Government had declined the plea for a court monitored investigation into the Rafale Deal, emphasizing that the Court’s review jurisdiction is very restricted in national security matters.

The review petitioner Mr. Prashant Bhushan submitted that the Union Government had misled the Court by submitting factually incorrect information and, further, had actively suppressed material facts. In response, Attorney General KK Venugopal urged the court to dismiss the review petition on the ground that materials relied upon were confidential national security documents which were illegally obtained by the petitioners.

Hearings

Ayodhya: On March 8th, the five judge Constitution Bench delivered an order, referring the Ayodhya Title Dispute to mediation. The Mediation Panel comprises: Retired Justice FM Kalifulla (Chairman), Sri Sri Ravi Shankar and Senior Advocate Sriram Panchu. The mediation process is underway and has to be completed within 2 months.  The mediation order has recieved criticism from some sections because of presence of spiritual guru Sri Sri Ravi Shankar.

Eviction of Forest Dwellers: In 2008, Wildlife First and a series of other environmental organisations moved the Supreme Court to assess the constitutional validity of the Forest Rights Act (Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006). In 2014, the petitioners filed an interlocutory application, requesting the Court to order States to evict illegal forest dwellers. On February 13th 2019, the Supreme Court ordered States to evict all individuals who had their claims rejected under the Act by July 24th 2019. After a massive backlash by the Tribal population, the eviction order was challenged by the Central Government and the Ministry of Tribal Affairs. On February 28th, the Bench comprising Justices Arun Misra, Navin Sinha, and M R Shah stayed the operation of the eviction order. Further, it directed the states to file detailed affidavits furnishing details of the decision making process in rejecting the land claims of the affected forest dwellers..

Legality of SC/ST Amendment: In a February hearing, the petitioner Priya Sharma sought  a stay on the operation of the 2018 Amendment to SC/ST (Prevention of Atrocities) Act. It was pointed out that there cannot be review hearings in Kashinath Mahajan and a substantive challenge to the Amendment at the same time. The Bench headed by Chief Justice Gogoi declined to stay the Amendment and referred the matter to the Bench of Justices Lalit and Indu Malhotra. The matter has been posted for hearings on April 30th.

Assam’s National Register of Citizens: On February 5th, the Supreme Court held an important hearing in the NRC case where it rejected the Centre’s request of keeping the NRC process in abeyance in view of the Lok Sabha elections for 2019. Chief Justice Gogoi heading the Division Bench further stated that the NRC work must go on and the Central Government must cooperate. The Court directed Assam to deploy an adequate number of State Government officials, as indicated by the NRC Coordinator. Note that the Court has given a  deadline of July 31st 2019 for publishing the final NRC List.

Reservation for Economically Weaker Sections:  In March, a three Judge Bench heard several writ petitions challenging the constitutionality of the Constitution (One Hundred and Third Amendment) Act, 2019, which introduces reservations for Economically Weaker Sections (EWS). Specifically, it enables the State to make reservations in higher education and matters of public employment on the basis of economic criteria alone. The Constitutional Amendment has been challenged by a batch of petitions on several grounds including whether the addition of 10% reservations for EWSs in higher education and public employment is unconstitutional, as it breaches and exceeds the 50% limit for reservations as laid down in Indra Sawhney in 1993. The matter has been listed for April 8th to decide the bench strength and composition for the case.

Bench News

2 Judges Appointed: On January 18th, Justice Dinesh Maheshwari and Justice Sanjiv Khanna were elevated to the Supreme Court. Justice Maheshwari served as the Chief Justice of the High Court of Karnataka, starting in February 2018 and was previously the Chief Justice of the High Court of Meghalaya, having been appointed to the office in February 2016. Justice Khanna served as a Judge of the Delhi High Court, starting in February 2006. Previously, he was the Standing Counsel (Civil) for the National Capital Territory of Delhi. He will likely be appointed the Chief Justice of India in November 2024, following Justice DY Chandrachud.

Justice AK Sikri Retires: The second senior most judge of the Supreme Court retired on March 6th, 2019.  In his six year tenure as a Supreme Court judge, he had authored landmark verdicts such as Aadhaar,  Maharashtra Dance Bar Ban and Special Status of Delhi. A day before retiring, Justice Sikri was part of a 3 judge Bench that ordered the acquittal of six nomadic tribal men, who were earlier sentenced to death for rape and murder by a previous Supreme Court Bench. Justice Sikri’s Bench found serious glitches in the prosecution’s investigation.