2019 Summer Session Review

This is a review of the Supreme Court Summer Session from March 25 to May 12. 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).

This short 47 day session was eventful. Apart from delivering important judgments on the admissibility of evidence in Rafale and Consequential Seniority for SC/STs, the Court also responded to disputes arising out of the general elections – increasing VVPAT matching, nudging the Election Commission to enforce the Model Code of Conduct  (MCC), assess the Electoral Bonds scheme, stalling the release of a political biopic, etc. Other major developments pertained to Ayodhya and NRC.  While the Court allowed for an extension in the Ayodhya mediation, it refused to extend NRC deadline beyond 30th July. Further, the Court concluded hearings on 3 review petitions – Sabarimala, Rafale & Dilution of SC/ST (Prevention of Atrocity) Act & judgments are expected in the next session. Lastly, during the end of session, the Court was jolted by allegations of sexual harassment against CJI Gogoi by a junior court staff member. The In-House Committee investigating sexual harassment allegations dismissed the junior staff’s claim.

The Session Review is divided into 4 parts:- Bench News, Judgments, Reserved Judgments & Hearings.

Bench News

1) 4 Collegium Recommendations – On 8th May, the Supreme Court’s Collegium issued 2 resolutions, recommending four judges for elevation to the Supreme Court.

1. Reiteration of recommendations: the Collegium reiterated its recommendation for elevating Justices Aniruddha Bose and AS Bopanna. On 7th May, the Union Government had opposed their elevation.
2. New recommendations: the Collegium recommended Justices Bhushan Ramkrishna Gavai and Surya Kant for elevation.

The Supreme Court would function at its sanctioned strength of 31, if the elevations come through

2) In-House Panel Committee – The 3 member In-House Committee looking into allegations of sexual harassment on CJI Gogoi found “no substance”  in the former Supreme Court staff allegations. The Committee did not make public its report, citing a 2003 Supreme Court judgment.

Judgments

1) Narendra Modi Biopic –  On 26th April, a 3 Judge Bench of the Supreme Court stated that it would not interfere with the Election Commission’s order, stalling the release of Vivek Oberoi’s PM Modi biopic.  On 10th April , the Election Commission stalled the release of the film and all promotional content, citing the Model Code of Conduct (MCC).

2) VVPAT – Mr. Chandrababu Naidu, along with 20 other political parties of the Opposition approached the Supreme Court to direct the Election Commission (EC) to verify a higher number of Voter Verified Paper Audit Trail (VVPAT) slips.  The Court was to assess how many poll booths should undergo Voter Verified Paper Audit Trail (VVPAT) slip verification. The petitioners sought for verification of 50% VVPAT slips in each constituency. The Election Commission however objected to the same submitting that if 50% VVPAT slips were double-counted, this would delay the announcement of results by at least 6 days. The Court ordered the Election Commission (EC) to increase the number of Voter Verified Paper Audit Trail (VVPAT) slips that are physically verified, from 1 booth to 5 per Assembly Segment. Later on, it rejected a review petition filed to further increase VVPAT Verification.

3) Rafale Judgment on Classified Documents – The 3 Judge Bench of the Supreme Court rejected the preliminary objections raised by the Union of India in the review hearings. The Court  held that the classified documents published by various newspapers  could be placed on the record. Subsequent to its judgment, the Court continued to hear the review petitions challenging the Court’s December 14th, 2018 judgment, where it had declined the plea for a court monitored investigation into the Rafale deal.

4) Consequential Seniority  –   On 10th May, the Division Bench of Supreme Court upheld the constitutional validity of a 2018 Karnataka Law which provided ‘consequential seniority’ to government servants promoted through reservation. The law protected consequential seniority from 1978. Consequential Seniority means that if a reserved category candidate is promoted before a senior non-reserved candidate because of reservation in promotion,  then for subsequent promotion the reserved candidate will be taken to be senior to the non-reserved category. The Supreme Court earlier had quashed the law for failure of the State to gather data as per the directions in Nagaraj. The 2006 Nagaraj case had allowed reservation in promotion provided the States gather data to demonstrate (a) the backwardness of the group, (b) inadequate representation in employment and (c) maintenance of administrative efficiency.  The Committee submitted a report favouring the need for consequential seniority and the SC upheld it. This is one of the very few  cases post Nagaraj, where the SC has validated reservation in promotion policies upon assessing government data.

Judgment Reserved

1) 3 Review Judgments Reserved – Review Hearings have concluded in 3 big cases – Sabarimala, SC/ST (Prevention of Atrocity) and the Rafale Jet Deal. Sabarimala was reserved in February after hearing over 50 Review petitions that challenged the judgment that allowed women in menstruating age group to enter Sabarimala temple.

A curious review innovation was seen in SC/ST Case where the review hearings in Kashinath Mahajan were clubbed with substantive challenge to Amendment  of SC/ST [PoA] Act which was brought to nullify Kashinath Mahajan.

The Court heard review against the Rafale Judgment of December 2018. Mr. Prashant Bhushan , the review petitioners sought a review of the judgment on two counts: first, the December 2018 Judgment of the Court did not take into consideration one of the main prayers of the petitioners,  a court-monitored criminal investigation and secondly, the Judgment relies on factual errors and the Government misrepresented facts.

2) Judgment Reserved in 2 Constitution Bench Cases  – The 5 Judge Bench headed by the CJI reserved judgment in Tribunals & Finance Act  & RTI & Judicial Independence.

In Tribunals & Finance Act,  the Supreme Court was assessing the constitutional validity of the legislation governing Tribunals. The Petitioners argued that the passage of the Finance Act could not have been passed as a Money Bill, for Part XIV of the Act deals with Tribunal composition and cannot qualify as purely a fiscal measure. This was countered by the Government on the ground that salaries and pensions from tribunals legitimately make the Finance Bill 2017, a money bill under Article 110. Further, as per Article 266 of the Constitution all revenues to the Government of India go to the Consolidated Fund of India. The respondents relied on the 5 Judge Bench decision in the Aadhaar Case to substantiate their arguments before the Bench which reserved its judgment in the case on 2nd April.

RTI & Judicial Independence: Another case in which the Constitution bench concluded hearing arguments was the one where 5 Judges of the Supreme Court have been called to decide whether the Supreme Court falls under the Right to Information (RTI) Act. Can information regarding judicial appointments and transfers be disclosed to the public? This is in view of an appeal to the orders issued by the Central Information Commission (CIC) in 2009, requiring the Central Public Information Officer of the Supreme Court to disclose information. The CIC directed the Court to disclose information pertaining both to the Collegium and the personal assets of Justices, among other things.

The Supreme Court  was represented by the Attorney General who argued  that the independence of the judiciary is a basic feature of the Constitution and disclosure of information could restrict this independence. On the other hand, Mr. Prashant Bhushan  representing the  petitioner argued that that it would be in the larger public interest to disclose the requested information and the Court should be subject to RTI requests, but they should be scrutinised on a case by case basis and some information should not be made public

Hearings

1) Ayodhya Title Dispute – On 8th May, the Supreme Court accepted the mediation panel’s request for a time extension. The Court extended the mediation period until 15th August 2019. The mediation panel also submitted an interim report, whose contents shall remain confidential at this stage.
Two months earlier, the Court had ordered the parties to engage in mediation. They had granted the parties 8 weeks to do so and appointed a mediation panel comprising retired Justice Kalifulla, Sri Sri Ravi Shankar and Senior Advocate Sriram Panchu. The panel was ordered to submit an interim report after 4 weeks and final report at the end. The mediation period was supposed to end on 10th May.

2) Electoral Bond – On 12th April, the Supreme Court passed an interim order, directing all political parties to submit to the Election Commission details of all bonds received until 15 May by 30th May. The parties are to to disclose the donations, donors’ identity and bank account details in a “sealed cover”  to the Election Commission. The Court directed the Finance Ministry to alter its notification, which granted 5 extra days for purchasing electoral bonds.  The Court did not place a stay on the electoral bonds scheme.

Note that the Court is yet to evaluate if the legislation that introduced the scheme was wrongly passed as Finance Act, so as to circumvent the Rajya Sabha.

3) Assam’s National Register for Citizens – The Division bench of CJI Gogoi & Justice Nariman regularly monitored the inclusion and exclusion of individuals in the updated National Register for Citizens of Assam so as to ensure that the NRC as mandated by the Assam Accord of 15th August 1985 may be published.  In multiple hearings in March, April & May, the Court refused to extend the deadline of 31st July for NRC Publication. And in the last hearing in May, the Court directed the Assam State Co-ordinator for NRC Prateek Hajela to approach the Vacation Bench if the need arises.

4) Sexual harassment & CJI –  A 3 Judge Special Bench of the Supreme Court heard whether the allegations of sexual harassment against the CJI are a part of a larger conspiracy by corporates and corrupt political leaders against the office of the Chief Justice of India. The Bench comprises Justices Arun Misra, Rohinton Nariman and Deepak Gupta. The Court heard the matter 3 times – on 23rd, 24th  & 25th April before directing Retired Justice AK Patnaik to conduct an inquiry into the conspiracy allegations. He will receive assistance from the Director of the CBI, the Chief of the IB and the Commissioner of the Delhi Police.