Monthly Review: April 2019

The month of April was a busy month for the Supreme Court, with both significant new cases coming up for hearing and key developments occurring in important cases, including the Rafale Deal. Pertinently, this month Chief Justice Mr. Ranjan Gogoi was accused of sexual harassment by a former junior staff member of the Court.

JUDGMENTS:

Rafale Fighter Jet Deal : The 3 Judge Bench of the Supreme Court comprising CJI Ranjan Gogoi, Justice Sanjay Kishan Kaul, and Justice K M Joseph rejected the preliminary objections raised by the Union of India to the petitions seeking review of the decision of the Bench delivered on December 14th 2018, where it had declined the plea for a court monitored investigation into the Rafale deal. Pursuant to this decision, the petitioners had approached the court seeking a review of the same and the Court had agreed to hear the arguments in the review petitions in open Court. However, at the very first instance of hearing, an objection was raised by the Attorney General stating that the documents relied upon by the petitioners were classified, privileged documents and cannot be considered as evidence as per Section 123 of the Indian Evidence Act. He had further argued that the documents are also protected under the Official Secrets Act (OSA) and requested the Court to remove them from the record. The Court had reserved its order on the limited issue of preliminary objections, and on April 10th, in two separate concurring opinions authored by CJI Gogoi and Justice Joseph, the Bench held that the classified documents could be placed on the record, dismissing the Union’s objection.

Narendra Modi Biopic Release: On March 20th 2019, the trailer of the film titled PM Narendra Modi was released. The film was scheduled for release on April 5th 2019. However, pursuant to the release of the trailer, a plea was filed before the Supreme Court by Congress leader Mr. Amit Panwar seeking a stay on the release of the film ahead of the upcoming General Elections, as the Model Code of Conduct was already in place. Though Mr. Amit Panwar’s plea was dismissed by a Bench headed by CJI Ranjan Gogoi, and the Court declined to interfere in the matter, on 10th April, the Election Commission of India passed an order in exercise of its powers under Article 324 of the Constitution and stalled the release of the film. It held that film cannot be released while the Model Code of Conduct is in operation. It clarified in its order that any biopic which serves the interests of a political entity has the potential to disturb the level playing field during elections. This order was subsequently challenged by the producers of the film and when the case came up for hearing before the Court, the Bench headed by CJI Gogoi directed the Election Commission to view the film and file its report regarding the same before the Court in a sealed cover. The Election Commission complied with the directions and upon perusing the report, the Court declined to interfere with the decision of the Commission which records that the film may only be released after the elections.

HEARINGS:

Tribunals and Finance Act: The Constitution Bench concluded the hearing in the Tribunals and Finance Act case. A 5 Judge Bench of the Supreme Court was assessing the constitutional validity of the legislation governing Tribunals. The Bench comprising Chief Justice Ranjan Gogoi and Justices Deepak Gupta, Sanjiv Khanna, D.Y. Chandrachud and N. V. Ramana heard the arguments advanced by the Petitioners who 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 issues that cannot qualify as purely fiscal measures (or as provisions enacted purely on financial considerations). 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 April 2nd.

Land Acquisition:  The Constitution Bench of the Supreme Court also briefly heard the Indore Development Authority Case. The Court will determine if the land acquired by a government agency can lapse when it fails to deposit compensation to the relevant land owner’s account or court. Additionally, the Court will decide if a Bench can invalidate a judgment of a prior Bench of the same strength. On April 2nd, the 5 Judge Bench comprising  Chief Justice Ranjan Gogoi and Justices Deepak Gupta, Sanjiv Khanna, D.Y. Chandrachud and N. V. Ramana granted time to the petitioner’s counsel to formulate the central questions at hand. The Case will be taken up for hearing once the Constitution Bench resumes sitting and this is likely to be once the Court reopens after the summer vacations in July.

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 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 to Court to disclose information pertaining both to the Collegium and the personal assets of Justices, among other things. The 5 Judge Bench presided by CJI Gogoi heard arguments in the matter over the course of two days on April 3rd and April 4th before reserving its judgment in the case. On behalf represented by the Attorney General, it was argued the independence of the judiciary is a basic feature of the Constitution and disclosure of information could restrict this independence. Mr. Prashant Bhushan on the other hand 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 scrutinized on a case by case basis and some information should not be made public.

Electoral Bonds: The Electoral Bonds Scheme notified by the Central Government on January 2nd 2018 is the subject matter of challenge in writ petitions filed by the CPI(M), the Association for Democratic Reforms, and Common Cause, all of whom have approached the Supreme Court asking it to assess whether the electoral bonds scheme in its current form facilitates anonymous corporate funding in Indian elections. Further, it will evaluate whether the legislation that introduced the scheme was wrongly certified as a finance act, so as to circumvent the Rajya Sabha. After 3 days of arguments by Mr. Prashant Bhushan, Mr. Raju Ramachandran and Mr. Rakesh Dwivedi, as well as the Attorney General, before a Bench of Chief Justice Ranjan Gogoi, Justice Deepak Gupta and Justice Sanjiv Khanna, the order was reserved in the case which has by virtue of its interim order of April 12th directed all political parties to submit to the Election Commission details of all bonds received until May 15th by May 30th 2019.

EWS Reservation: On January 9th 2019, the Parliament of India enacted the Constitution (One Hundred and Third Amendment) Act, 2019 and enabled the State to make reservations in higher education and matters of public employment on the basis of economic criteria alone. Subsequently, several writ petitions were filed challenging the constitutionality of the Constitution (One Hundred and Third Amendment) Act, 2019, which introduces reservations for Economically Weaker Sections (EWS). The case was taken up for hearing first by a Bench presided by the CJI but was subsequent listed before a 2 Judge Bench of Justice S A Bobde and Justice S Abdul Nazeer on April 8th. On the said date, the petitioners argued for a stay on the Amendment providing for 10% reservation for Economically Weaker Sections (EWS) in educational institutions and public employment. The prime objection was that implementing 10% EWS reservations will breach the 50% ceiling in reservations. The Bench however declined to stay the Amendment by stating that any appointment made now under the EWS provision would be subject to the outcome of the challenge. The case will now be heard on May 2nd.

VVPAT: The Chief Minister of Andhra Pradesh, Mr. Chandrababu Naidu, along with 20 other political parties of the Opposition approached the Supreme Court to direct the Election Commission (EC) to match 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 matching as 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 case was heard by the Court on two instances and it was in the second hearing that the Bench 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.

Assam’s National Register of Citizens: The  Supreme Court is regularly monitor 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 August 15th 1985 may be published. The case was heard twice in the month of April, first by a Bench of CJI Gogoi and Justice R F Nariman and then by a Bench comprising the CJI and Justices Deepak Gupta and Sanjiv Khanna. In the first instance, the case was listed owing to an application being filed which sought the Court to issue directions to ensure that affected families excluded from the 1st draft of the NRC are heard in their area of residence. Mr. Prateek Hajela, the State Coordinator for the NRC, informed the Court of the procedure for checking claims of objections filed by people excluded in the first NRC draft. Mr. Sibal on the other hand prayed for the use of video conferencing for verification. Though the Court did not pass any orders on the issue, it directed the State-Coordinator Prateek Hajela to take all steps to ease the difficulties faced by the residents in the NRC verification process and file a report before the next hearing on the steps taken in furtherance of the direction. In the second instance, an application for early hearing was filed, however the Bench declined to pass any orders noting that it was not possible to do so at this stage. the case is likely to be taken up for hearing on May 8th.

Sexual Harassment & the CJI: On Saturday, April 20th, an unprecedented special hearing was held in the Court of the Chief Justice of India, Mr. Ranjan Gogoi. This was in response to the letter addressed by a former junior staff of the Supreme Court to 22 Judges where she accused the CJI of sexual harassment. Justice Gogoi began by clarifying that he was denying the charges and was not sitting to preside over the matter which would be dealt with by the other 2 Judges, Justices Arun Misra and Sanjiv Khanna since he was the accused in the case. The other 2 Judges though declined to pass a judicial order and only issued an advisory to the media. Shortly after, lawyer Utsav Bains came forward alleging that allegations made by a former Junior Officer of the Court alleging sexual harassment by the Chief Justice of India are fabricated and motivated by a larger conspiracy to undermine the independence of the judiciary by corporate persons and corrupt political leaders. Pursuant to this, another 3 Judge Special Bench comprising Justice Arun Mishra, Rohinton Nariman and Deepak Gupta began hearing the matter. They issued notice to the lawyer Utsav Bains to appear in-person. On April 24th, Mr. Bains appeared in-person before the Court and submitted an affidavit in a sealed cover. Bains was accordingly present in Court on the next day when the Bench decided to meet with the Director of the CBI, the Chief of the Intelligence Bureau and the Commissioner of Police for Delhi before proceeding with the hearing in the case. The next day, on April 25th, the Bench directed retired Justice AK Patnaik to conduct an inquiry into the alleged conspiracy. While these proceedings were ongoing, a internal inquiry committee was also constituted by the Court which was to look into the allegations of sexual harassment against the CJI. Originally, the committee was to comprise of Justice Bobde, Justice Ramana, and Justice Indira Banerjee, but Justice Ramana recused himself and was replaced with Justice Indu Malhotra. The Commitee had issued notice to the complainant however as of April 30th the complainant chose to withdraw from the proceedings of the inquiry committee citing her reasons to do so in a press release.

Judicial Vacancies in Lower Courts:  The Supreme Court is currently monitoring steps taken by High Courts and State Governments to fill vacant judicial posts in the District and Subordinate Courts. On October 22nd 2018, a two-judge Bench comprising CJI Ranjan Gogoi and Justice SK Kaul took suo motu cognizance of the high number of judicial vacancies in the District (higher) and Subordinate Courts. On the previous date of hearing in February 2018, the Bench had heard amicus curiae Vijay Hansaria on the status of funding for judicial infrastructure by the Central and State Governments. Mr. Hansaria had proposed certain long-term and short-term measures to ensure adequate availability of funding and infrastructure as well as proper functioning of Courts. Taking the same on record, the Court had, among other things, directed the Central Government to release funds within two months to the extent Utilization Certificates have been sent by the respective State Governments and submit compliance report to the Supreme Court. Further, the State Government(s) were to submit pending utilization certificate(s) to the Central Government within four weeks and furnish information in the format annexed with the present order within a period of six weeks to this Court. The case was taken up for hearing by the Bench headed by the CJI on April 23rd and on the said date, the Court expressed its dissatisfaction with the response of the central government which failed to comply with the directions of the court as well as answer any of the questions that were raised by the Bench. CJI Gogoi further observed that the Central Government had treated the judicial arm of the State unfairly by not taking the necessary steps to ensure the availability of adequate infrastructure. He accordingly directed the Secretary of the Ministry of Law & Justice to correspond with Amicus Mr. Hansaria and provide the necessary information. The case was scheduled to be taken up for hearing after 2 weeks time.

ADJOURNMENTS:

Legality of the SC/ST Amendment Act: A 2 Judge Bench of Justice Arun Mishra and Justice Uday Umesh Lalit was scheduled to commence hearing final arguments in the case pertaining to the challenge to the SC/ST (Prevention of Atrocities) (Amendment), Act, 2018. In 2018, Parliament introduced Section 18A to overturn safeguards introduced by the Supreme Court in its Kashinath Mahajan judgment The three safeguards that were introduced were: (1) Conduct a preliminary enquiry prior to the registration of a First Incident Report (FIR); (2) Investigation officer must receive further approval prior to effectuating an arrest; and, (3) Grant anticipatory bail to any accused, notwithstanding any judgment or order or direction of any Court. The review petition in Kashinath Mahajan is also pending before the Court, along with these petitions. The hearing which was scheduled to commence on Tuesday April 30th was adjourned to Wednesday May 1st on the request of the counsel for the Union of India.

Rafale Fighter Jet Deal (Review): Subsequent to the judgment on April 10th (see above), the case was to be taken up for hearing on April 30th. However, the Attorney General appearing on behalf of the Union of India informed the Court that they had circulated a letter seeking an adjournment as the Union wanted 4 weeks time to file a counter affidavit in reply to the averments in the review petitions. The Court however only granted the Union time until Saturday May 4th to file any affidavits/replies and will take up the matter for consideration on May 6th.

OTHER DEVELOPMENTS:

2 new Judges recommended for appointment to the Supreme Court: The Supreme Court Collegium on April 12th recommended the elevation of Justice Aniruddha Bose, presently the Chief Justice of the Jharkhand High Court and Justice AS Bopanna, currently serving as the Chief Justice of the Gauhati High Court for appointment to the Supreme Court of India. The addition of these two Judges will bring the Bench strength of the Supreme Court to 29 against a sanctioned strength of 31 Judges.