Monthly Review: August 2018

August saw the Supreme Court reserving judgment in three big cases. These were the cases on adultery law, reservation in promotion and the criminalisation of politics. Besides that, the Court made significant progress in a case regarding the practice of female circumcision by the Dawoodi Bohra community.

The Court will make some major judgements in this coming month of September. CJI Dipak Misra is sitting on the Bench of ten important cases and he is retiring on 3rd October. Of particular note are the Aadhaar case, the Sabarimala case, the same-sex intercourse / Section 377 case and the challenge to adultery / Section 497 case.

Below are some highlights from August.

I. Reserved Judgements

Note, when the Court ‘reserves judgement’ on a case, the Court no longer hears oral arguments and moves towards making a judgement. Usually, with major cases, the Court takes a minimum of a couple of weeks before it announces its judgement.

(1) Adultery Case – The five-judge Bench headed by CJI Dipak Misra examined whether adultery, currently punishable under Section 497 of the Indian Penal Code, should be decriminalised. Note that the case focused on questions of decriminalising adulterous actions, rather than on questions of making Section 497 gender neutral. Currently only men are capable of adultery.

The petitioner, Joseph Shine argued that criminalising morality through Section 497 violates the constitutional rights to personal dignity and the autonomy of choice. Shine pointed out that adultery is already a ground for divorce and hence needs no further criminalisation. Shine argued that Section 497 invites the State to intervene on private matters of personal morality.

The State countered by arguing that retaining adultery as a crime is essential to protect the sanctity of marriage.

We predict that the Court is more likely to judge in favour of decriminalising adultery. Recall that the Court, in Puttaswamy, established the right to privacy as a fundamental right of the Constitution.

(2) Electoral Disqualification Case – In 2011, an NGO called the Public Interest Foundation filed a writ petition to expand the grounds for disqualifying candidates competing in elections. It asked the Court to disqualify candidates  from contesting elections if serious criminal charges are framed against them or if they filed false affidavits.

Under the Representation of Peoples Act, 1951 (RP Act), candidates are currently only disqualified if they are convicted of criminal charges. Under Section 8 of the Act, a candidate stands disqualified from the date of their conviction. Nothing in Section 8 deals with disqualification on the grounds of having charges framed against you.

After hearing the case for three days, the five-judge Constitution Bench reserved its judgment. The Centre, speaking through Attorney General K.K. Venugopal, has opposed adding further electoral disqualifications. Mr. Venugopal called for the Court to respect the principle of separation of powers, a basic feature of the Constitution. If the Court were to in practice alter the RP Act, it would in essence be extending beyond its judiciary function and performing a legislative action

Given the Bench’s remarks on separation of powers, we predict the Court will make very limited changes, if any, to electoral disqualification standards.

(3) Reservation in Promotion Case – On August 30th, the five-judge Bench reserved judgement on whether or not to review Nagaraj. In Nagaraj the Court upheld reservations for public posts attainable by promotion for SCs/STs as valid. Reservation in promotion is guaranteed by amendments to Article 16 of the Constitution: 16(4A), 16(4B). However, the Nagaraj Bench also set limits on reservation in promotion, requiring the State to adhere to three controlling conditions: showcasing backwardness, inadequate representation and not undermining administrative efficiency due to accelerated promotion.

The Centre and various States argued for reviewing Nagaraj. They contended that the three controlling conditions place unreasonable restrictions on the State’s aim of guaranteeing equal opportunity for SCs/STs. They stressed that the Constitution labels SCs/STs as perpetually backward and that therefore the first condition, requiring the State to demonstrate further backwardness, is superfluous.

The respondents argued that doing away with controlling factors will breach the ‘reasonability test’ inherent to the right to equality. For a reservation policy to be ‘reasonable’ it must be fair. The respondents argued that if one does away with the three controlling criteria, one risks elevating one group of people at the cost of harming another. They advocated for the principle of creamy layer exclusion.

II. Hearings

(1) Ban on FGM – The female genital mutilation (FGM) case saw three hearings this month. The parties arguing for the ban made three main claims. Firstly, they argued that FGM is a criminal act of sexual penetrative assault under the Protection of Children from Sexual Offences Act. Secondly, they argued that FGM inherently violates a female’s right to privacy and by extension dignity. Thirdly, they opposed the argument that FGM is protected by freedom of religion under Articles 25 and 26 of the Constitution, by pointing out the health complications caused by FGM.

Mr. A.M. Singhvi, representing members of the Dawoodi Bohra community opposing the ban, contended that the use of the phrase ‘female genital mutilation’ is inappropriate. He agreed that FGM is an inhumane practice, but argued that Dawoodi Bohras practice ‘female circumcision’. He pointed out that, as both females and males undergo circumcision, there is no discrimination against women. Finally, he argued that female circumcision is not only an essential religious practice for Dawoodi Bohras, but also belongs to a zone of privacy and autonomy that is beyond the State’s jurisdiction.

The court will next hear the case on September 6th.

(2) Cow Vigilantism – On August 20th, the Court heard a contempt petition against the Rajasthan Government for the Alwar lynching. The lynching happened days after the Supreme Court pronounced detailed directives to all State Governments, specifying how to tackle mob violence and lynching. In the directives, the Court asked all State Governments to submit a compliance report on institutional actions taken since the Court’s judgment on July 17th . The next hearing is on September 7th.

(3) Article 35A – The case did not see any progress despite being listed for hearing twice. The Court is considering the constitutional validity of Article 35A, which allows the State of Jammu and Kashmir to provide for special provisions for Permanent Residents. Article 35A is controversial as it was introduced into the Constitution by a 1954 Presidential Order, which was never ratified by Parliament.

In the last hearing on 31st August, the State of Jammu and Kashmir and the Union jointly sought a deferral of the hearing, citing the upcoming Panchayat polls. They feared the outbreak of social unrest in Kashmir.

The Court acceded to the request by posting the case for hearing in January 2019 after the conclusion of the Panchayat polls.

(4) Activists Arrest Case – The Court is also overseeing the procedure followed by the Pune Police in moving for arrests of five noted human right activists in connection with the Bhima Koragaon violence. The Police had sought the arrests under provisions in the controversial Unlawful Activities Prevention Act. The five activists are allegedly co-conspirators in an assassination attempt of Prime Minister Narendra Modi.

Shocked by the brazenness of police authorities and seeing it as a systematic plan to curb anti-government dissent, five noted intellectuals moved the Supreme Court against the arbitrary arrests. In the emergency hearing on 30th August, the Supreme Court has put the activists under house arrest instead of jail. The Court will continue hearing the case on 6th September.

 III. Judgment

Bir Singh v Delhi Jal Board – On August 30th, a five-judge Bench headed by Justice Ranjan Gogoi delivered its judgement. The question the Bench addressed was whether a SC/ST in one State could be considered a SC/ST in another State. Note that each individual State has a SC/ST list, which is independent from the Union SC/ST list. Members of the Union list are recognized as backward across all of India.

The Bench ruled that a member of an SC/ST community in one State, cannot inherently carry the same status upon migrating to another State. Thus the Court ruled that reservations intended for a State specific SC/ST, are confined to the geographical territory of the said State.

The Court recognized that there are SCs/STs, which get the benefit of reservation throughout the territory of India. For such SCs/STs, the Court nullified the phrase “in relation to that State” used in Articles 341  and 342.

IV. Court News

(1) Scrapping Social Media Hub Plan – Amidst concerns of privacy violation and charges of State Surveillance, the government has scrapped its plan of creating a “Social Media Communication Hub”.

The hub was conceptualized as an institutional response to address the spate of fake news, paid and motivated content circulating on mobile apps and social media. It was supposed to be made operational at the District level to monitor social media content.

Filing a petition, Mahua Moitra contended that the proposed Hub would violate the right to privacy guaranteed under Article 21 and turn India into a Surveillance State. After a huge outcry against the proposed plan, Attorney General K.K. Venugopal told the bench headed by CJI Dipak Misra that the government had shelved its plan for the time being.

(2) Law Commission Recommends Simultaneous Polls – On August 30th , the Law Commission (LC) came out with its draft recommendations in favour of conducting simultaneous Polls for Lok Sabha and State Assemblies. The LC concluded that simultaneous elections will allow the government’s to focus on governance rather than electioneering. Further, the LC concluded that simultaneous elections will reduce government expenditure.

The issue has proved to be a bone of contention between the NDA and the opposition. While the BJP supports simultaneous polls, opposition parties spearheaded by Congress, oppose them on the principle of federalism.