Monthly Review: February 2019

There were significant developments in the Supreme Court in February 2019.

The Court made certain important directions in the Judicial Vacancies in Lower Courts case and also decided the final schedule  for hearing in the Legality of the SC/ST Amendment case. The SC also had important hearings in the Ayodhya Title Dispute and the Sabarimala Review. Referrals to larger benches were made in the AMU Minority Status case as well as the case on the Special Status of Delhi with respect to control over services. The month of February also witnessed key new challenges being placed before the Court.

Hearings

Assam’s National Register of Citizens: On February 5th, the Supreme Court held an important hearing in the NRC case. The Attorney General of India argued before the Court that the NRC process be kept in abeyance in view of the upcoming General Elections to the Lok Sabha for 2019. CJI Gogoi expressed his dissatisfaction with the conduct of the Home Ministry observing that it appeared not be committed to seeing through the NRC project. Justice Gogoi 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. Further, CJI Gogoi requested the Election Commission of India to consider the matter keeping in mind the updation of the NRC, which is set to be completed by 31.07.2019.

Sabarimala Review Petitions: In a day long hearing, the 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. The Bench comprising CJI R Gogoi and the four Justices from the Bench that delivered the September 28th judgment (Justice AM Khanwilkar, Justice R Nariman, Justice DY Chandrachud and Justice I Malhotra) first heard arguments on behalf of the review petitioners and then those opposing a review, before it reserved the matter for judgement.

Legality of the SC/ST Amendment: A 2 Judge Bench comprising Justices UU Lalit and Indu Malhotra decided to hear the challenge to the the 2018 Amendment to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act for final arguments over the course of 3 days starting March 26th 2019.In the previous hearing, the petitioner Priya Sharma sought for a stay on the operation of the 2018 Amendment. It was pointed out that there cannot be review hearings in Subhash 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 Justice Lalit, who had authored the decision in Subhash kashinath Mahajan.

Judicial Vacancies in Lower Courts: The Supreme Court is monitoring steps taken by High Courts and State Governments to fill vacant judicial posts in the District and Subordinate Courts. The case was heard by the Court on two separate occasions.  First, the Court heard the response of Mr. K V Vishwanathan with respect to the States of Kerala and Karnataka to the clarifications sought with respect to availability of Court halls in the former and he breakup of the vacancies for reserved categories, more specifically whether the reservation for women, PH category etc. in the latter. The Court also heard the submissions made by Mr. Gaurav Agarwal who is assisting the court as Amicus for the States of Rajasthan, Sikkim, Telangana, Andhra Pradesh, Tripura and Uttarakhand made his submissions with respect to the status of both vacancies as well as availability of infrastructure in these States. On the second occassion, the Bench heard Mr. Vijay Hansaria on the status of funding for judicial infrastructure by the Central and State Governments and issued certain directions to the Central Government on the aspect of release of funds.

Ayodhya Title Dispute: Pursuant to the hearing dated 10th January 2019 when Justice UU Lalit recused himself from the freshly constituted Constitution Bench, citing a conflict of interest, A 5 Judge Constitution Bench comprising Chief Justice Gogoi and Justices SA Bobde, DY Chandrachud, Ashok Bhushan and Abdul Nazeer of the Supreme Court  was re-constituted to hear the appeal to the 2010 Allahabad High Court judgement, which divided the Ayodhya title equally between three parties: the Sunni Wakf Board, the Nirmohi Akhara and Lord Ram represented by the Hindu Maha Sabha. The Bench on February 26th adjourned the matter for 8 weeks, in order to give the parties time to review translations of submitted documents. Further, it suggested that a “Court appointed and Court monitored” mediation could begin to take place in the interim period, before the next hearing on March 5th.

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  v2019, the Supreme Court ordered States to evict all individuals who had their claims rejected under the Act by July 24th 2019. This order of eviction has been challenged by the Central Government, the Ministry of Tribal Affairs. On February 28th, the Bench comprising Justices Arun Misra, Navin Sinha, and M R Shah took note of the submissions that  in the case of several claimants speaking orders had not been given for rejecting the claims and further, that most of them may not even possess the requisite documents. It stayed the operation of the eviction order of February 13th and directed the states to file detailed affidavits  furnishing information as to whether the rejections were made after following due process, if there was adequate communication with the evictees at all stages.

Review Petitions

Rafale Fighter Jet Deal: On December 14th last year, a 3 Judge Bench of the Supreme Court delivered its decision declining the plea to order a court monitored investigation of the Rafale Fighter Jet Deal, where the Central government purchased 36 Dassault Rafale fighter jets. The Petitioners then moved the Court seeking review of the judgement of the Court and on 21st Feburary  the Court agreed to hear a review petition filed by Yashwant Sinha, Arun Shourie and Prashant Bhushan, where they alleged that the foundation of the decision rested on incorrect factual claims made the government and hence needed review. On February 26th, the Bench of CJI Ranjan Gogoi, Justices Sanjay Kishan Kaul & K.M. Joseph agreed to hear the Review in open court, though no date was fixed for the same.

Cases Referred to Larger Benches

AMU Minority Status: The Supreme Court on Feburary 12th, 2019 referred the issue of AMU’s (Aligarh Muslim University) status as a Minority Instution to a 7 judge Constitution Bench. A 3 Judge bench comprising CJI Ranjan Gogoi, Justices Nageshwar Rao and Sanjeev Khanna referred the matter to a larger Bench which will will deliberate on the parameters for granting minority stautus to an educational institution under Article 30 of the Constitution. The case will determine whether Aligarh Muslim University (AMU) will be able to retain its status as a Minority Instution.

Delhi Government vs Administration of NCT of Delhi: On July 4th 2018, the five-judge Bench unanimously held that the Chief Minister and not the Lieutenant Governor (LG) is the executive head of the National Capital Territory (NCT) government. The bench directed that the individual appeals filed as part of the tussle for power between the Central and State Governments for administrative control over the administration of Delhi woud be heard by a 2 Judge Bench. On February 14th 2019, a 2 Judge Bench comprising Justice A K Sikri and Justice Ashok Bhushan delivered its judgmemt in the individual appeals. The Bench had differeing opinions on one aspect: the control over services, more specifically those in any Entry either in List II or in List III. The case has now been referred to a larger Bench with respect to this limited issue.

New Cases Before the Court

Reservations for Economically Weaker Sections: 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. Articles 15 and 16 have been amended by virtue of the Act, which received the presidential assent on January 12th 2019. Several writ petitions have subsequently been filed to challenge the constitutionality of the Amendment Act, 2019, which introduces reservations for Economically Weaker Sections (EWS). The Court on February 8th tagged all the cases together and requested that the same be placed before the Bench for urgent hearing.