Monthly Review: January 2019

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

The Court resumed work after the winter vacation on January 2nd and delivered the decision in the CBI Dispute within the first week. Further, 2 new Judges were appointed to the Court and hearings were also held in the Gujarat Encounters, Judicial Vacancies in Lower Courts and the Legality on the SC/ST Amendment cases. The SC adjourned the hearings in the Ayodhya Dispute and the Sabarimala Temple Entry cases.

Judgments: 

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. Earlier, the CVC had issued orders divesting Director Verma of his functions. The Court held that while the CVC has powers of superintendence over the CBI, there exists no statute, which grants the CVC the powers of interim action relating to suspensions or removal. It directed the Selection Committee comprising the Prime Minister, the Chief Justice of India and the Leader of the Opposition to rule within 1 week on whether Director Verma should be divested of his duties and functions. Days after the decision, Justice A K Sikri replaced the CJI on the Committee, which subsequently removed Mr. Verma as Director of the CBI

Validity of Insolvency and  Bankruptcy Code (IBC) : A 2 Judge Bench of Justice R F 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 as compared to financial creditors.

Maharashtra Bar Dancers: A 2 Judge Bench headed by Justice Sikri struck down provisions of a 2016 Maharashtra law which had laid down “virtually impossible conditions” for running a dance bar. It quashed the provisions which 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 violative of privacy.

Hearings 

Ayodhya Title Dispute: There were major developments in the Ayodhya dispute. First, CJI Gogoi adjourned the hearings, stating that an appropriate Bench would hear the case on January 10th. Subsequently, the Registrar issued a notification on 8th January, which stated that a Constitution Bench of 5 Judges would hear the matter on January 10th. On the said date, however, when the Bench comprising Chief Justice Ranjan Gogoi, Justice SA Bobde, Justice NV Ramana, Justice UU Lalit and Justice DY Chandrachud took up the matter, Justice Lalit recused himself and the CJI directed the matter to be listed on January 29th by when a new Bench would be formed. Even though a new Bench was notified, the case could not be taken up on 29th as Justice Bobde was on leave. The Court has not yet listed the next date of hearing.

Legality of the SC/ST Amendment Act of 2018: In August 2018, Parliament amended the SC/ST (Prevention of Atrocities) Act 1989, in effect nullifying the Supreme Court’s March 20th 2018 Dr. Subhash Kashinath Mahajan judgment. In Kashinath Mahajan, the Supreme Court introduced safeguards intended to prevent people from abusing the Prevention of Atrocities Act. Currently, the Court is entertaining both challenges to the parliamentary amendments and review petitions challenging Kashinath Mahajan. This month, January 2019, the Court declined a plea on two separate instances, requesting a stay of the Amendment Act of 2018 while the challenging the Amendment Act was pending before the Court. In the first instance on 24th January, a 3 Judge Bench comprising Justice AK Sikri, Justice Ashok Bhushan and Justice Abdul Nazeer rejected the plea. Further, it unusually directed the petitions challenging the validity of the amendment to be heard along with the review petitions challenging Subhash Kashinath Mahajan. Accordingly, the matter was mentioned before the CJI. On January 30th, a Bench comprising the CJI, Justice U U Lalit and Justice Indu Malhotra heard the case and also declined the plea for a stay of the Amendment Act. The SC has listed the case for final hearing on February 19th.

Gujarat Police Encounters: On January 9th, a 3 Judge Bench headed by CJI Ranjan Gogoi rejected the State of Gujarat’s objections against the final H S Bedi Committee. The H S Bedi reports pertain to the alleged fake encounters in the State of Gujarat, between the Gujarat Police and civilians from 2002 to 2006, which resulted in the death of civilians. The State of Gujarat had objected to the final report, contesting that it reflected only the views of Ret’d Justice H S Bedi and not those of the entire Committee. The Court rejected the objection after Ret’d Justice H S Bedi established that he had consulted the other Committee members before filing the final report. The Court directed a copy of the final report to be given to the petitioners and granted the parties time to file their objections to the report. The Court is likely to take up the matter in the first week of February.

Sabarimala Review Petitions: On 28th September 2018 a 5 Judge Bench of the Supreme Court had held that the ban on women between the ages of 10-50 years from entering the Sabarimala temple was unconstitutional. Subsequently over 49 review petitions were filed before the Court and in November, the Bench of agreed to hear all review petitions in open court on 22nd January 2018. However, the Bench of CJI R Gogoi and the four Justices from the Bench that delivered the 28th September judgment: Justice AM Khanwilkar, Justice R Nariman, Justice DY Chandrachud and Justice Indu Malhotra is yet to take up the review petitions for hearing as Justice Malhotra was on leave on January 22nd.

Judicial Vacancies in Lower Courts: The Supreme Court is currently monitoring the steps taken by the High Courts and State Governments to fill all vacant judicial posts in the District and Subordinate Courts. The Bench headed by the CJI heard the case twice in the month of January 2019. The Court first heard Amicus Curiae Mr. Vijay Hansaria, who had been appointed to make submissions on behalf of the State of Madhya Pradesh, the High Courts of Madras, Odisha, Patna and Punjab and Haryana. On the second occasion, the Bench heard Mr. K V Vishwanathan who made his submissions on behalf of the States on Karnataka and Kerala. The submissions are with regards to filling vacant posts and making available appropriate judicial infrastructure. The Court was not satisfied will all the submissions of the respective States. It has sought certain clarifications and will take up the case next on February 19th.

Other Developments 

103rd Constitutional Amendment challenged: 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. The amendment under Articles 15(6) and 16(6) enables the State to make special provisions for the advancement of any economically weaker section of citizens, including reservations in educational institutions and matters of public employment to a maximum limit of 10%, which is in addition to the existing reservations. The constitutional validity of the amendment has been challenged before the Supreme Court and a 2 Judge Bench headed by the CJI has issued notice in the matter.

2 New Judges Appointed to the Supreme Court: The Supreme Court Bench welcomed two new additions and Justice Dinesh Maheshwari and Justice Sanjiv Khanna were elevated to the Supreme Court on January 18th. 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.

Hearings to be scheduled in Article 35A Case: On January 22nd, CJI Ranjan Gogoi agreed to consider the case pertaining to the constitutionality of Article 35A in chambers and to decide the schedule for the listing of the same. Note that the Court will look at the validity of Article 35A of the Constitution of India, 1950 and Article 6 of the Constitution of Jammu and Kashmir, 1956.