Monthly Review: January 2020

Since re-opening after its winter vacation on 6 January, the Supreme Court has heard several highly politicized cases, including the Sabarimala referral, Article 370 and Citizenship Amendment Act (CAA) matters. While the Court dedicated full hearings to these matters, most of these hearings were limited to resolving preliminary procedural issues. In Article 370, the Court reserved judgment on whether to refer the petitions to a larger bench. In CAA, it gave the Union another four weeks to file its reply, as it hadn’t been served with all the petitions. More below:

PROCEDURAL DEVELOPMENTS

Sabarimala Referral: The present referral arose in the course of the review of its 2018 judgment by the Supreme Court. In 2018, the Court had held that the Sabarimala Temple’s custom of excluding women of a ‘menstruating age’ is unconstitutional. In November last year, the Bench hearing the review petitions against the 2018 judgment, held that it could not offer a ruling on these petitions, until certain overarching constitutional questions were resolved first. These questions pertain to the fundamental right to freedom of religion and its relation to other fundamental rights. It then referred such questions to a larger bench.

This month, a nine-judge Bench led by the Chief Justice began hearing the referral questions. Given the broad nature of the questions at stake, it directed the counsels to reframe the issues more narrowly. It directed them to convene on 17 January to sharpen the issues and decide which counsel will argue on which issue. The Bench stressed that the counsels should not repeat arguments.

The counsels were unable to reach any consensus on 17 January. The Bench then decided to list the matter for the first week of February for hearing, after which point in time it will re-frame the issues itself.

Article 370: The Supreme Court is deciding the constitutionality of the Presidential Orders that did away with Jammu and Kashmir’s (J&K) special constitutional status under Article 370 of the Indian Constitution. Over 20 petitions have been filed challenging the Orders. The petitioners contend that only the J&K Constituent Assembly (CA) could have recommended the abrogation of Article 370.

Before the Court decides the constitutionality of the Presidential Orders, it will decide whether the case should be referred to a larger bench. A reference is usually necessitated when a bench is confronted with a question which has received contradictory responses from earlier benches of the same strength. In this instance, Senior Advocates Dinesh Dwivedi and Sanjay Parikh argue that the issue of whether Presidential Orders are subject to the approval of the J&K CA has received contradictory responses in Prem Nath Kaul and Sampat Prakash. On 23 January, the Court reserved order on the question of referral.

POSTPONEMENTS

Citizenship Amendment Act: On 22 January, the Court briefly heard the petitions challenging the Citizenship (Amendment) Act, 2019 (‘CAA’). Several counsels for the petitioners requested the Court to issue an interim stay on the operation of the Act. They contended that if the CAA is implemented while the case is pending, irreversible changes may be brought about, which no judgment could subsequently undo. The Court declined the request.

Instead, it granted the Union an additional four weeks to file its reply. The Union explained that it had only been served with roughly 60 of the around 140 petitions pending. It submitted that, therefore, its affidavit could only be considered a ‘preliminary reply’.

Electoral Bonds: The electoral bonds scheme is currently under challenge before the Supreme Court. The scheme allows individuals and corporations incorporated in India to donate to political parties via ‘electoral bonds’. The petitioners contend that the scheme does not make electoral funding more transparent and disproportionally favors the political party in power.

During the 2019 Lok Sabha Elections, the Supreme Court directed all political parties to submit the details of all bonds received to the Election Commission (EC). These details included the value of donations, identity of donors and bank account details.

In the last two months, the Court has begun to hear the matter again. The petitioner, the Association for Democratic Reforms, filed an application (I.A. 183625/2019) seeking a stay on the scheme. In a brief hearing on 20 January, the Court said it would examine the application once the EC files its reply to the application. On 30 January, the EC filed its reply. The next date of hearing is yet to be set.

Azam Khan: Another important case which has been pushed back is the Azam Khan matter. The Court is examining whether the fundamental right to freedom of speech can be restricted by other fundamental rights, such as the right to dignity. Further, it is determining whether Ministers, in making public statements, have a more restricted right to free speech and expression.

This month, the Court heard Sr. Adv. Dhavan and Additional Solicitor General Madhavi Divan on whether there is a need for the Court to frame guidelines on these issues, in the absence of legislation. On 22 January, the Court adjourned the matter until the Attorney General himself became available to make submissions. Given that the Sabarimala, Article 370 and CAA matters are currently before the Court, it is unlikely this matter will be heard in February.

OTHER DEVELOPMENTS

Access to internet connected to free speech and expression: On 10 January, a Bench comprising Justices N.V. Ramana, Subhash Reddy and B.R. Gavai ordered the Union to review all restrictions on communications imposed in Jammu and Kashmir. In doing so, it observed, ‘the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g)’.

This judgment establishes that the internet serves as an important medium through which the fundamental rights to free expression and occupation may be enacted. In theory, this should set the threshold for imposing internet bans higher. However, whether this happens in practice, may require the Court to further develop its jurisprudence on the issue.

(Understand the judgment by reading the Indian Express’s coverage)

State of Kerala files petition challenging CAA: On 14 January, Kerala became the first the State to challenge the Citizenship (Amendment) Act, 2019 (CAA). Unlike the other petitions challenging the CAA, Kerala’s petition revolves around issues of federalism. Can a State resist implementing a central law, which it finds unconstitutional?

Kerala filed its petition under Article 131 of the Constitution, which vests the Supreme Court with original jurisdiction over disputes between a State and the Union. Whether a State can challenge the constitutionality of a central legislation under Article 131 remains an open question. As such, the Court may choose to hear this petition separately from the other petitions.