Monthly Review: July 2018

July was an eventful month for the Supreme Court: the court formed constitution benches in many cases and heard Section 377 and Sabarimala  case on a day to day basis. The regular hearing in constitutional matters has bolstered its image as a constitutional court.

Special Status of Delhi , a landmark case on the issue of legislative and administrative federalism has put an end to the confusion on who is the executive head of the Delhi government. With appointment of Justice K.M. Joseph to the Supreme Court, the bitter contestation between Centre and the collegium ceased.

These key highlights of the court include:

Bench News

Retirement – Justice A.K. Goel retired on 6th July after serving in the Supreme Court for four years. His last year in the court was marked by controversial judgments: Rajesh Sharma, which introduced guidelines against automatic arrest under Section 498 A of IPC (provision dealing with cruelty to wives); Kashinath Mahajan , which introduced checks against automatic filing of FIRs and mechanical denial of anticipatory bail for accused under The Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

These judgments have had a long after life post his retirement. A larger bench of Supreme Court has agreed to relook into the correctness of Rajesh Sharma. The Centre and various States have filed a review petition against Kashinath Mahajan. He has also been in news for accepting the post retirement job as Chairman of the National Green Tribunal.

Three New Appointments –  On 4th August, the President of India appointed Madras High Court Chief Justice Indira Banerjee, Orissa High Court Chief Justice Vineet Saran and Uttarakhand High Court Chief Justice K.M. Joseph as judges of the Supreme Court.

 Judgments:

Special Status of Delhi (NCT v UOI) – On 4th July, the 5-judge bench of the Supreme Court unanimously held that the Chief Minister and not the Lieutenant Governor (LG) is the executive head of the Delhi government.

The court asserted that the executive power of Delhi government is co-extensive with the legislative power of the Delhi Assembly. Thus the LG is bound by the ‘aid and advice’ of the Council of Ministers on all matters where the Delhi Assembly has the power to make laws. This unanimous verdict in favour of the Delhi government will hopefully end the constitutional logjam, which was hampering the administration of Delhi for the last 3 years.

Cow Vigilantism (Tehseen Poonawalla v UOI) – The Supreme Court delivered its judgment in a writ petition filed by Tehseen Poonawalla against the growing menace of cow vigilantism.

Delivering a unanimous verdict, the three-judge bench came down heavily on the tendency of mob meting out justice. The Court observed that “no individual in his own capacity or as a part of the group can take law into his or their hands and deal with a person treating him as guilty.” The court issued a slew of guidelines to all State governments under Sections 153 and 295A of the Indian Penal Code, 1860.

Among various guidelines, the court directed the appointment of a nodal officer in each district to prevent incidents of mob lynching and cow vigilantism. The court also directed the Centre to frame a special law against lynching. The court will monitor the implementation of its guidelines. The next hearing is on August 20th.

 Constitution Bench Hearings

Constitutionality of Section 377 IPC (Navtej Johar v UOI) – The 5 judge bench of the Supreme Court heard the challenge to the constitutionality of Section 377, which criminalizes consensual sexual intercourse between same-sex individuals.

Surprisingly, the Centre through ASG Tushar Mehta did not take a position on Section 377; the Centre left it to the “wisdom of the court”. After hearing it for 4 days, the court reserved its verdict on July 17th.

Sabarimala Temple Entry  (Indian Young Lawyers Association v. UOI) – The 5 judge bench headed by CJI Dipak Misra heard arguments in the case. The court will determine if the religious custom, which prohibits the entry of menstrual women (between the ages of 10 and 50) into Sabarimala temple, violates their right to equality and freedom of religion.

The 7 days of hearings saw interesting arguments from both sides. While one of the petitioners’ counsels at one point argued that the customary exclusion is a form of untouchability prohibited under Article 17, one of the respondents’ counsels argued that the unique religious custom has its genesis in the special nature Lord Ayyappa, who is a “Nastik Bharamcharya”. The court has reserved its verdict on 1st August.

Ongoing Hearings:

Ayodhya Title Dispute (Maulana Ashhad v. Mahant Suresh Das) – After hearing the case thrice on 6th, 13th and 20th July, the court has reserved its order on referring the case to a constitution bench. Over the last several hearings, Mr. Rajeev Dhavan appearing for the petitioner has argued that a larger constitution bench should re-examine the correctness of Ismail Faruqui.

Ban on Female Genital Mutilation (Sunita Tiwari v. UOI) – The court heard the public interest litigation filed by Sunita Tiwari against the customary practice of Female Genital Mutilation practiced among Dawoodi Bohra community.

Parties opposed to this practice have argued that FGM is in violation of POCSO and IPC provisions. It has been criminalized in several countries, thus, it cannot be seen as an essential practice of Dawoodi Bohra community. The community argued that FGM is a core tenet of their religion and is protected under freedom of religion guaranteed by the Indian Constitution. The next hearing is on 9th August.

Assam Accord  (Assam Sanmilita Mahasangha v. UOI): The exclusion of 4 million people from the second list of National Register of Citizens (NRC) has sparked fear and anxiety amongst the Assamese residents. The Division bench of Justices Ranjan Gogoi and Rohinton Nariman who are monitoring the NRC process have directed the authorities to not initiate any immediate action against the 4 million people left out of the NRC.

Mr. K.K. Venugopal, the Attorney General responded that the Ministry is framing a ‘fair’ Standard Operating Procedure (SOP) to deal with claims of residents who have been left out of the Register. The court will hear it next on August 16.