Monthly Review: March 2018

March was an eventful month for the Supreme Court. We saw three key judgments delivered, while the cracks within the Supreme Court became visible on more than one occasion. March also saw progress on some crucial ongoing cases. These are the key highlights:

Appointments

Justice Amitava Roy retired on March 1st, bringing the number of sitting Supreme Court judges to 23. Six more judges will retire in 2018. This will reduce the number of Supreme Court judges to 17. The sanctioned strength of the Supreme Court is 31 judges.

On March 21st, Justice Chelameshwar shot an open letter to Chief Justice Dipak Misra. He highlighted his concern over executive interference in appointments to the higher judiciary. The latest controversy over judicial appointments arose as the Law Ministry stalled Justice P. Krishna Bhat’s elevation despite the recommendation by the Supreme Court Collegium. He was first recommended by the Supreme Court Collegium in August 2016. In April 2017, the Collegium recommended his name once more. The Law Ministry forwarded a civil complaint against Justice Bhat. The current Chief Justice of Karnataka High Court, Justice Maheshwari, reopened the inquiry against Bhat in February, without first referring the matter to the Chief Justice of India.
Justice Chelameswar described the Karnataka Chief Justice’s conduct as ‘more loyal than the king’ and cautioned that the bonhomie between the judiciary and the government would be the death knell to democracy.

Hearings

The Supreme Court continued hearing arguments in the Aadhaar Act case. With the petitioners concluding their arguments, the court began hearing the Union’s argument in favour of the Aadhaar regime. This case has had 22 days of hearing until March 30th. On March 13th, the court passed an interim order extending the Aadhaar-linking deadline until the judgment is passed. However, it drew a distinction between non-benefit services like bank accounts and mobile numbers and benefits under Section 7 of the Aadhaar Act. The deadline of March 31st remained as is, for subsidies and basic entitlements.

The Ayodhya Title Dispute Case was also heard on March 14th and 23rd. Dr. Rajeev Dhavan argued that the Ismail Faruqui case which held that Mosque is not an essential feature of Islam, needs to be revisited by a higher bench. The bench in the next hearing might constitute a larger bench to relook at the correctness of Ismail Faruqui. The case will be heard next on April 7th.

The Rohingya Deportation case was also heard on March 7th and 19th. The arguments focuses on the interim application filed by Prashant Bhushan where he demanded that Rohingya Children be given access to basic education and health facilities and treatment at par with Tamil Sri Lankan Refugees. The Union of India, on March 19th, clarified that it has not used chilli sprays and stun grenades to deter refugees from entering the country; that parity with Sri Lankan Tamil Refugees is not possible as there is no agreement with Myanmar similar to the India-Ceylon Agreement of 1964; and that deportation is a policy prerogative which cannot be decided by the court. The next hearing is on April 9th 2018.

Judgements

The Supreme Court was lauded for its judgment in Common Cause v UOI where it allowed passive euthanasia through living wills and advanced directives. The five-judge bench held that the right to die with dignity is a fundamental right. It affirmed that an individual’s right to execute advanced directives or living wills is an assertion of one’s right to bodily integrity and self-determination. Post the 9 judge decision in Fundamental Right to Privacy case, this is amongst the first few judgments to apply the principles of dignity and bodily autonomy to a concrete factual matrix.

The Supreme Court drew flak for its judgment in Kashinath Mahajan v State of Maharashtra. Emphasizing that “law should not result in caste hatred”, the Supreme Court diluted the provision of automatic registration of FIR and arrest on a complaint under the SC/ST (Prevention) of Atrocities Act, 1989. The bench comprising Justices A.K. Goel and U.U. Lalit held that there must be a preliminary enquiry before FIR registration, no automatic arrest on a complaint, and no mandatory denial of anticipatory bail. The judgment has provoked outrage all over India, including a ‘Bharat Bandh’ leading to the death of 10 protestors. The Centre, as well as several State Governments, have filed review petitions in the Supreme Court against this judgement.

On March 8th, the Supreme Court reinstated Ms Hadiya’s right by overruling the Kerala HC judgment which had annulled her marriage to Shafin Jahan. The Court reiterated that a person’s choice of partner falls within their core fundamental right and cannot be scrutinised by a court.