Monthly Review: September 2019

JUDGMENTS

Subhash Kashinath Mahajan Review Petition: In 2018, the Supreme Court of India in Subhash Kashinath Mahajan issued certain directions in relation to registering FIRs and making arrests under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Act). The directions, among other things, mandated that a preliminary enquiry be conducted before the registration of FIRs and approval be obtained from the appointing authority before arresting a public servant. The Union of India immediately moved the Court to review the directions in Subhash Kashinath Mahajan. Moreover, the Parliament also passed a set of amendments to offset the effect of the directions.

On October 1st 2019, a 3-judge Supreme Court Bench comprising Arun Mishra, M.R. Shah and B.R. Gavai JJ passed its judgment in the review petitions. Through its judgment, the Court has now recalled these directions. In doing so, it noted that the directions created an unequal legal regime by making it more onerous to register FIRs and effect arrests for offences against the Scheduled Caste and Scheduled Tribe communities. Other than the inequality perpetuated by the directions, the judgment also pointed out that the directions transgressed into the realm of policy making. Given the lack of ambiguity in the provisions of the Act, the invocation of extraordinary powers under Article 142 by the court in Subhash Kashinath Mahajan to issue the directions were uncalled for, observed the Court.

The judgment in the review petition has made the challenges to the constitutional validity of 2018 amendments redundant, as the court has now nullified the Subhash Kashinath Mahajan directions, something which the amendments also sought to do.

HEARINGS

Ayodhya Title Dispute: September was a busy month in the Ayodhya title dispute hearings. It saw Sr. Adv. Rajeev Dhavan, Sr. Adv. Zafaryab Jilani and Sr. Adv. Meenakshi Arora representing the Sunni Waqf Board respond to the submissions of the Hindu parties.

While the counsels on behalf of the Sunni Waqf Board and Farooq Ahemed (one of the appellants) raised numerous arguments to bolster their claim to the title of the disputed property, there was repeated emphasis on three broad arguments: 1. The Ram Janmabhoomi was not a legal person (‘Juristic Personality’) as there was no physical manifestation and formal consecration; 2. The location of the Hindu worship has always been restricted to the outer courtyard whereas the Mosque was located in the inner courtyard; 3. The nature of evidence relied upon by Shri Ram Virajman, the Nirmohi Akhara and other Hindu parties is unreliable.

The Bench too made some substantial interventions in September. In the third week of September, the Bench directed all the parties to finish their oral arguments by October 18th 2019, so as to leave the Bench with a month’s time to finalise its judgment before Ranjan Gogoi CJI’s retirement. In another significant development, the Bench observed that the parties may, in parallel to the hearings, engage in mediation if they wished to.

For more detailed coverage, read our weekly summaries of Ayodhya proceedings.

Aadhaar-Social Media Linking: The Court has been hearing petitions filed by Facebook to transfer certain petitions pending before the Madras and Madhya Pradesh High Courts. As per these petitions before the HCs, social media intermediaries should be fixed with the duty to identify and share with the law enforcement agencies, the originators of unlawful content on their platforms. In the transfer petitions before the SC, Facebook has expressed concern that the High Courts may produce differing outcomes and the SC itself should hear these petitions to avoid any ambiguity in the law.

In the hearing on September 24th 2019, the Bench comprising Deepak Gupta and Aniruddha Bose JJ refused to pass any substantive orders. Instead, the Court directed the Union to file an affidavit indicating the time required for framing guidelines to curb misuse of social media. The Bench further observed that the given the technical complexities involved in the matter, it was only appropriate that the Government deal with the matter first before there was any intervention from the Court’s side.

Legality of SC/ST Act Amendment: A 3-judge Bench consisting of Arun Mishra, Vineet Saran and S.R.Bhat JJ in a hearing on October 3rd 2019 reserved the judgment in the writ petitions filed against the constitutional validity of the 2018 amendments to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Bench observed that the questions raised in the writ petitions stood answered in light of the judgment in the review petitions filed against Subhash Kashinath Mahajan. Nevertheless, counsels for the petitioners pointed out that two issues raised in the petitions – in relation to anticipatory bail and preliminary enquiry – remained unclear. The Bench responded that these issues will be specifically clarified in the upcoming judgment.

Elevation of  Kureshi J: The Supreme Court has been hearing a petition by Gujarat High Court Advocates Association (GHCAA) praying for the immediate appointment of Akil Kureshi J as Chief Justice of the Madhya Pradesh High Court. The GHCAA had filed its petition after the Union Law Ministry failed to respond to a 10 May Collegium resolution, recommending Kureshi J for the position. At the end of August, the Law Ministry finally sent a reply to the Collegium, requesting that Kureshi J be transferred to a different High Court. After taking the replies into consideration, on September 5th, the Collegium recommended Kureshi J for the post of Chief Justice of the Tripura High Court.

In the final one of the three hearings which took place in September, the Bench directed that the petition be left pending until the Union Government notifies Kureshi J’s appointment. In addition, the Bench explicitly observed that powers of judicial review are limited with regards to the appointment and transfer of judges, which are administrative matters.

Eviction of Forest Dwellers: The Supreme Court is monitoring the implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. On February 13th 2019, it had ordered states to evict or take other appropriate legal action against all forest dwellers who had had their land claims under the Forest Rights Act rejected. A fortnight later, the court stayed its order after the Union expressed concern over whether due process had been followed in rejecting claims. Thereafter, the court directed all states to file affidavits submitting whether they had followed due process. In the hearing in August, the court determined that nine States had not followed due process in rejecting claims and seven states had failed to file their affidavits. The bench had then directed these states to file their affidavits within 15 days.

In the hearing on September 12th 2019, one of the petitioners, Wildlife Trust of India, withdrew its petition. In another significant development, the Bench made the Forest Survey of India (FSI) a party to the case. Previously, it had directed the FSI to conduct a satellite survey of encroachment on forest land. To this, the FSI submitted that it would require permission to perform the survey by all States and Union Territories. It stated that it had already requested the same from each State/UT. Sr. Adv. Shyam Divan emphasised that the Union needed to release adequate funds to the FSI, as currently it could take up to 16 years to complete the survey.

The bench has now listed the matter for November 26th, by which time States must have supplied appropriate details to the FSI

POCSO Implementation: In the hearing on September 25th 2019, the state of Rajasthan submitted that it had set up designated Protection of Children from Sexual Offences (POCSO) courts in all districts. The Bench expressed its appreciation for the state’s efforts and also hoped that other states will follow suit. On the same date, the Bench granted further time for the CBI to complete its investigation in one of the matters in the Unnao rape investigation, which has been tagged with the suo motu petition dealing with the implementation of the POCSO Act, 2012. Further, the Bench also acceded to a request by the trial judge for granting more time to finish the trials.

OTHER DEVELOPMENTS

Four new judges appointed to the Supreme Court: The President of India confirmed the appointment of four new judges to the Supreme Court, bringing the Court to its full sanctioned strength of 34. The four new judges – Krishna Murari, S Ravindra Bhatt, V Ramasubramanian, and Hrishikesh Roy JJ – took oath on September 23rd 2019.

The Supreme Court collegium, comprising the Chief Justice and four senior most judges, had recommended the names of the four judges on August 28th 2019. In making the recommendation, the collegium had emphasized that priority was accorded to not just the seniority of judges on all-India basis, but also the desirability of giving due representation to all High Courts, as well as competence, conduct, and integrity of individual judges