Past weeks have seen remark on remark by senior echelons of the Modi 2.0 government that can be interpreted aa nothing short of open provocations. 

Kiren Rijiju, during the ongoing winter session of the Parliament, said in the Rajya Sabha that a constitutional body like Supreme Court should not be hearing “bail applications and frivolous PILs’’ at a time when pendency of cases is so high.

In what came as a quick and befitting counter to Rijiju’s remark, CJI Chandrachud said while hearing a case, “If we do not act in matters of personal liberty and grant relief then what are we doing here? What is SC doing and is it not a breach under Article 136. SupremeCourt exists to hear to the cry of such petitioners. We burn the midnight oil for such cases and see there is more”. His bench was hearing a bail plea filed by a man convicted of stealing electricity and was sentenced to 18 years in prison (9 offences and 2 years punishment for each, not running concurrently) out of which he had served 7 years. The Supreme Court allowed the appeal and the CJI ordered thus,

“Leave granted. facts of the present case provide another instance, a glaring one at that, indicating a justification for SC to exercise its jurisdiction as a protector of fundamental right to life and personal liberty inherent in every citizen. if the court was not to do  so, there would be serious miscarriage of justice for a citizen whose liberty has been abrogated. It is in seemingly small routine matters that issues of moment both in jurisprudential and constitutional terms emerge. Intervention by SC to protect the fundamental rights is based on sound constitutional principles as under 136. right to personal liberty is precious and inalienable liberty and by doing this sc performs a plain constitutional duty. obligation, no more and no less.”

Collegium in the dock again

On pendency of cases, while highlighting that over 5 crore cases are pending in courts across the country, at all levels, Rijiju had also said, “The government has very limited powers to fill vacancies of judges. The government has no power to search for any new name apart from what the (Supreme Court) collegium has recommended. We are giving our full support to reduce pendency of cases. But questions will keep arising on vacancy of judges and appointments till we create a new system for appointments”.

“We only request the chief justices of high courts and the Chief Justice of India (CJI) to expedite the appointments against vacant posts of judges. The recommended names should reflect the diversity of the country in terms of caste, religion and gender. But I feel that somehow things are not happening matching the sentiments of Parliament and the nation,” he added.

Rijiju has overtly criticized the collegium system at public events in the past few months. Speaking at the India Today Conclave on November 5, 2022, he had made some strong remarks against the Collegium system, calling it ‘opaque’ and lacking accountability. He said his government is making the most of the present system till an alternative mechanism is put in place.

On November 25, speaking at Times Now Summit 2022 Rijiju had said, “Never say that the government is sitting on the files, then don’t send the files to the government, you appoint yourself, you run the show…” Describing the Collegium system as “alien” to the Constitution, he had said, “You tell me under which provision the Collegium system has been prescribed.”

On November 28, Justice SK Kaul while hearing a contempt plea filed by the Advocates Association Bengaluru in 2021 (The Advocates’ Association Bengaluru v. Shri Barun Mitra, Secretary)  against the Centre not approving 11 names reiterated by the Supreme Court collegium, seemingly made a reference  to Rijiju’s comments and said, “When someone high enough says that..it should not have happened..Mr AG, I have ignored all press reports, but this has come from somebody high enough also.

On the December 9 hearing of the same case, Justice Kaul said, “Just because there are some sections of the society who express a view against the collegium system, it will not cease to the law of the land.”

Vacations in courts

BJP’s Sushil Modi questioned whether the government will discuss with the judiciary about doing away with winter and summer vacations as high courts have 155 holidays and Supreme Court has 141 holidays through the year. Rijiju said that the government has limited powers to intervene in such matters of the judiciary but long vacations are inconvenient for litigants and that it was his duty to convey the sense of the House to the judiciary.

In this backdrop, CJI Chandrachud declared today that the apex court will not have any vacation benches during the winter break which starts from December 17 and the court will re-open on January 2, 2023.

Such a war of words between the executive and the judiciary is unprecedented. The two most important pillars of the democracy refuse to see eye to eye on various issues, the most pertienent being the appointment of judges which requires the rubber stamp of the government. While the judges posts remain vacant in many courts, the government is washing its hands off saying it has no choice apart from the collegium recommendations, while the collegium has time and again reiterated its recommendations. This constant back and forth between the government and the judiciary has become a mark of an unhealthy democracy.

Related:

Collegium System is Law of the Land, Must Be Followed: Supreme Court to Centre

Is the Centre overreaching itself in returning Collegium recommendations, again?

“It frustrates the whole system”: Supreme Court voices deep anguish against Centre sitting over Collegium recommendations

The post SC exists to protect personal liberty: CJI DY Chandrachud  appeared first on SabrangIndia.

The 50th Chief Justice of India, Justice D Y Chandrachud, took office on November 9. His term began at a pivotal time when the judiciary is dealing with myriad cases of violation of basic human rights and high expectations are being put on him. He holds exceptional academic credentials and attended Harvard Law School and the University of Delhi, two of the top colleges in India and the world. He has published several significant judgments and contributed to the advancement of progressive jurisprudence, particularly on matters pertaining to gender and women’s empowerment. CJI Chandrachud has been long known for his feminist and non-conforming thinking, who not only believes in voicing his dissent whenever necessary, but has shown that we, as a society, need to listen to the demands made by women and other oppressed genders. 

He has been at the forefront of efforts to safeguard the rule of law and improve access to justice. In addition to having the longest term in recent years of about two years—Justice DY Chandrachud will be the youngest CJI in the previous ten years.

As he starts his two year long tenure, some highly significant cases will probably be listed for hearing. Some of these cases are highly contested, and have been pending for more than a few years. Here is a glimpse of such potential cases:

Cases that will potentially be heard during the tenure of CJI Chandrachud:

Forest Rights Act case:

In a ruling dated February 13, 2019, the Supreme Court ordered the removal of more than 11.8 lakh tribal families and traditional forest inhabitants from their homes in 16 Indian states. Although this was purportedly done to safeguard wildlife, it was observed by many that the Court had not examined the legality of the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006—the basis for the case that is currently before it.

Justices Arun Mishra, Navin Sinha, and Indira Banerjee constituted the three-judge bench of the Supreme Court which ordered state governments to evict tribal families and traditional forest inhabitants whose petitions have been denied by the appropriate authority on or before July 27, 2019. This order was later stayed in 2019 by a bench comprising of Justices ArunMishra,  Navin Sinha and M.R. Shah.

[Wildlife First & Ors. Petitioner(S) Versus Ministry of Forest And Environment & Ors., WP (C) No(s). 109/2008]

Petition challenging Anti-conversion Law

In 2020, a PIL was filed by Citizens for Justice and Peace (CJP)against the promulgated Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 and the Uttarakhand Freedom of Religion Act, 2018, ostensibly prohibiting forceful prohibition of conversion for the purposes of marriage. In the year 2021, the Supreme Court allowed the NGO to move an application to amend its petition by including two other similar anti-conversion laws passed by Madhya Pradesh and Himachal Pradesh.

The petitioner-organization argued in the PIL that the provisions of the contested Act and Ordinance violated Article 21 of the Constitution since they gave the State the authority to restrict an individual’s personal liberty and restrict their freedom of choice and religion. The issue has not yet been listed.

Plea challenging Abrogation of Article 370 of the Indian Constitution

On August 5, 2019, the Central government declared its intention to divide Jammu and Kashmir into two Union territories and withdraw the region’s special status under Article 370. Several applications challenging the constitutionality of the statute repealing Article 370 of the Constitution, which granted Jammu and Kashmir special status, and dividing the state into two Union Territories have been submitted to the highest court. The Jammu and Kashmir Reorganization Act, 2019, was later the subject of some petitions filed in opposition to the government’s delimitation decision.

In September 2022, the Supreme Court’s bench headed by the former CJI U.U. Lalit had said that it will list the matter- challenging the abrogation of Article 370 and the bifurcation of Jammu and Kashmir into two Union Territories- for hearing after the Dussehra break. The matter is yet to be listed.

[Radha Kumar and Ora vs UOI and Ors, WP(C) 1070/2019]

Hate Speech cases

The Supreme Court will be examining two separate petitions against hateful content made during politico-religious festivities. The first case is a freshly filed public interest litigation (PIL) that has prayed for guidelines against the backdrop and political conspiracies that resulted in such hate speeches. In the PIL, advocate Harpreet Mansukhani Saigal, the petitioner has claimed that a larger conspiracy is afoot to turn India into a police state, victimising the average person in the most arbitrary and unconstitutional ways possible. .The bench comprising former CJI UU Lalit and Justice Ravindra Bhat while hearing this plea about hate speech being mixed with criminal conspiracy, had asked the petitioner to file specific instances of hate speech instead of giving a vague overview of the problem. According to the CJI Lalit, the petitioner had a legitimate argument to claim that hate speech is polluting the entire atmosphere and that it has to be stopped. The petition was last heard in October and was supposed to be listed in the month of November.

[Harpreet Mansukhani v UOI, W.P.(Crl.) No. 89/2022]

The second case, an ongoing one, now seeks to hold the police chiefs of Delhi and Uttarakhand in contempt for failing to take action against spiteful remarks made at politico-religious events in December, 2021. The Supreme Court bench of the then Justices DY Chandrachud and Hima Kohli had, on October 10, ordered the Uttarakhand Government and the Government of NCT of Delhi to file affidavits outlining the facts and the action they have taken in response to a contempt petition alleging blatant and disobedient failure on the part of the DGP, Uttarakhand Police and DGP, Delhi Police to take action with regard to hate speeches made by prominent individuals in Dharma Sansad in the State of Uttarakhand and an event organized by Hindu Yuva Vahini in the national capital. The matter was supposed to be listed in the month of November.

[Tushar Gandhi v. Ashok Kumar Contempt petition 41/2022 in WP 732 of 2017]

Extensions to Reservations in the Lok Sabha and State Legislative Assemblies

Mr. Ashok Kumar Jain filed a case against Article 334 of the Constitution, which grants reservations for the Anglo-Indian Community, Scheduled Castes, and Scheduled Tribes in the Lok Sabha and State Legislatures, before the Supreme Court in October 2000. Originally, 10 years was the maximum time frame for which reservations could be made. With the exception of the most recent revision, which eliminated reservations for Anglo-Indians in January 2020, the Article has undergone seven amendments since 1969, with each one extending the reservations for these groups by 10 years.

The Constitution (79th Amendment) Act of 2000, which acted as the fifth extension and was passed in January of that year, was challenged by Mr. Jain. According to Mr. Jain, the Amendment infringes on the basic freedom guaranteed by the Constitution to democratically express one’s choice of candidates.

On November 1, a Constitution Bench of the Supreme Court posted the pleas challenging the constitutional validity of extending political reservation granted to the Scheduled Caste and Scheduled Tribe communities in Lok Sabha and State Legislature beyond the original ten years contemplated by the Constitution, for directions, on 29th November, 2022.

[Ashok Kumar Jain v. UoI W.P. (C) No.546/200]

Challenges to Section 6A of the Citizenship Act, 1955, Assam’s National Register of Citizens and the Assam Accord

The origin of the NRC process lies in the 1985 Assam Accord entered into between the Rajeev Gandhi-led Union Government with the leaders of Assam. A part of para 5 of the Accord was given statutory recognition by Section 6-A of the Citizenship Act, 1955. Section 6A, specified a new procedure for Assamese residents to become citizens. All persons who had migrated to Assam after January 1, 1966 and before 25 March 1971 were to become citizens of India either immediately or after a period of ten years.

The Assam Sanmilita Mahasangha challenged Section 6A in November 2012 on the grounds that it discriminated against other Indian citizens by offering a separate path to citizenship to this particular group of migrants. The NRC remained dormant until an SC Bench comprising Justices R.F. Nariman and Ranjan Gogoi ordered the State of Assam to begin updating it in 2013. In December 2015, the Bench referred the challenge to Section 6A to a 5-Judge Constitution Bench.

On November 01, 2022, a Constitution Bench of the Supreme Court posted the pleas challenging the constitutional validity of Section 6A of the Citizenship Act inserted by way of an amendment in 1985 in furtherance of the Assam Accord, for directions, on 13th December, 2022. The Bench also asked the Counsel representing the parties concerned to file joint compilation of written submissions, precedents, and any other documentary material along with a common index.

[Assam Sanmilita Mahasangha & Ors v. Union of India & Ors. W.P. (C) No.562/2012]

Electoral Bonds case

The Supreme Court announced that it will list the case challenging the electoral bond scheme, which permits political parties to receive anonymous funding, on November 14, 2022. This statement was made by CJI DY Chandrachud in response to Senior Advocate Anoop Chaudhari’s reference of a new lawsuit contesting a recent regulation pertaining to an electoral bond system.

By inserting “an additional time of 15 days” for the issuance of electoral bonds “in the year of general elections to the legislative assemblies of States and Union Territories with legislature,” a new notification amended the scheme.

Two non-governmental organizations, the Association for Democratic Reforms and Common Cause, filed a petition alleging that the money bill route was used in order to avoid the Rajya Sabha, where the governing BJP government lacks a majority.

The petitioners have argued that the amendments destroyed the political funding transparency by removing the requirement for names and addresses of contributors of electoral bonds in yearly contribution reports of political parties to be filed to the Election Commission of India. The abolition of the donation cap by the 2013 Companies Act change and the 2010 Foreign Contribution (Regulation) Act amendments to Section 236 have both been contested as opening up the possibility of foreign funding for Indian political parties.

[Association for Democratic Reforms & Anr v. Union of India Cabinet Secretary & Ors., W.P. (C) No. 333/2015]

Hijab ban case

On October 13, 2022, The Supreme Court delivered a split verdict on the issue of Karnataka hijab ban. Justice Hemant Gupta dismissed the petitions against the hijab ban, while Justice Sudhanshu Dhulia allowed them, setting aside the Karnataka High Court judgment refusing to lift the ban on hijab in schools. After the split judgment, the matter will now be heard by a three-judge bench of the Supreme Court.

On December 28, 2021, six girl students of the government-run PU College in Udupi, Karnataka, were reportedly denied admission to classes because they were wearing a hijab. They protested and later filed a petition before the High Court. The hijab dispute soon spread to other places in Karnataka, too. On March 15, Karnataka High Court upheld an order by the state government that effectively empowered government colleges to ban hijab on campus. The High Court said that hijab is not a part of Islam’s essential religious practices and that requiring students to be in uniform is reasonable.

[Aishat Shifa v. State of Karnataka & Ors. [CA No. 7095/2022] and other connected matters

Sedition case

On May 11, 2022, while hearing the petitions challenging the constitutional validity of the offence of sedition under Section 124-A of the IPC, the Supreme Court had ruled that the Centre and state governments are to refrain from registering any new FIRs under Section 124-A IPC while it was under consideration by the Centre.

A bench comprising former Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli, held that all pending cases, appeals and proceedings with respect to charges framed under Section 124-A are to be kept in abeyance, and adjudication with respect to other sections may proceed with no prejudice be caused to accused.

On October 31, 2022, the SC granted more time to the Centre to take “appropriate steps” with regard to the reviewing of the colonial-era provision. The SC also took note of other petitions on the matter and issued notices to the Centre, seeking its reply in six weeks’ time.

[S.G. Vombatkere Vs Union Of India (WPC 682/2021) Editors Guild Of India And Anr. Vs Union Of India And Ors. (WPC552/2021)]

UAPA case:

The Unlawful Activities (Prevention) Act, 1967, is being challenged in Supreme Court as having “manifestly arbitrary” provisions and a very broad definition of “unlawful activity” that has a stifling impact on free expression. In this petition filed by Foundation of Media Professionals, it is argued that the UAPA’s provisions are “arbitrary and perverse, since they represent a condemnation of all democratic expression,” and that governments are abusing them “to target any and all kinds of dissent.” The foundation urged the top court to declare the UAPA unconstitutional on the grounds that it was manifestly arbitrary and violated Articles 14, 19, and 21 of the Constitution, which guarantee the rights to equality, freedom of speech, and life and liberty. The Supreme Court, which first took up the matter September 26, 2022 will be hearing the matter in November.

[Foundation Of Media Professionals & Anr V UOI & Ors W.P.(C) No. 230/2022]

Challenge against CAA:

On October 31, the Supreme Court, conducted an initial round of hearing of petitions challenging the validity of the Citizenship Amendment Act, 2019 (CAA). The bench comprising the former Chief Justice U.U. Lalit, Justice S. Ravindra Bhat and Justice Bela M. Trivedi subsequently posted the case for further hearing before an appropriate bench on December 6.

CAA was passed by Parliament on December 11, 2019 and it was met with protests all across the country. The CAA came into effect on January 10, 2020.

Upon being informed of the total 232 petitions challenging the CAA, and the latest affidavit filed by the Union Government has not yet been compiled and provided to all parties, the bench appointed advocates Pallavi Pratap and Kanu Aggarwal as nodal counsel respectively from the Petitioner’s and Union Government’s side, in the matter to ensure proper compilation of documents to facilitate the smooth conduct of the proceedings.

In its latest affidavit, the Union Government has opined that CAA is a limited legislation that does not affect the rights of any Indian citizen. It submits that the CAA is a “benign piece of legislation which seeks to provide a relaxation, in the nature of an amnesty, to specific communities from the specified countries with a clear cut- off date.”

[Indian Union of Muslim League and Ors. v. UoI and Ors. WP(C) No. 1470/2019]

Marital Rape:

On September 9, 2022, the Supreme Court adjourned a batch of petitions arising out of the Delhi High Court’s split verdict on the issue of criminalisation of marital rape. Two petitions arising out of the high court’s verdict came up for hearing before a bench comprising Justices Ajay Rastogi and BV Nagarathna. During the hearing, the Bench said that it would tag all similar matters together.

This follows the divided judgement from the Delhi High Court on May 11. The Court arrived to a judgment; one judge, Justice C Hari Shankar, argued for reading down the legal defense shielding husbands and wives from punishment for forcing marital sex on their wives, while the other judge, Justice Rajiv Shakdher, refused to deem it unconstitutional. However, both judges had agreed to provide the certificate of authority to appeal to the High Court because the case involves significant legal questions that the Supreme Court must resolve.

Whether IPC section 375(2)’s exclusion of marital rape from the crime of rape is unconstitutional and in violation of articles 14, 15, and 21 is the question posed by the current appeal for review before the Supreme Court.

On September 16, Supreme Court bench of Justice Ajay Rastogiand Justice B. V. Nagarathna issued notice on a batch of petitions filed assailing the split verdict of the Delhi High Court on the issue of Marital Rape. The Court agreed to hear the issue in the month of February, in the year 2023, and clubbed all the matters regarding the issue of Marital Rape pending in the Supreme Court together.

[RIT Foundation v. UOI and other connected matters]

Places of Worship case:

A writ petition under Article 32 of the Constitution has been moved in the Supreme Court which is in nature of a Public Interest Litigation seeking orders from the Supreme Court for effective enforcement of the Places of Worship (Special Provisions) Act, 1991.

The petition filed by the Jamiat Ulama-i-Hind has submitted that Muslim Places of Worship are being made the subject matter of frivolous controversies which is in clear violation of the 1991 Act and despite there being a bar such proceedings are being permitted to proceed with interim orders altering the status quo which has been maintained for ages in the Muslim Places of Worship.

The bench led by CJI Chandrachud directed the Union to file its counter-affidavit by December 12, 2022 and posted the matter in the first week of January 2023.

[Ashwini Kumar Upadhyay Versus Union of India and Ors. W.P.(C) No. 1246/2020 and connected matters]

Here is a glimpse of some landmark judgments given by CJI Chandrachud in the past-

Landmark Judgments Delivered by J. Chandrachud in the past:

National Anthem case:

“Desirability is one thing but making it mandatory is another. Citizens cannot be forced to carry patriotism on their sleeves and courts cannot inculcate patriotism among people through its order”

Justice Chandrachud has been a part of and voiced his non-conformist opinion in numerous high-profile matters after being elevated to the top court in 2016. The National Anthem controversy was one of these cases. The 2016 order requiring moviegoers to stand when the National Anthem is played was criticized by Justice Chandrachud, who claimed that no Indian needed to “wear his patriotism on his sleeve.” He had questioned when such “moral policing” would end if it were mandated that certain types of clothing should not be worn to the movies because they could be construed as disrespecting the national anthem.

[Shyan Narayan Chouksey v. Union of India & ors., WPC No. 855/2016]

Sabarimala Judgment

“To exclude from worship, is to deny one of the most basic postulates of human dignity to women. Neither can the Constitution countenance such an exclusion, nor can a free society accept it under the veneer of religious beliefs.”

In a 4:1 verdict, the Supreme Court granted women of all age groups entry into Kerala’s Sabarimala temple, breaking the temple’s age-old tradition of restricting menstruating women from entering its premises. In a majority verdict, with the lone woman judge Indu Malhotra writing the only dissent, Justice Chandrachud ruled that excluding women from worship denied “one of the most basic postulates of human dignity”.

[Indian Young Lawyers Association v. State of Kerala (2019)]

Decriminalization of Section 377

“It’s too long a period for the LGBTQ community to suffer the indignities of life”

Justice Chandrachud was on the Supreme Court bench in August 2017 when the court ruled that the right to privacy was a basic right. As a result, Section 377 of the Indian Penal Code—which made homosexuality illegal—was repealed. The court in this case observed that because sexual orientation is a biological phenomenon, any discrimination based purely on this basis would be deemed to be a violation of citizens’ fundamental rights.

On the 4th anniversary of the Navtej Johar judgment, while Speaking at an event organized by the British High Commission, CJI Chandrachud said, “Equality is not achieved only by criminalization of Section 377 of the IPC, it must be extended to all walks of life including home, workplace, public place, etc. Which we captured. While the decision in Navtej (Section 377) was significant, we have a long way to go.”

[Navtej Singh Johar v. Union of India (2018)]

Aadhaar

“The right of 1.2 billion citizens could not be tested as a mere contract with UIDAI, the Aadhaar implementation agency. Mobile phone has become an important feature of life and its seeding with Aadhaar poses a grave threat to privacy, liberty, autonomy.”

Justice Chandrachud was the sole voice of dissent in the passing the Aadhaar Act. While the court upheld the passage of the Aadhaar Act as money bill in the Parliament, Chandrachudwrote the judgment separately and mentioned that passing of Aadhaar Act as money bill was ‘fraud on Constitution’.

[K.S. Puttaswamy v. Union of India (2018)]

Bhima Koregaon case

“The grievance is that those five persons are being prosecuted for their views and their voices are sought to be chilled into silence by a criminal procedure”

Justice Chandrachud was also the only dissenting voice in the Bhima Koregaon case, wherein a plea for a probe by Special Investigation Team (SIT) was demanded into the arrest of the activists who allegedly instigated violence at Bhima-Koregaon and participated in a criminal conspiracy against Prime Minister Narendra Modi. The majority of CJI Dipak Misra and Justice AM Khanwilkar turned down the plea while Justice DY Chandrachud, was in dissent of the judgment. He upheld the rights of the five activists. In his minority opinion as a member of the bench hearing the bail plea of the activists in the Bhima Koregaon case, Justice Chandrachud wrote – “Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes.”

[Romila Thapar v. Union of India (2018)]

Termination of pregnancy

In a recent landmark decision, a bench of Justices D Y Chandrachud, A S Bopanna, and J B Pardiwala ruled that unmarried women should be included in the Medical Termination of Pregnancy Act (MTP) and that their exclusion was “discriminatory.” The court panel led by Justice DY Chandrachud said that although the 1971 legislation deals with married women, the distinction between married and unmarried women is arbitrary and untenable, and it is crucial that women have the freedom to exercise their legal and safe abortion rights.

[X v. The Principal Secretary, Health and Family Welfare Department, Government of National Capital Territory of Delhi (2022)]

Hadiya marriage: ‘Love Jihad’

“When two freely consenting adults have decided to get married, can the court go into the rightness or correctness of the partner of the justness of the marriage?”

In a historic decision in 2018, a bench of Supreme Court judges – Chief Justice Dipak Misra, AM Khanwilkar and DY Chandrachud overturned a lower court’s order which had declared the marriage of Akhila Ashokan (who changed her name to Hadiya) and Shafin Jahan as ‘illegal’. The court affirmed that the freedom to decide on marriage and changing one’s faith is within one’s right to privacy and liberty while allowing the NIA to continue its investigation into the case. In his concurring opinion, Justice Chandrachud endorsed Hadiya’s autonomy “over her person” and stated that how she decided to live her life was “totally a matter of her choice.”

Before this the bench, during the pendency of the petition however had controversially brought in an agency like the NIA to verify the “claims against Hadia.”

[Shafin Jahan v. Asokan K.M (2018)]

Right to Privacy

“Life and personal liberty are inalienable rights… The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution.”

Justice Chandrachud also had to contend with several of his father’s rulings during his term. ADM Jabalpur v. Shivakant Shukla case ruling was overturned in one such instance by Justice Chandrachud, who authored the majority opinion in the 2017 privacy case. The Supreme Court’s Constitution Bench, which is made up of nine judges, ruled unanimously that the right to privacy is a basic one. The lead opinion was written by Justice Chandrachud, who emphasized how privacy was a crucial component of human dignity. The earlier judgment was described as having “serious flaws” by the current Chief Justice. The nine judges bench presiding over the judgment unanimously agreed that Right to Privacy is a fundamental right and that it is protected under Article 21 of the Constitution of India.

[K.S. Puttaswamy v. Union of India (2017)]

Passive Euthanasia

“The right to a dignified existence, the liberty to make decisions and choices and the autonomy of the individual are central to the quest to live a meaningful life.”

According to the Supreme Court’s ruling on passive euthanasia, the right to a dignified death is a basic right just like the right to life. The highest court in India made the decision to permit passive euthanasia as a result.

According to Justice Chandrachud’s ruling, personal freedom must be protected. He added that in order to pursue happiness and uncover the purpose of life, one must have freedom, dignity, and autonomy.

[Comman Cause v. Union of India, AIR 2011 SC 1290]

Ayodhya case

Justice Chandrachud was part of a five-judge Constitution bench that on November 9, 2019 in a unanimous verdict cleared the way for the construction of a Ram Temple at the disputed site at Ayodhya, and directed the Centre to allot a five-acre plot to the Sunni Waqf Board for building a mosque. While the judgment did not bear the name of the author, many believe that it was written by CJI Chandrachud himself.

The judgement on an issue that has vexed the Indian constitutional scheme, while recognising that what happened on December 6,1992 — the demolition of the Babri Masjid— was a criminal act, granted Hindus exclusive control and rights over the contested land, where a mosque once stood.

This judgement also upheld however the Places of Worship Act, 1991 and firmly held that this law was a part of the basic structure of the Constitution.

[M Siddiq (D) Thr Lrs vs Mahant Suresh Das & Ors.]

Gyan Vapi Case

The Gyanvapi case pertains to a petition by five Hindu women who have asked a local court to allow daily prayers before idols on its outer walls as well as other “visible and invisible deities within the old temple complex”. The mosque is located next to the Kashi Vishwanath temple.

The Committee of Management of Anjuman Intezamia Masjid, the organisation that has filed the appeal in the top court in the Gyanvapi case, contended that the order of the Varanasi civil court allowing a videography survey in the mosque complex violated the Act.

The bench of the then Justices Chandrachud and Narasimha had made an observation backing it. “In providing a guarantee for the preservation of the religious character of places of public worship as they existed on 15 August 1947 and against the conversion of places of public worship, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by providing the confidence to every religious community that their places of worship will be preserved and that their character will not be altered,” the court had said.

In addition to this, the then Justice DY Chandrachud had said in the court—that the Places of Worship (Special Provisions) Act, 1991 does not debar ascertainment of the religious character of a place of worship. Although it’s possible that then-Justice Chandrachud didn’t mean it that way, his remarks on ascertainment did convey the idea that Hindu communal groups have the legal right to claim any mosque. This runs counter to what the five-member bench stated in the Ayodhya decision from November 2019.

According to the 2019 Ayodhya judgment, secularism is one of the Constitution’s fundamental tenants, the Places of Worship Act preserves the secularism ideal, and our Constitution recognizes non-retrogression, which states that a privilege that has been granted cannot be reduced or revoked.

[Committee Of Management Anjuman Intezamia MasajidVaranasi Petitioner(S) Versus Rakhi Singh & Ors., Petition(s) for Special Leave to Appeal (C) No(s).9388/2022]

Conclusion

The institutional and social expectations of the court are tremendous, and the current CJI has a challenging tenure.

His tenure, after the short and successful term of CJI UU Lalit, brings more hope.

Gendering justice, personal freedom and the surveillance state are some of the issues uncompromisingly dealt with.

Time will bear witness will to determine how the story will unfold.

Related:

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Women, married or unmarried have the right to safe & legal abortion: SC

Collegium system & transparency of judicial appointments: a conundrun

SC issues notice in plea urging criminal prosecution in Dharam Sansad case

Aadhaar linking to Voter ID: Empowering voters or enabling surveillance?

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Justice DY Chandrachud was speaking at a book launch in the capital, How to Save a Constitutional Democracy’ by Professor Tom Ginsburg and Aziz Z Huq at the University of Chicago’s Delhi Centre. Known for his clarity on issues of basic democratic freedoms, Supreme Court Justice DY Chandrachud turned the spotlight on the challenges facing the Indian judicial system and noted that there was a need for more nuance on how to resolve the situation of a judge’s “wrongful behaviour”. Stating that the system as it is right now, allows for only two possibilities — to impeach or to transfer — Chandrachud called for a “more balanced and nuanced mechanism” to make judges more accountable.

The discussion may be viewed here.

Arguing for a more nuanced approach, he said that while the Indian Constitution speaks of “only” of the two possibilities, “impeachment is not necessarily an answer in every situation you can think of regarding judicial demeanor”. Democratic erosion does not happen in one sweep, but slowly, says DY Chandrachud: SC judge bats for independence of judiciary, transfer of judges.

“Similarly, transferring a judge is no solution, for a judge who has a problem in a place where she or he is posted,” he added. Chandrachud, has been a significant voice in several landmark judgments last year. In the judgment on the validity and extent of one of the Centre’s flagship programmes, the Aadhar database, in 2018, Chandrachud wrote the only dissenting note in which he held that it could be used as an “instrument to turn India into a surveillance state”. Another important stand was in ordering setting up of a Supreme Court-monitored SIT to probe the Bhima Koregaon case related to arrest of five rights activists.

‘Dissent is the safety valve in a democracy; the pressure cooker will burst if you try to muzzle it’ and ‘Liberty cannot be sacrificed at the altar of conjecture (of police or authorities)’ was one of his oft-quoted phrases. Chandrachud, the son of a former judge Justice VY Chandrachud, has gained a reputation for his “lucidly written” judgments.

In Tuesday’s event, he also made observations regarding the independence of the judiciary and what the framework should be to “insulate the judiciary from wanton attacks on its institutional integrity”. “It is important to understand that you need to trust your judges, you need to trust your courts, because if that element of trust towards the judges and the courts disappears, I think there is a serious problem we are going to have in the democratic set-up itself.”

Chandrachud also said that the debate around federalism has “progressively sharpened”. He said, “Democratic erosion does not take place in one sweep but happens slowly. Small instances, when left unguarded, pose a threat to constitutional democracy. Judges have to look at how these small aspects are implemented.”

Batting for unconventional means to deal with vacancies in the judiciary, Chandrchud asserted the benefits of appointing “ad hoc judges” in the high courts. “I see no reason to not appoint ad hoc judges in high courts with large vacancies. Even the Supreme Court had three ad hoc judges when the Kesavananda Bharati case was being heard to take care of day-to-day work of the court since 13 judges were hearing that case for months,” he said.
 

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He placed the working of the Constitution in the context of several recent incidents, which paint the Indian state in a less savoury light, by saying, “The Constitution fails when a cartoonist is jailed for sedition. When jail instead of bail is granted to a blogger who was critical of religious architecture, the Constitution fails.”

“When we deny the power of love to people on grounds of religion and caste, the Constitution weeps. Exactly this happened yesterday, when a dalit groom was forced to step down from the top of a horse. When we read of such incidents, the Constitution weeps,” he added with pathos.
Justice Chandrachud was speaking at Justice Desai Memorial Lecture at the Bombay High Court organised by the Bombay Bar Association. He started his lecture reminiscing Balgangadhar Tilak, who was tried in the same court room years ago.

He said that the Constitution was a not a mere document of transfer of power from the British crown to Indian Republic. Article 395 of the Constitution, which repudiated the Indian Independence Act 1947, signifies this by breaking the chain of autonomy of the Constitution to the British Crown. Thus, the framers ensured that the Constitution was an autochthonous document, with its roots in the Indian ethos.

The Constitution has a transformative vision, which seeks to give people the power of destiny. Individual is its basic unit. A constitutional culture is based on the belief that it unifies people beyond one’s immediate sphere of acquaintance.

“We” in the preamble is an inclusive and ever expansive “we”. He commented about the emancipatory nature of the Constitution, which was reflected in the Sabarimala temple case. The right of a religious denomination is not a stand-alone right, which can exist in isolation from a woman’s right to dignity flowing from Articles 14 and 15.

The world is witnessing new age changes, which is rapidly altering the definitions of personal and cultural identities. He referred to the new breed of state nationalism, new forms of secular and religious violence, new politics of sexual and cultural identities, etc., which are changing the nature of interactions between an individual and society. The very definition of personhood is undergoing change in view of technological developments like Artificial Intelligence. The framers of the Constitution may not have foreseen these changes. The silences in the Constitution should be punctuated with its transformative and emancipatory ideals to make it a living document, which can effectively deal with the new-age challenges.

“Constitution works, even if it doesn’t matter to you. Constitution affects you, even if you don’t believe in it,” he said, concluding the lecture.
Justice Chandrachud iterated that the more important struggle between the Parliament and the Supreme Court has been over the custody of the Constitution- as to whether the power of amendment is unrestrained- “In the initial days of the birth of the nation, a stronger government tried to drive a socio-political revolution. Immediately, two decisions fuelled the change- the Romesh Thapar case striking down the Madras Maintenance of Public Order Act, and Brij Bhushan v. State of delhi by virtue of which the East Punjab Public Safety Act was struck down” “This was followed by the introduction of the Reasonable restrictions in 19(2) on the grounds of public order, friendly relations with foreign states and incitement to an offence…by the first amendment, Articles 31A and 31B were added which saved the laws providing for acquisition of estates for being inconsistent with the Fundamental Rights…this was the Centre’s struggle to centralise power through the Constitution” 

The judge canvassed how the preventive detention law brought into focus the jurisprudential position of the Supreme Court as being deferential to the State in the first decade of the working of the Constitution- “In A. K. Gopalan, the validity of a preventive detention law was to be determined within the four corners of Article 22, with no regard for 19 and 21, 22 being deemed to be a complete code in itself…Fundamental Rights were not seen as a continuous entitlement but as isolated instances of discrete rights. The Supreme Court’s stand then was of deference to the State agenda” “With the recognition of the Basic Structure doctrine in Kesavanada Bharti, limiting the plenary power of the government to amend the Constitution at its whims, the Constitution has endured”, remarked Justice Chandrachud. “The resilience of the Constitution is not just in placing individuals at the forefront of its endeavours but in the creating the vibrant institutions which sustain the democratic structure…democracies thrive when these institutions thrive, and nations fail when the institutions fail!”, he articulated. “Our Constitution has been called the most boisterous and contentious enterprise, bestowing the largest and the most diverse democracy with legal forms”, he continued. Justice Chandrachud discussed how, even though “secular” as a term found a spot in the Constitution only in 1976, the secular nature of the State was affirmed by the Constituent Assembly-

“During the framing of the Constitution, a significant question arose as to whether religious and other groups should have distinct representation in the electoral process. The Government of India Act envisaged communal representation in electorates, which idea was rejected by the minorities sub-committee and the advisory committee. The concept was finally done away with by Article 325. The charter of Fundamental Rights begins with non-discrimination on account of religion, race or caste…the Assembly granted autonomy to religious minorities…secularism was finally assigned the value of a basic feature of the Constitution by the Supreme Court in S. R. Bommai” The judge highlighted the asymmetric federalism- how right through the 1970s, one is impressed by the accumulation of power at the Centre, while post 1990, the growth of regional parties and the acknowledgment of the aspirations of the states by the Supreme Court brought about a degree of decentralisation. Speaking of constitutional identity, he remarked that homogeneity is the anathema to the Constitution. Constitutional identity is borne not merely from the features and ideals enumerated in its text, but from the relation between the constitution and the culture in which it operates, the gender, religious and national identities.

Courtesy: Live law

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With two sessions still to go (the 2018 winter session and the 2019-20 budget session), the 16th Lok Sabha (2014-19) has already passed 9% more “money bills” than the 15th (2009-14). Money bills are meant to clear government expenses and taxation and are easily passed by ruling-party majority in the lower house, the Lok Sabha, instead of greater debate in and scrutiny by both houses of Parliament.

Over the years, it appears that the Lok Sabha has favoured the use of money bills; 21% more money bills were passed than ordinary bills between May 2004 and September 2018–indicating that bills have been introduced and passed solely by the Lok Sabha (Rajya Sabha can only discuss money bills, but does not need to pass them), according to our analysis of parliamentary data.

The 14th Lok Sabha (2004-09) passed 173 bills, of which 51% were money bills (89 of 173 bills).

Since the current session of the Lok Sabha was convened, it has passed 208 bills, a 20% increase since the 14th Lok Sabha. Money bills were 35% (72 of 208) of the bills passed.

Laws that took the short cut
Here are some other laws, besides Aadhaar, that took the controversial “money bill” short cut:

1) The government amended the Foreign Contributions Regulation Act (FCRA), 1976–which earlier barred political parties from receiving foreign funding–through an amendment in the Finance Bill, 2016, to permit funding of non-government organisations by foreign companies and changed the definition of “foreign companies”.

Subsequently, the government amended the FCRA again to push back the date of commencement to 1976, rendering all donations received after 1976 legitimate, The Hindu reported on February 3, 2018. This move benefits the two major political parties of India, the Indian National Congress and Bharatiya Janata Party. The parties were pulled up by the Delhi High Court in 2014 for violating the FCRA by accepting donations from the UK based Vedanta group. With this amendment, the parties have managed to evade legal issues.

2) The Finance Act, 2017,  amended the Representation of Peoples Act, 1951, and the Reserve Bank of India Act, 1934, to allow the issuance of electoral bonds from any scheduled bank to donate funds to political parties listed under Representation of Peoples Act, 1951.

Electoral bonds were introduced to encourage transparency in the way political parties are funded by ensuring a cap in payment by cash of Rs 2,000. Anything above that requires donation through electoral bonds and cheques.

The electoral bonds, similar to promissory notes, do not bear the name of the donor or any other detail by which the donor can be identified. Details of the political party encashing it can not be accessed, according to this press release by the Ministry of Finance.

Electoral bonds, along with an amendment that allows loss-making companies to donate funds to the parties, could lead to the creation of shell companies (see here and here).

3) In a move to reform existing tribunals (parallel to the traditional court systems but related to disputes on specific issues; for example, the National Green Tribunal adjudicates environmental disputes), eight tribunals were to be merged with existing tribunals.

The newly framed rules under the Finance Act, 2017, shifted the authority to appoint the heads of the tribunals to the central government. This move has evoked six separate notices from the High Courts of Gujarat, Madras, Punjab, Haryana and Bombay and the Supreme Court, as provisions in the amendment are unrelated to tax-based issues.

At least 25 out of 40 amendments introduced in the Finance Act, 2017, were unrelated to government revenue and taxation, Bloomberg-Quint reported on March 23,2017.

Why a money bills is easy to pass
An ordinary bill usually goes through three hurdles before becoming a law. In the Lok Sabha (if introduced first in the Lok Sabha), the bill is debated and amendments are suggested. After the bill is passed, it is moved to the Rajya Sabha for another round of debate and voting. The bill finally goes to the President for approval, after which it becomes an Act, or law, and is published in the official gazette.

A money bill, however, does not have to go through these processes. The Lok Sabha has the sole authority to introduce a money bill, which must be certified by the speaker as a “money bill”. Article 110 (3) of the constitution states that “if any question arises whether a bill is a money bill or not, the decision of the Speaker of the House of the People thereon shall be final”.

Once passed, the bill is handed over to the Rajya Sabha. The upper house has the bill for 14 days, and its contribution is restricted to recommending amendments, which may or may not be accepted by the Lok Sabha. In case the bill is not sent back to the Lok Sabha in 14 days, the bill is deemed passed by both houses.

In the cases of the Finance Act 2017 and the Aadhaar Act 2016, recommendations that were suggested by the Rajya Sabha on March 29, 2017 and March 16, 2016, respectively were rejected by the Lok Sabha both times.
“Bicameralism is a founding value of our democracy,” said Justice Chandrachud in his judgment.

Invoking the Constitution, his judgement–which dissented with the majority opinion by Chief Justice Dipak Misra, Justices AM Khanwilkar, AS Sikri and Ashok Bhushan–criticised the introduction and passing of the Aadhaar Bill as a money bill, as it did not qualify as a money bill under Article 110 (1) of the constitution, making it “plainly unconstitutional”.

“The Lok Sabha is not entrusted with the entire authority of Parliament. The Lok Sabha, the Rajya Sabha and the President together constitute the Parliament of India,” his judgement further said.

In the 2018 budget session, the Lok Sabha passed two bills and 218 amendments without debate in thirty minutes on March 13, 2018, after the Speaker exercised the ‘guillotine’, which refers to voting on tabled bills and amendments by a voice vote without debate, IndiaSpend reported on March 14, 2018. Both bills were money bills–the Finance Bill, 2018, and the Appropriation Bill, 2018–and less than a second was spent on each matter tabled to be discussed.

The final stage in the passing of a money bill is the assent of the President. While the Constitution does not allow the money bill to be sent back to the lower house by the President, the assent to a money bill can be withheld by the President. Even as 72 money bills have been passed by the current Lok Sabha, only 62 have been accepted by the President.

The Aadhaar judgement noted previous instances where a money bill was considered exempt from judicial review.
The certification of a bill as a money bill is not just a matter of procedure in Parliament, the Court observed. If any illegality was detected and if the decision had breached constitutional provisions, then the decision (of the Speaker) is subject to judicial review, the court declared.

(Chhetri, a graduate of Lady Shri Ram College for Women, is an intern with IndiaSpend.)

Courtesy: India Spend
 

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