Supreme Court in 2018: A Dickensian mixed bag of milestones and misses

While the apex court showed promise in some areas of defending the citizen against social morality, it did not stand sentinel against government overreach

“It was the best of times, it was the worst of times,” was how Dickens began his tale of two cities. As far as the Supreme Court is concerned, 2018 was a year of two chief justices. The year began with four of the senior-most judges of the Court addressing an unprecedented press conference, in which they apprised the country about what they perceived was the misuse by the sitting Chief Justice of India, of the power to allocate cases. We are now approaching the end of the year, and three of those four judges have since retired. And one of them, Justice Ranjan Gogoi, has become the Chief Justice. 

At the beginning of the year, the logjam on appointments to the higher judiciary seemed to have no resolution in sight. However, the situation seems to have improved after October 2018, when Justice Gogoi was sworn in as Chief Justice. Hundreds of appointments have been made to High Courts since October. Some vacancies in the Supreme Court have also been filled. While eyebrows have been raised and lips pursed about some of those sworn in, it is hoped that the robes of office will change the man donning them

Path-breaking verdicts 

On the judicial front, the Court heard matters as varied as the Babri Masjid-Ram Janmbhoomi dispute, the validity of the Aadhar Scheme, the acquisition of the Rafale Aircrafts and the entry of women into Sabarimala. In many ways, 2018 was a remarkable year for the Supreme Court, with important and often unpredictable verdicts. The turn of the year is perhaps a good time to look at some of the significant decisions that the court made and, more importantly, to look at what it failed to do.

In Lok Prahari v. Union of India, the Court took another step towards ensuring free and fair elections. It directed that the Conduct of Elections Rules of 1961 be amended, so as to require candidates to declare on affidavit their own as well as their associates’ sources of income.

In Shafin Jahan v. Asokan KM, popularly known as the “Hadiya Case” the Court upheld an individual’s right to marry a partner of his or her choice. The Judgment, however, came at the end of proceedings that mark some of the darkest episodes for the Court as a custodian of fundamental rights.  What should have been a straightforward hearing on the affirmation of the right to choice, stretched on for months. At the end of a prolonged hearing, the Court affirmed that “social values and morals have their space, but they are not above the constitutionally guaranteed freedom.”

In Common Cause v. Union of India, the Supreme Court ruled that every individual has the right to die with dignity. It upheld the practice of passive euthanasia — the removal of life-support mechanisms from persons who have slipped into a persistent vegetative state, in order to allow them to die in the natural course of things — and laid down a set of detailed procedural guidelines to facilitate this process. 

A significant step towards reducing the long delays in conclusion of civil and criminal trials, was taken by the Court in Asian Resurfacing of Road Agency v CBI. Noting that an order of stay, was often used as a pretext to prolong proceedings, the Court held that a stay granted in both civil and criminal proceedings would expire after six months. The same could be renewed by means of a speaking order. However, the order would have to show that the case was of such exceptional nature that continuing the stay was more important than having the case decided.

One of the most significant decisions of the year was delivered by the Court while hearing a Petition filed by Tehseen Poonawalla. The Court therein, took note of the rising incidents of mob-violence in the Country and laid down detailed guidelines in order to curb the same. 

Towards the end of September, a number of judgments were delivered by the Constitution Bench led by the then Chief Justice of India. In Navtej Singh Johar v. Union of India, the Court unanimously read down S. 377 of the Indian Penal Code. In a deeply empathetic judgment, the Court recognised the “crucial role of sexual autonomy in the idea of a free individual”. It held that the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation. The Court held S.377, as far as it applied to consenting adults, was unconstitutional. As a result, homosexuality today stands decriminalised in India.

Alongwith Section 377, the offence of adultery (S. 497 of the IPC) was among the last remaining vestiges of state involvement in consensual sexual conduct. In Joseph Shine v. Union of India, the Court struck down Section 497, holding that the adultery regime was based on outdated notions of morality and was deeply discriminatory towards women.

In Indian Young Lawyers Association v. State of Kerala, the Court struck down the practice that barred entry of women into Sabarimala. It held that the exclusion of women between the ages of 10 and 50 from entry into the shrine was violative of the Constitution. 

These judgments were the latest in a series that has seen the Supreme Court take a firm stand in favour of the citizen. It must be kept in mind, that in adjudicating these cases, the Court was not taking on a paternalistic role and “granting” rights. It was merely interpreting the text of the Constitution to re-state what has already been set in ink - Each of us, regardless of our sex or sexual orientation is an equal citizen of this nation and is entitled to the same protection afforded by the Constitution.

This is not to say that the Court decided in favour of the citizen on each occasion. Perhaps the most significant Judgment of the year was delivered by the Court in KS Puttaswamy v. Union of India – the case challenging the validity of the Aadhaar scheme/Act. The case was argued over many months commencing from January this year. Ultimately, the Supreme Court by a majority of 4:1 upheld the constitutional validity of the Aadhaar Act. However, certain provisions of the act, notably the provisions allowing private parties to insist on an Aadhaar, were struck or read down. 

The grey areas

As is often the case, most controversies that were in the public domain reached the Supreme Court this year. The Court dealt with (and dismissed) petitions seeking an enquiry into the (mysterious) death of Judge Loya – the Judge presiding over the ‘Sohrabbudin fake encounter’ trial. Later in the year, the Court also dismissed a petition seeking an “independent and comprehensive inquiry” in the circumstances relating to the arrest of five human rights activists on charges related to the violence at Bhima Koregaon. 

More recently, the Court dismissed a set of petitions that sought an investigation into the procurement of the Rafale aircraft by the Government. The Judgment has been the subject of much debate, especially with regard to the ‘sealed cover jurisdprudence’ that the Court has been evolving. In its judgment, the Court has relied on a CAG report, which was purportedly submitted to the Parliamentary Affairs Committee and was in the public domain. However, no such report exists. The Centre has now filed an Application seeking correction of the Judgment.

The year 2019 promises to be as significant. Soon after it reopens, the Court will be asked to fix a date for the hearing of the Babri Masjid-Ram Janambhoomi dispute. Another significant issue that is pending adjudication is the validity of the electoral bond scheme promulgated by the Government. The Court is also expected to deliver judgment in the plea filed by Alok Verma, challenging his removal from the post of the CBI Director.

   

Year 2018 will go down as a watershed one for the court. It came into its own as a team institution, and not one that could be dominated by a single captain. However, while it showed promise in some areas of defending the citizen against social morality, it did not stand sentinel against government overreach. Its theme song was Constitutional Morality, a nebulous concept, more dependent on the personality than precept. It was the best of times, it was the worst of times.

The authors are lawyers who practise in the Supreme Court. They tweet @sanjayuvacha & @parahoot