The four pillars of Indian democracy have weathered many assaults from within and outside, since India’s midnight tryst with destiny on August 15, 1947. Since then, Parliament has risen above its ever-changing political, religious and caste pigmentation to enact diverse reformist legislations such as compulsory education, food security and divorce law. Prime Ministers of various political persuasions and regions emerged, some damaging institutions while others created new edifices that strengthened our democracy—VP Singh caused a national caste conflagration and went down in an ash cloud of ignominy while PV Narasimha Rao opened up the country’s moribund Socialist economy thereby initiating a reform revolution.
The media remains independent and noisy, though television has brought down the standard of news and opinion by many notches. The most hallowed of the four pillars, the Indian Judiciary, stands immutable in credibility and fairness. However, it has never been at the centre of such turbulent constitutional and social storms in 71 years as in 2018. Epoch-changing rulings, judicial integrity crisis, public revolt at the top and populist siege have made 2018 unquestionably the Year of the Judiciary.
While inaugurating the Supreme Court (SC) building on October 29, 1954, the first President of India, Dr Rajendra Prasad, said: “I do not think it will fall into the lot of any of my successors to declare open such a ‘Temple of Justice’.” The temple has held firm while political gods have risen and fallen as the SC continues to exercise its role as the conscience keeper of Indian democracy.
STRIKING THE RIGHT BALANCE
Except during the Emergency in 1975 when Indira Gandhi emasculated the courts, India’s judges have upheld their freedom of wisdom. On the lawns of the SC building stands a sculpture in black bronze, showing a woman representing Mother India sheltering a child symbolic of the Republic, who is holding an open book inscribed with a pair of scales that represent equal justice to everyone. The Opposition’s charge against the Narendra Modi government is that it has thrown the book at the judiciary itself. The apex court that operationally came into existence on January 28, 1950, upholds the principle that its law is binding on all courts across India.
With the instrument of judicial review, it can strike down legislative and executive actions that judges feel are unconstitutional or disturb the federal power balance. This year, judges came under public, media and political scrutiny in the manner they approached their mandate. At a legal summit in New Delhi in November, Attorney General (AG) KK Venugopal said the SC had “garnered to itself vast powers, which no one apex court in the world has ever exercised” and that its interpretation of Article 142 of the Constitution, in a manner, conveyed that it was “above the law”. Senior advocate K V Dhananjay does not agree.
He says, “Contrary to public perception, the SC hasn’t intruded into the executive domain. The rapid sequence of rulings, striking down several unfair legal provisions and common practices, gave the public the impression of judicial overreach. It decriminalised homosexuality between consenting adults and adultery, barred automatic arrests in SC/ST atrocity cases, allowed women of menstruating age into a government-administered Hindu temple and made triple talaq a crime, all of which are legitimate and much-needed actions.”
NO PUSHOVER
The Centre is on occasion known to be short on patience when it encounters obstacles to its economical, political and social agenda. It has passed radical social reforms such as criminalising triple talaq, made controversial economic decisions such as demonetisation and GST, announced the swift purchase of fighter aircraft to speedily fill up gaps in air defence and tweaked Planning with Niti Aayog. The SC has been the main point of reference for personalities and parties seeking to counter the government’s plans. A bench headed by Chief Justice Ranjan Gogoi dismissed all petitions seeking a direction to the CBI to register an FIR for alleged irregularities in the Rafale deal.
The judiciary’s objectivity was apparent when the bench, comprising Justices SK Kaul and KM Joseph, ruled out commercial favouritism to any private entity in the deal—significantly, the Centre’s delay in the elevation of Justice Joseph had given the Opposition ample opportunities to allege interference in legitimate judicial process. But all was not well in the hallowed chambers of the pink and white building designed in Indo-British style by public architect Ganesh Bhikaji Deolalikar on 17 acres.
Open confrontations between the judiciary and government representatives have marred the atmosphere, of which a long-standing complaint has been the delay in judicial appointments. In May, a bench comprising Justice MB Lokur who is part of the Collegium lashed out, “This is the problem with you (the government). When it comes to attacking the judiciary you have the data. But when it comes to the government you don’t have the figures.” He was referring to the AG’s admission that he doesn’t have the number of judges’ recommendations.
TROUBLE AT HOME
The worst low came with an open confrontation between the judges themselves. For the first time in modern India’s history, the judiciary laundered its dirty robes in public. The year began with Justices J Chelameswar, Ranjan Gogoi, MB Lokur and Kurien Joseph—the four senior-most judges in the SC after the then CJI Dipak Misra—holding a press conference on January 12 to protest the CJI’s style of functioning which they felt had a pro-Centre tilt, that seemed obvious in the allotment of important cases to junior judges.
Even after Justice Misra retired in October, the shadow deepened when retiring Justice Joseph observed in December that the SC wasn’t going “in the right direction”. He said, “Someone from outside was controlling the Chief Justice of India, that is what we felt.” Justice Chelameswar warned, “Unless this institution (SC) is preserved, democracy can’t be protected in this country”. However, in July the CJI had supported Delhi Chief Minister Arvind Kejriwal’s petition against the Lieutenant Governor’s (LG) interference in the state government’s functions.
“If a well-deliberated legitimate decision of the Council of Ministers is not given effect to due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collective responsibility would stand negated,” the CJI ruled. The AAP government has been accusing the Centre of blocking its development programmes through the LG sitting on files and encouraging the bureaucracy to sabotage the state administration. Former Delhi High Court Judge S N Dhingra, however, criticises the preferential treatment given to some cases while human rights cases do not make it to the roster. “Courts, especially Supreme Court, should try to look into such cases and not the other way around. People have been awaiting justice for 20 years and more, some of whom even die waiting. It’s time the courts prioritised cases according to merit.”
THE LETTER OF THE LAW
There is no obvious pattern behind the SC’s judgments to justify the Opposition’s claims that the judiciary has been compromised. The SC under CJI Misra denied pleas to set up an independent investigation into the mysterious death of Judge Brijgopal Harkishan Loya who was overseeing a SIT investigation of the Sohrabuddin encounter case that involved accusations against BJP President Amit Shah.
The same judge had ruled, within 10 days of taking over as CJI, in favour of investigative transparency: all states were ordered to upload all FIRs online within 24 hours of its registration to enable speedy judicial redress. In another ruling, a bench headed by Justice Misra had said, “Sunlight is the best disinfectant,” allowing live streaming of court proceedings.
On its part, the Union government sees judicial activism as the worst hurdle to policy-making by interfering in its orders by supporting PILs. At a National Law Day function in 2017, then CJI Misra had snubbed the law ministry, declaring it was the “sacrosanct duty of the judiciary” to protect fundamental rights of citizens when officialdom “encroaches” upon their rights. In September 2018, a bench comprising Justices Lokur, S Abdul Nazeer and Deepak Gupta defended judicial acknowledgment of PILs since the system was not protecting the rights of the marginalised—a ruling that acquires significance in election year.
The same month, it delivered a landmark ruling curtailing the Aadhaar even as it observed that the biometric identity system did not violate the privacy of people. “The Right to Privacy was declared intrinsic part of Article 21 of the Constitution in 2017 and 2018 have seen. Thanks to the SC’s judicial activism, a plethora of rights enshrined in Article 21 have been upheld. It’s heartening to see this happen since the legislature and executive seem to have failed in their duty,” says social activist and lawyer Amit Sahni.
PUBLIC DEFENDER
For decades, India’s Supreme Court has functioned as the supreme activist on behalf of the great Indian public, which has been at the mercy of a skewed socioeconomic power structure. When the social implications of an issue overshadow its political nuances, the courts have acted firmly on behalf of the citizens. September 2018 was a good month for civil rights: the court struck down a British-era law that defined adultery a crime. Another colonial law was overturned when judges lifted an over 150-year-old ban on homosexuality. In November, it set aside a Punjab and Haryana High Court ruling that criticising a judge on Facebook is contempt. The SC has on its own taken up suo moto issues and set up fact-finding committees and panels to ensure that citizens’ rights are protected.
It has been a green champion, cracking down on polluting coal plants and ordering Delhi’s public transport, taxis and autorickshaws are CNG-driven. The anguish of judges comes out in their rulings such as “girls and women are getting raped left, right and centre,” or that lynchings are becoming a “Typhon-like monster”. The SC was called upon to solve Delhi’s mounting garbage crisis that was encouraging epidemics. A newspaper report on the death of a dengue-affected child moved judges to order government agencies work as one to solve the garbage crisis.
“What is the use of passing the orders when no one is bothered to implement it? India will go down under the garbage one day,” fumed one of the justices. The court has been mercilessly chastising the government on various welfare issues. In August, AG Venugopal requested the courts to restrain itself from criticising governance and making rulings without understanding the financial implications of cancellation of 2G licences affecting foreign investments and removal of liquor vends on highways affecting livelihoods. Justice Lokur responded saying the court’s order ensured the government collected over Rs 1,50,000 crore as penalties for illegal mining.
A bench of Justices Lokur, Abdul Nazeer and Deepak Gupta has been hearing petitions on pollution, environment, garbage, overcrowding of prisons, conditions of women and children in jails, shelter homes for children, rehabilitation of widows, illegal mining and others. The court has always acted in the national interest: in August, it put off hearing petitions against the Constitution’s Article 35A to January after the Centre and the Jammu and Kashmir government warned of unrest ahead of the coming panchayat and local body elections.
Advocate Anas Tanvir calls 2018 an incredibly momentous year in the SC. “With regular Constitution benches, it showed its inclination towards the development of jurisprudence. Indeed, it has been overactive, sometimes even encroaching on what could be called executive domain. The government’s failure in curbing mob violence forced the SC to issue guidelines and direct the Centre to come up with legislation. The Sabarimala judgment followed the sacrosanct doctrine of Equality under the law,” he says.
MOMENT OF RECKONING
The biggest trial the SC faces today is the challenge to its authority from organised religion. For the first time in India, political parties accused the court of communal bias. Building the Ram temple at Ayodhya is one of the main poll planks of the BJP, its ideological parent RSS and allies. Many saffron leaders have been demanding a law to facilitate the construction. The official party line is that legislation or even an ordinance is not possible since the matter is pending in court. A bench of CJI Gogoi and Justices SK Kaul and KM Joseph had ordered the date of the hearing to be set in January 2019 since it had its “own priorities”. The government is under pressure from within as well.
At a Parliamentary Committee meeting in late December, BJP MP Harinarayan Rajbhar from UP said, “People should not wait anymore. They did not need any permission in 1992 to demolish the Babri mosque. They don’t need any court order or government permission to build the temple.” VHP has vowed to launch a countrywide agitation and pressure-campaign on MPs by Hindus if the SC’s verdict “goes against their faith”. However, when there is a conflict between religion and rights, the SC takes an unambiguous stance. In September, a 4-1 majority ruling declared that the tradition of barring women from entering the Sabarimala Temple violated Article 25 (Clause 1) and Rule 3(b) of Kerala Hindu Places of Worship, stoking a war between the Left-led state government and the BJP, and escalating to an election plank for later in the year.
The significance of the SC’s guardianship of Indian democracy and its wide spectrum rulings in 2018 are bound to shape the narrative of 2019. In spite of the occasional clouds that have marred the impartial serenity and majesty of justice, the highest judicial body of the country stands as the bulwark of conscience against political pressure, populism and social injustice.with inputs from Kanu Sarda.
TOTAL RECALL
Landmark judgments of the Supreme
Court, 2018
Mar 8: The Hadiya case
Restores the marriage of Hadiya with Shafin Jahan, setting aside a Kerala High Court order that had annulled the validity of the marriage last year. Hadiya, a Hindu girl, had converted to Islam to marry Shafin.
Mar 9: Passive euthanasia legal
Legalises passive euthanasia with guidelines for patients suffering from terminal and irreversible illness. Observes that human beings have the right to die with dignity.
Mar 20: Stringent provisions
of SC/ST Act overturned
Dilutes the stringent provisions of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act 1989. Aiming to curb the misuse of the law and protect honest public servants from arrest, the court holds that an arrest is not mandatory under the Act. Says the accused public servant is entitled to anticipatory bail, and a preliminary inquiry must be conducted by the police within seven days before taking any action against him.
Jul 4: LG vs Delhi govt
Rules in favour of the AAP government in Delhi and says the Lieutenant Governor doesn’t have independent decision-making powers and is bound to act on the aid and advice by its Council of Ministers. The judgment also holds that the LG cannot act as an “obstructionist”.
Jul 7: CJI the master of the roster
Reiterates the Chief Justice is the “master of roster” and he alone has the powers to allocate cases to different benches.
Jul 17: Parliament asked to make law against mob lynching
Condemns the growing incidents of mob lynching and asks Parliament to consider enacting a new law to effectively deal with such incidents. “Horrendous acts of mobocracy”can’t be allowed to become a new norm, the top court says.
Jul 31: No recall of Judge Loya
case judgment
Dismisses a plea by the Bombay Lawyers Association, seeking a review and recall of its judgment that held Special CBI court Judge BH Loya had met with natural death.
Sep 14: Ex-ISRO scientist
vindicated
Awards a compensation of `50 lakh to former ISRO scientist S Nambi Narayanan and holds he was “arrested unnecessarily, harassed and subjected to mental cruelty” in the 1994 espionage case. The court orders a probe into the role of Kerala Police officers in it.
Sep 6: Homosexuality
decriminalised
Rules that gay sex among consenting adults is not a criminal offence, striking down as “unconstitutional” a part of Section 377 of the 158-year-old IPC that criminalised homosexuality.
Sep 26: Aadhaar’s Constitutional validity
Upholds the Constitutional validity of the Aadhaar Act. The court, however, mandates that the 12-digit identifier will not be required for obtaining SIM cards, opening bank accounts, school admissions, UGC, NEET and CBSE examinations. The linkage of PAN cards with Aadhaar remains compulsory.
Sep 26: ‘No’ SC/ST quota for promotions
Rules that there will be no reservation in promotion for Scheduled Caste and
Scheduled Tribes in government jobs.
Sep 27: Adultery decriminalised
Strikes down Section 497 of the IPC, calling it unconstitutional and arbitrary and decriminalised adultery, which remains a “civil offence” and can serve as a ground for divorce.
Sep 27: The Ayodhya verdict
Declines to refer to a five-judge Constitution bench the issue of reconsideration of its 1994 observations that a mosque was not integral to Islam that arose during the hearing of Ayodhya land dispute.
Sep 28: Women’s entry into
Sabarimala Temple
Allows women of all age groups to enter the temple of Lord Ayyappa at Sabarimala in Kerala and offer worship, contrary to the practice that did not allow women of menstruating age (10 to 59 years) to enter the shrine.
Oct 23: ‘Green crackers’ for Celebrations
Ahead of Diwali, allows licenced traders to sell crackers, and that too eco-friendly only. It puts a ban on the sale of firecrackers online and allows people to burst crackers only between 8 pm and 10 pm on Diwali and between 11.45 pm and 12.30 am on Christmas Eve and New Year.
Dec 14: No Rafale probe
Dismisses all the petitions that had sought a court-monitored probe into the multibillion-dollar Rafale fighter jet deal with France. The apex court says no Rafale probe was required.