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Last Updated : Dec 25, 2018 07:57 AM IST | Source: Moneycontrol.com

Digging Deeper: The biggest Supreme Court judgments this year

This year, some major judgments by the Supreme Court of India evoked reactions that veered between joy, despair, anger and incredulity.

Moneycontrol News @moneycontrolcom

“Injustice is relatively easy to bear; what stings is justice," so said American journalist, essayist, satirist and cultural critic, H.L. Mencken.

This year, some major judgments by the Supreme Court of India evoked reactions that veered between joy, despair, anger and incredulity.

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And the figureheads who played pivotal parts in issuing some landmark judgments made as much news as their verdicts. (That infamous press conference, anyone? The appointment of Justice KM Joseph, anyone?) We could talk about Dipak Misra who saw through some major judgments in his final weeks as a Chief Justice (in addition to all the flak he rightly received) and Justice Dhananjaya Yeshwant Chandrachud, who was often hailed as a champion of dissent and occasionally critiqued for not going all the way to break away from predictable patterns, but sadly, their trajectories are stories for another time.

On this episode in our yearend roundup podcast series, we will focus simply on the waves that the powers that be at the Supreme Court made in 2018. My name is Rakesh, and you are listening to Digging Deeper with Moneycontrol.

1.Declaration of section 377, the penal provision which criminalised gay sex, as "Manifestly arbitrary"

In a truly empowering judgment, on 6 September 2018, (put differently, on 6/9), the Supreme Court decriminalised homosexuality.

This was a long walk to dignity for the LGBTQIA+ community in India and it ended triumphantly when the five-judge SC bench declared Section 377, the penal provision which criminalised gay sex, as “manifestly arbitrary.” The SC bench further declared that victimising homosexuals is unconstitutional, and henceforth, a criminal act. It even asked for better representation of LGBTQIA+ individuals in the media, and suggested that police be given sensitisation training. Wah!

You will remember that the archaic, 158-year-old colonial law or Section 377 dating back to 1861, referred to gay sex as an 'unnatural offence' and stated that anyone who voluntarily has gay sex would be punished by up to ten years in jail. The law further dehumanised homosexuality by defining 'unnatural offences' as “carnal intercourse against the order of nature with any man, woman or animal.” The law undermined not just the dignity of the LGBTQIA+ community but also facilitated its persecution and harassment. (Especially of the trans- community.)

Hence Chief Justice Dipak Misra's statement that the LGBT community has the same rights as any ordinary citizen, that respect for individual choice is the essence of liberty, and that the LGBT community possesses equal rights under the Constitution, fulfilled the long cherished aspirations of a criminally marginalised community with poetic justice. “Unapprehended felons” no more!

The process of hearing petitions against the ban had begun in the Supreme Court in July and was rooted in the ideas of individual freedom and the fundamental right to privacy.

Apart from evoking uproarious approval nationwide, the judgment was also hailed by Amnesty International India as a ray of hope for everyone fighting for justice and equality. Asmita Basu, Programmes Director, Amnesty International India said that the judgment closed the door on a dark chapter of Indian history. And that it marked a new era of equality for millions of people in India. The judgment was also welcomed by The UNAIDS (United Nations Programme on HIV/AIDS),LGBT activists, The United Nations, and organisations like the Human Rights Watch.

The judgment has uplifting keynotes stating that sustenance of identity is the pyramid of life and that majoritarian views and popular morality cannot dictate constitutional rights. And finally that, to deny the LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. The SC bench also unequivocally stated that homosexuality is not a mental disorder and that autonomy of an individual is important and cannot be surrendered to anyone.

The ban on gay sex had been challenged by five high-profile petitioners. Bharatnatyam dancer Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, Neemrana hotel chain co-founder Aman Nath and businesswoman Ayesha Kapur.

The march ahead – marriage equality, property rights, etc – is a long and arduous one. But the first step has now been taken, and here’s hoping that the pace does not flag.

2. The Sabarimala verdict

As we stated on a previous piece on Moneycontrol, “Women's bodies have been treated as battlefields for as long as we can remember. Regardless of cultural and religious contexts, a woman is hardly, if ever, more than an interpreted idea of purity and impurity and is often summed up as goddess or mother or a destructive, dark force that must stay within boundaries so that she can be controlled.”

We said more: “All religions exclude women from positions of power and when politics, faith and religion get mixed up, the results are explosive. In India, as the #Metoo upheaval rages across our news feed, and crimes against women spiral out of control, somehow, the headline of the day is whether women of menstrual age will be allowed into Sabrimala by the protesting devotees.”

On September 28, signalling an end to a centuries-old tradition, the Supreme Court ruled that women, irrespective of age, can enter Kerala’s Sabarimala temple. As reported by multiple news sources, the five-judge Constitution bench, headed by the then Chief Justice of India Dipak Misra, said that the provision in the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which authorised the restriction, violated the right of Hindu women to practice religion. It also said that patriarchy in religion cannot be allowed to overshadow the right to pray.

Sporadic petitions over the years have challenged the ban, which was upheld by the Kerala High Court with the HC ruling that only the “tantri (priest)” was empowered to decide on traditions. Petitioners, including Indian Young Lawyers Association and Happy to Bleed, had argued in court that the tradition is discriminatory and stigmatised women and curtailed their fundamental right to pray at a place of their choice.

But, as we have seen often, sometimes even the law cannot alter religious perceptions. In October, when the temple was scheduled to open for devotees post the SC judgement, tension remained rife in Kerala at Nilakkal, the main gateway to Sabarimala, after police personnel dispersed protestors opposing the entry of girls and women of menstrual age into the shrine.

The verdict caused, as we have reported before, a few thousand detractors to protest across Kerala and call the verdict an affront to their traditional beliefs. As tensions mounted, the police reportedly removed a makeshift shelter erected by Sabarimala Achara Samrakshana Samiti that had organised a sit-in to chant Ayyappa mantra to protest against the Supreme Court order permitting women of all age groups to enter the shrine.

The protestors also tried to block buses near the key entry point to the temple.

We quote from our earlier report, “We can read this conflict as a literal gender war but what complicates the issue is that even a large number of women are against women entering the shrine and this just goes to demonstrate once again how strong and almost intractable the grip of religion is upon our collective psyche that it even challenges constitutional notions of equality.”

As Firstpost pointed out, of the five honourable justices who delivered the Sabarimala verdict, the only dissenting voice was that of the lady on the bench. Her reason, said the piece, for doing so was more about religious freedom. She said courts must not interfere with issues concerning “deep religious sentiments, except in cases like sati, which is clearly a social evil.”

As per reports, several devotees, a large number of them women, blocked buses, cars and pulled out women asking them to go back.

Amid this ideological and literal battlefield, MP Subramanian Swamy took a vociferous stand by backing the SC decision and was cited in reports as saying, “Supreme Court has made a decision, but now you are saying that it's our tradition. Triple Talaq was also a tradition in that way, everybody was applauding when it was abolished. The same Hindus have come to the streets now. It's a fight b/w Hindu Renaissance and obscurantism. Renaissance says all Hindus are equal and caste system should be abolished. Because no Brahman today is only intellectual, they're in cinema,business as well. Where is it written that caste is from birth?Shastras can be amended."

The tribal voice which is usually unheard in political conflicts has been extensively quoted this time as tribals living in the hills around Sabarimala believe that the government and the Travancore Devaswom Board were trying to demolish centuries-old customs. Four review petitions have already been filed against the Sabarimala judgement.

Political parties were not to be left behind in trying to milk the judgment for optimum benefit.

Even as the Kerala government struggled to abide by the Supreme Court's decision, both BJP and Congress were busy stirring the pot of controversy.

As Kerala CM Pinarayi Vijayan said, “The Congress has joined the BJP in trying to drive a wedge between the devotees and the government and they are trying to break the secular tradition of our state.”

Malayalam actor Kollam Thulash ‘helped’ the situation in his own unique manner by saying that “Women in the restricted age group who visit the Lord Ayappa Temple should be ripped apart.” (Daivame!)

As Firstpost rightly pointed out, even the Supreme Court judgment cannot ease women into a stringently forbidding shrine where even unisex toilets and other supportive facilities are conspicuously inadequate.

Just as the tide of gender crimes against women cannot be stemmed just by formulating laws that fall by the wayside when confronted by ground realities, a verdict, regardless of its progressive intent can only do so much to grant women their full humanity. The notions of purity and impurity in the meanwhile continue to dictate where women and their bodies can go and not go.

3.The Aadhaar judgment

As we mentioned in an earlier podcast, 'Aadhaar' in  Hindi literally means 'foundation' and your Aadhar card with its 12-digit unique identity number based on your biometric and demographic data, is meant to serve just that function – to work as your ultimate calling card. However, somewhere along the way, banks and mobile companies invited themselves to the party and to your data.

This is where the Supreme Court verdict about Aadhaar stepped in to change the narrative.

On September 26, a five-member constitution bench of the Supreme Court led by Chief Justice Dipak Misra ruled that while the Aadhaar Act doesn’t violate your right to privacy when you agree to share biometric data, private entities would be barred from using Aadhaar card for KYC authentication purposes. However, Aadhaar was still needed for various other purposes including PAN card and ITR filing. Banks and mobile companies are no longer allowed under any condition to continue to do Aadhaar e-KYC since the Supreme Court has clearly struck down parts of Section 57, and we repeat, categorically, barred the use of Aadhaar biometrics data by private entities.

The SC also cut out the white noise that private entities created around the card by striking down many irrelevant things related to the Aadhaar card linkage.

Even if a customer is willing and gives his or her consent to a private entity to use Aadhaar, the card can only be used as an ID or address proof like other documents in the manner of a voter's card, driver’s license or a ration card. The key point here is that biometric verification or e-KYC is out of the question as it would impinge upon the Right to Privacy of such individuals.

In the Aadhaar judgement, the apex court specified as reported by many media agencies that Section 57 in its original form was susceptible to misuse and we quote news sources:

  1. a) It can be used for establishing the identity of an individual ‘for any purpose’. We read down this provision to mean that such a purpose has to be backed by law. Further, whenever any such “law” is made, it would be subject to judicial scrutiny.

  2. b) Such a purpose is not limited pursuant to any law alone but can be done pursuant to ‘any contract to this effect’ as well. This is clearly impermissible as a contractual provision is not backed by a law and, therefore, first requirement of proportionality test is not met.

  3. c) Apart from authorising the State, even ‘any body corporate or person’ is authorised to avail authentication services, which can be on the basis of purported agreement between an individual and such body corporate or person.


 Even if we presume that legislature did not intend so, the impact of the aforesaid features would be to enable commercial exploitation of an individual biometric and demographic information by the private entities.

 Thus, this part of the provision, which enables body corporate and individuals also to seek authentication, that too on the basis of a contract between the individual and such body corporate or person, would impinge upon the right to privacy of such individuals. This part of the section, thus, is declared unconstitutional.

 Section 33(2) of the Act has been struck down, which allowed identity and authentication data to be disclosed in the interest of national security on the direction of an officer, not below the rank of Joint Secretary to the Government of India.

As Financial Express reported, on the other end of the spectrum is the stipulation that Aadhaar can only be demanded by government agencies for subsidies granted by the government .

The first noticeable after-effect of the judgment was that on October 1, the Unique Identification Authority of India (UIDAI) directed telecom companies to submit a plan to stop using the 12-digit unique ID number for customer authentication in 15 days. As PTI stated, a circular in this respect was issued to the telecom service providers (TSPs), including Bharati Airtel, Reliance Jio, Vodafone Idea and others.

As Kush Garg wrote in Times of India on September 30, the Supreme Court verdict and the subsequent directive by UIDAI came after more than half a billion bank accounts were linked with Aadhar post a massive advertising campaign to make India ‘digital.’ And pensioners, individuals, retired army officials rushed to link their accounts when they were threatened that their accounts would be closed. A deadline was set and many bank accounts were closed due to not linking the Aadhaar card, recalls Kush.

We have reported earlier that amid this panic, security breaches and irregularities became de rigueur and school admissions were denied! Starvation deaths were reported because unlettered consumers could not furnish an Aadhaar card. In August, according to the data released by the Right To Food (RTF) advocacy group, 14 people died of starvation in Jharkhand over a span of 10 months because in the absence of an Aadhaar card, they could not benefit from Antyoday Anna Yojana (AAY), the food ration scheme meant for the poorest of poor in India. This was of course refuted by the Jharkhand government.  Before the SC verdict, a new SIM card could be purchased with the help of Aadhaar, and many consumers discarded old SIM cards because they were not linked to Aadhar. Dire warnings from banking and telecom companies flooded inboxes.

The verdict came as a relief but there were a few grey areas that confounded consumers.

For instance, if Aadhaar is not mandatory for opening a bank account and a PAN card is mandatory for opening a bank account and Aadhaar is mandatory for the issuance of a PAN card than what exactly is being achieved in the process?  Is this not an indirect way of forcing people to part with their sensitive private data? Adding to the confusion is also the directive that PAN and Aadhaar are mandatory for filing tax returns.

Some twitter handles also pointed out the irony of negating the need for Aadhaar for a SIM card or a new bank account but making it mandatory for those who need something as basic as rice from the government to subsist on a daily basis .

There was unmitigated approval of the fact that the verdict empowers people to seek removal of their personal information from the records of telecom, banking, mutual funds and insurance firms that had earlier demanded biometric authentication.

Another concern that has been expressed repeatedly is just why is this level of surveillance needed for ordinary citizens when the financial dealings of all political parties remain locked in secrecy. This question too continues to exist unattended like the proverbial elephant in the room.

As DNA reported, the lone dissenting voice here was that of Justice Chandrachud who raised concerns over the false fait accompli and has held the Aadhaar project to be unconstitutional. He strongly doubted the methodologies adopted by the UIDAI with respect to biometric data and its linkage to the distinct data base which has the potential to alter the power structure that upholds the relationship between citizens and the State. He has rightly cautioned against the risk of abuse of data and how it can be a blow to individual liberty and privacy.

As the DNA piece asked, “...just how much privacy can be given up? How transparent do we want to be? How much do we want our government to watch us? How much risk, in terms of internal and external security, are we willing to accept as the price for our privacy? How do we measure that risk, and how do we know that by giving up a certain level of privacy, we are safer?”

Regardless of the merits of any project, as the DNA piece conveys, coercion by the state in any form is unhealthy and the social, political and economic motivations behind the project should have been subject to intense parliamentary scrutiny.

The focus, says the piece, needs to shift from mere data-gathering to data protection and usage. Whether or not that transition will be made successfully in the future for the benefit of all citizens, is something that will only unfurl with time.

4.The decriminalisation of adultery

On September 27, a five-judge bench of the Supreme Court struck down Section 497 of the Indian Penal Code (IPC), and decriminalised adultery in India which remains a “civil offence”, and can serve as a ground for divorce. As one Supreme Court advocate wrote in The Hindustan Times, “The judgment is important not simply because it got rid of an archaic and patriarchal law, but also because of its consequences for the future.”

As HT points out, Section 497 of the IPC — part of the British-enacted penal code of 1860 — criminalised adultery, but did so “asymmetrically”: that is, only the man — and not the woman — who engaged in adultery could be punished. Moreover, only the husband could bring a prosecution for adultery; but he would have no case if he had “consented” or “connived” in the adulterous act.

HT again: “This set of bizarre conditions together constituted a near-perfect storm of patriarchy. The husband being authorised to bring a prosecution against the “other man” (but not if he “consented” to the relationship) smacked of the belief that, on marriage, ownership over a woman’s body passes from her father to her husband. The woman has no independent personality but is, instead, subsumed into the personality of her husband, for the purposes of law and for society. And exempting the adulterous wife from criminal proceedings — although seemingly a benefit to her — was nonetheless based on the idea that it is the man who is the seducer, and it is the woman who is sexually submissive, and lacking agency in a relationship (and hence, the asymmetry: you cannot punish someone for something they are not responsible for). Both these presumptions were staple features of Victorian law and morality, which was the basis of the Indian Penal Code of 1860.”

The Constitution Bench that unanimously struck down the section as unconstitutional consisted of the Chief Justice, RF Nariman, DY Chandrachud, and Indu Malhotra and they established that the gender stereotyping in prevailing laws violates Article 14 of the Constitution (equal protection of laws), and also Article 15(1) (non-discrimination on grounds of sex). The exemption of women from criminal liability, as the HT piece points out, was not a benefit, but rather, part of a broader set of presumptions that effectively caged and limited them.

HT: “But the court also went one step further: it also held that adultery could not be criminalised at all. The court held that subjecting interpersonal relationships (where there was no violence) to the rigours of criminal law would amount to an unwarranted intrusion into the right to privacy. Therefore, the legislature could not respond to the judgment by passing a fresh, gender-neutral adultery offence: that, too, would be unconstitutional, this time under Article 21 of the Constitution.”

This judgment, says the aforementioned advocate, could also pave the way for the reconsideration of other archaic laws like the restitution of conjugal rights (which allows a court to “direct” one spouse who has left the company of the other spouse to return, even against her will), and the marital rape exception (which states that rape within a marriage does not count as rape for the purposes of criminal law).

5. When SC said 'No' to an SC/ST quota for promotions 

On September 26, The Supreme Court ruled that there will be no reservation in promotion for Scheduled Caste (SC) and Scheduled Tribes (ST) in government jobs. The court held that the presumption of backwardness of SC and ST employees “vanishes” once they join government service.

However Faizan Mustafa, VC, NALSAR University of Law, Hyderabad, stated in The Tribune, that the SC/ST reservation is fundamentally based not on backwardness but on untouchability and historic discrimination that have not yet been fully removed as is evident from cases of atrocities against SCs and STs and some 11,000 or so complaints of discrimination in just promotions with SC/ST commissions.

He cited inadequacy of representation as one of the reasons why the SC/ST exclusion from the creamy layer in absence of reservation is not a good idea.

We quote. “Unfortunately, the court overlooked the fact that nowhere in the world reservation policies are linked to the economic status of beneficiaries. Even in India we have horizontal reservation for women and persons with disability but we do not exclude the creamy layer in these reservation categories. SC/ST reservation is fundamentally based not on backwardness but on untouchability. Unlike some castes included in OBC list, no SC/ST caste has political power, social domination and higher economic status.

Since the creamy layer exclusion will not happen at the initial appointments but only for promotions, there is a contradiction as to why unequals be given any benefit even at the initial stage of recruitment. In several sectors, including banking which has five or more scales, the benefit of reservation cannot be given anymore beyond the probationary officer rank.”

He further says that the judiciary has not been a keen supporter of reservation and, therefore, in a number of cases, in the name of 'merit', it has tried to put restraints on the state's power to make reservations, i.e., excluding promotions from reservation, catch-up rule, creamy layer etc. We quote, “Even the so-called sacrosanct 50 per cent upper limit of reservation rule invented by the Supreme Court overlooks the ground reality that more than 75 per cent of our population consists of SC/ST/OBC. Thus, in effect, 25 per cent general candidates have 50 per cent seats allotted to them. The latest order is no exception to the court's disapproval of reservation policies.”

As we said before, justice is a mixed bag and no law has a one size fits all appeal in a socially and economically diverse country like India.

6. The Bhima Koregaon verdict

On September 28, the Supreme Court extended the house arrest of the five activists arrested by the Pune police in connection with the Bhima Koregaon violence. It also refused to constitute a Special Investigation Team (SIT) to conduct a court-monitored inquiry. On October 29, the Supreme Court stayed the Bombay High Court order refusing the Maharashtra police a 90-day extension to complete its investigation against activists who were accused of Maoist links in the aftermath of caste-related violence in Bhima Koregaon village, Pune district.

The five eminent academics who had petitioned the Supreme Court seeking that the activists be released were historian Romila Thapar, economist Prabhat Patnaik, sociologist Satish Deshpande, former director of the Commonwealth Human Rights Initiative Maja Daruwala and economist Devaki Jain.

As is common knowledge, on 28 August, the Pune police arrested five prominent activists—Sudha Bharadwaj, Gautam Navlakha, Vernon Gonsalves, Arun Ferreira and Varavara Rao.

While the majority judgement, authored by Justice AM Khanwilkar for himself and Chief Justice Dipak Misra, held that it was not a case of arrest for dissent, Justice DY Chandrachud dissented from the majority to say that the arrests were without any basis.

The court also said that the activists have the liberty to pursue other legal remedies.

On 28 August, as we reported earlier, the news media was abuzz with the news of the Pune police conducting coordinated raids across the country on the homes of 10 activists, arresting five of them. The news was presented in the context of two suggestions: the first was that the arrests were made in connection with an alleged plot to assassinate Prime Minister Narendra Modi. The second was that the raids were linked to investigations into violence that occurred at Bhima Koregaon near Pune on January 1.

The crackdown on Sudha Bharadwaj, Gautam Navlakha, Vernon Gonsalves, Arun Ferreira and Varavara Rao and raids on the residences of Father Stan Swamy, Susan Abraham, and Anand Teltumbde followed the 6 June arrests of advocate Surendra Gadling, English professor Shoma Sen, writer Sudhir Dhawale, forest rights activist Mahesh Raut, and prisoners rights activist Rona Wilson in Maharashtra.

The Pune Police claims that the examination of those detained revealed their links to Maoists, which necessitated the recent raids and arrests. An assassination plot, as we said before, targetting the Prime Minister was also supposedly in the mix.

Even before the arrests, phrases like urban naxals, half-Maoists, anti-nationals and tukde tukde gang had been repeated ad infinitum by certain news outlets (looking at you, ArGos) and had resulted in widespread mistrust of dissenters even though the basis on which such labels were issued has been refuted sometimes even by the court of law.

As for the actual events at the Bhima Koregaon rally near Pune in January this year, they have almost been forgotten amid the noise of paranoia.

Post the arrests on August 28, that were based on the claim that the arrested individuals had links to the outlawed Communist Party of India (Maoist), the cops have defended their crackdown, claiming, as we told you before, that they had strong evidence against the arrested activists.

At the base of all the press statements made by the Maharashtra Police is that ‘Maoists and Maoist-sympathisers’ instigated Dalits to riot at Bhima Koregaon through their anti-State songs at Elgar Parishad, a programme organised by individuals and organisations in Pune on 31 December, 2017.

At the crux of the whole conspiracy theory is the Elgar Parishad programme organised by 250 individuals and organisations that gathered under the umbrella of what was termed as an anti-fascist front. Among the participants were the likes of Dalit leader Jignesh Mevani, Radhika Vemula, the mother of the late Rohith Vemula , Prakash Ambedkar and JNU student Umar Khalid. Over 5,000 people attended and this was the event that attracted much speculation even though the Elgar Parishad was given permission by the police and nothing objectionable had been reported at the event nor was any police report filed against any of the speakers immediately.

In his dissenting opinion, Justice Chandrachud criticised the Maharashtra Police for holding a press conference to air conspiracy theories even when the case was in the apex court, adding that the press briefing created a doubt about the impartiality of the police. Justice Chandrachud has held that a Special Investigation Team must be set up to probe the Bhima-Koregaon violence.

 

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First Published on Dec 25, 2018 07:57 am
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