On the second part of this Moneycontrol Deep Dive podcast, we will go over some more judgments by the Supreme Court this year that broke away from normative ideas about life, death, and even nationalism.
The Supreme Court of India has seen an interesting 2018. It began rather dramatically for the apex court - four of the senior-most judges of the court held a press conference. It might sound like a setup to a lawyer joke, but the punchline was not funny. It was dead serious. Justice Chelameswar, speaking for himself and Justices Ranjan Gogoi, MB Lokur, and Kurian Joseph, said, "The administration of the Supreme Court is not in order," and that "unless this institution is preserved, democracy will not survive in this country."
Their main contention was regarding the allocation of cases by then Chief Justice Dipak Misra. A letter the Justices wrote to the CJI read, "There have been instances where cases having far reaching consequences for the nation and the institution have been assigned by the chief justices of this court selectively to the benches ‘of their preference’ without any rational basis for such assignment. This must be guarded against at all costs."
This press conference, this "extraordinary event in the history of any nation," as Justice Chelameswar himself put it, marked the beginning of what was to be an eventful year in the life of the top court of the country. Since then, the court has seen a new Chief Justice (Ranjan Gogoi); the logjam on appointments to the higher judiciary appears to have improved; and along the way, several groundbreaking verdicts delivered.
Religion, politics, and law often make for strange bedfellows, and this year, as we saw post the Supreme Court verdict about allowing women of all ages into the Sabarimala temple, the three intersected sometimes in a combative manner and left behind inconclusive debates.
But this year was also about individual choices and even the freedom to exercise the constitutional right to passive euthanasia.
On part 2 of this Moneycontrol Deep Dive, we will go over some more judgments by the Supreme Court this year that broke away from normative ideas about life, death, and even nationalism. Listen on to discover just what we mean by this statement. Let us list out a few verdicts that underscore our point.
SC permits passive euthanasia
On 9 March 2018, the Supreme Court legalised passive euthanasia by means of the withdrawal of life support to patients in a permanent vegetative state. The face of the euthanasia debate was Aruna Ramchandra Shanbaug , a nurse who in 1973, was working as a junior nurse at King Edward Memorial Hospital, Parel, Mumbai, when she was sexually assaulted by a ward boy, Sohanlal Bhartha Walmiki.
Her life was brutally impaired and she remained in a vegetative state for over 42 years. On 24 January 2011, after she had been in this state for 37 years, the Supreme Court responded to the plea for euthanasia filed by journalist Pinki Virani and set up a medical panel to examine her. The court rejected the petition on 7 March 2011.
Shanbaug died of pneumonia on 18 May 2015 and become a collective twinge of conscience not just because our law and order system had failed her but because so had our sense of empathy for a woman who had not just been robbed of a full life but the right to die with dignity after being in a Persistent Vegetative State (PVS) longer than she needed to be.
On 9 March 2018 finally, the SC allowed passive euthanasia in India in a landmark judgment and the decision was made as part of the verdict in the Aruna Shanbaug case to make it legal for a terminally ill individual to decline use of life support measures. The court also allowed families of those in incurable coma to withdraw such measures to reduce the period of suffering.
It also recognised the right to an “advance directive” (also called living will), spelling out views and wishes regarding medical treatment in terminally ill situations.
A distinction was made via the Aruna Ramchandra Shanbaug vs Union Of India & Ors (March 7, 2011), case , between “active” and “passive” euthanasia.
A five-judge Constitution Bench headed by then CJI Dipak Misra, ruled that “smoothening” the process of death for terminally ill patients with no chance of recovery was integral to life with dignity.
The Hindu broke down the fine details of the verdict thus.
While guidelines prescribed by the Supreme Court upheld passive euthanasia and ‘Living Will’, they placed a huge burden on the treating physician and hospital.
We quote from The Hindu, "For one, the responsibility is on the treating doctor to ascertain the “genuineness and authenticity” of a Living Will of a terminally ill patient from the Judicial Magistrate in whose custody the document is kept.
Once satisfied that there is no cure, the doctor should give due weight to the instructions left by the patient in his or her Living Will. After the doctor decides that the Living Will needs to be “acted upon”, it is his responsibility to convey to the guardian or close relative the medical condition, the availability of care and consequences of alternative forms of treatment and the consequences of remaining untreated. It is again up to to the doctor to ascertain that the relative or the guardian has understood the situation and come to the “firm view” that withdrawal of medical treatment is the “best choice.”"
The piece goes on to explain that the physician or the hospital concerned has to then constitute a Medical Board consisting of the head of the treating department and at least three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and a standing of 20 years in the profession. They will have to visit the patient and release a preliminary opinion on whether or not to withdraw treatment as per the Living Will.
Says the piece, "In case the Medical Board decides not to follow a Living Will, it can apply to the District Collector concerned. In case it supports the Living Will, the doctor or the hospital has to “forthwith” inform the District Collector, who will also form a Medical Board with the Chief District Medical Officer as Chairman for endorsement of the decision.
They too shall visit the hospital and would have to endorse the endorse the Living Will. The Chairman of this Medical Board would then convey their decision to the jurisdictional JMFC before giving effect to the decision to withdraw the medical treatment. The Magistrate shall also visit the patient and finally authorise the implementation of the decision of the Board. The procedure is the same even for those who do not have a Living Will."
The court gives the treating doctor even a right to move the High Court, along with the dying person's relatives or guardian, in case the Medical Board revokes permission for passive euthanasia.
In such a case, says The Hindu, the high court is free to form an independent committee of doctors to re-look the case and take a decision. Once the treatment is withdrawn, the Magistrate has to inform the high court.
The court also gives an individual the right to withdraw or alter his Living Will, but only in writing.
The Living Will however shall not be applicable to the treatment in question if there are “reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the advance directive and which would have affected his decision had the anticipated them”.
Live-streaming of court proceedings
Legal proceedings in India remain largely indecipherable and inaccessible to citizens not just because of the intimidating jargon involved but also because there is little or transparency. Well, enter the SC to change that and to herald more transparency in the functioning of the judiciary. The Apex Court this year, said a big, hearty 'yes' to live-streaming of court proceedings, saying that this will bring more accountability and enhance the rule of law.
A three judge bench headed by then CJI Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said and we quote: “We hold that the cause brought before this court by the protagonists in larger public interest deserves acceptance so as to uphold the constitutional rights of the public, and the litigants in particular.”
On September 26, 2018, the Supreme Court argued for greater transparency in the judicial system by approving the live-streaming of court proceedings of cases of constitutional importance. The court also directed the centre to frame rules and indicated that this ambitious undertaking would be carried out in phases.
“It will encourage the principle of open court, effectuate the public’s right to know and reduce dependence on second-hand views,” said Justice D.Y. Chandrachud.
The suggestions included the setting up of a television channel for live-streaming court proceedings along the lines of Rajya Sabha TV.
Mindful of personal privacy, reservations were expressed about the live-streaming of certain sensitive cases.
A bench was responding to petitions, including one by senior advocate Indira Jaising, seeking live-streaming of all cases, specifically ones of constitutional and national importance having an impact on the public.
Jaising argued that live-streaming and videography of the proceedings at the SC would make matters of great public importance accessible to citizenry and to ensure that justice is not only done but is seen while it is being done.
The petition argued that this would rekindle confidence and respect in and for the judiciary as a co-equal organ of the state and that those affected by the judgements of the court had a right to be aware of the manner in which decisions were taken.
As Mint put it, the petition referred to courts dealing with issues of environment, triple talaq, air pollution, ban on liquor sales near to national highways, ban on firecrackers and extra judicial killings, all of which affect the public who, however, do not get to see how decisions are made by the court.
We quote, "Enabling citizens to understand the reasoning in cases affecting their rights formed part of their right to dignity and was an intrinsic value of their right to be heard under Article 21 (Right to Life) of the Constitution, the petition said.
The petition also pointed out that other countries and jurisdictions such as Canada, Australia, the UK, New Zealand, South Africa, the European Court of Human Rights and the International Criminal Court, permit varying degrees of recordings of court proceedings."
Well, the supreme Court has opened its doors to scrutiny and to what extent the suggestions are carried out, will unfold in time.
SC delivers the Cauvery dispute verdict
On February 16, 2018, pronouncing its verdict on the festering Cauvery dispute, the Supreme Court increased Karnataka’s share of the Cauvery waters by 14.75 thousand million cubic feet, raising it from 270 tmc ft awarded by the Cauvery Water Disputes Tribunal in February 2007 to 284.75 tmc ft.
The court also directed Karnataka to provide Tamil Nadu with 177 tmcft of Cauvery water.
The bench comprising Chief Justice Dipak Misra and Justice AM Khanwilkar and Justice DY Chandrachud had on 20 September, 2017 reserved the verdict on the appeals filed by Karnataka, Tamil Nadu and Kerala against the 2007 award of the Cauvery Water Dispute Tribunal (CWDT) on sharing of water.
Water sharing has always been a heated issue between the two states and security was scaled up in both Tamil Nadu and Karnataka ahead of the verdict in anticipation of clashes.
Has the SC decisively settled a dispute that dates back to 1892? Well, we can't say but it has for now said its piece about a seemingly insolvable dispute.
As you know, the 802-kilometre-long Cauvery river is the largest river basin in South India, originating in Talacauvery in Karnataka's Kodagu district.
The Cauvery dispute, as a Firstpost piece informs, began in the year 1892, between the Madras Presidency (under the British Raj) and the Princely state of Mysore (as Karnataka was known then) when they had to come to terms with dividing the river water between the two states.
We quote, "Since then, Cauvery river water has been a bone of contention between the two states. In the year 1910, both states started planning the construction of dams on the river. The issue was presided upon by the British who also decided which state would receive what share of the water. In 1924, an agreement was signed between the two states where the rules of regulation of the Krishnarajsagar dam were pointed out."
As Mint points out, the two accords stated that existing irrigation should not be hindered by constructing new dams upstream (in Karnataka) and that irrigation should be impacted downstream. What it also said was that all works planned must be agreed to by the states located downstream (in this case, Tamil Nadu).
According to the 1892 and the 1924 agreements the river water was distributed as follows: 75 percent with Tamil Nadu and Puducherry, 23 percent to Karnataka and the remaining with Kerala.
However, informs Firstpost, Karnataka did not implement these agreements. Protests kept simmering over the which state gets how much of the Cauvery water through the pre-Independence and post-Independence years.
Hindustan Times states that things became complex post 1956 following the re-organisation of states.
The sixties were particularly combative with Tamil Nadu strongly objecting to Karnataka building two dams on the Cauvery river. Five rounds of talks to resolve the dispute also failed, according to Outlook.
To complicate things, Tamil Nadu, reports Firstpost, also built the Mettur dam.
The state, says the piece, developed vast tracts of agricultural land around the river and in 1972, the Centre agreed to appoint a committee to collect statistics from each of the states that had the river basin — Kerala, Tamil Nadu and Karnataka. The fact-finding committee found that while Tamil Nadu used 566 tmcft (thousand million cubic feet), Karanataka used 177 tmcft.
We quote, "In 1974, Karnataka claimed the 1924 agreement allowed the state to discontinue water supply from the Cauvery to Tamil Nadu after 50 years. It argued that since the river originated in its territory, the state had the right to use its waters as it wished. Karnataka also said that British-era agreements favoured Tamil Nadu and were not bound by a British Raj deal brokered between the British empire and the Maharaja of Mysore."
In 1976, recalls the piece, the states arrived at an understanding that each state would continue using the water according to their previous usage, only now an additional 125 tmcft water would also be saved and shared.
Karnataka argued that the river water should be divided in equal portions and that 94 percent could be divided equally between them and the rest could be distributed to Kerala and Puducherry. Hence while Tamil Nadu wanted to adhere to the 1892 and 1924 agreements, Karnataka refused to toe the line.
Through the 1980s and the 90s, the water dispute continued to simmer to a boiling point and then occurred the formation of the Cauvery Water Disputes Tribunal (CWDT) in 1990. In 1991, the tribunal calculated the average inflows into Tamil Nadu over 10 years — between 1980 and 1990. And as Firstpost reports, it directed Karnataka to ensure that 205 tmcft reached Tamil Nadu every year. They also directed Karnataka not to increase irrigated land area from the existing measure.
We quote, "However this decision was not well received by the people of the two states which simultaneously erupted into riots. The Karnataka government rejected the tribunal award and sought to get it annulled. However, the Supreme Court struck down the ordinance and asked for the tribunal award to be upheld. Karnataka refused to oblige.
Following this, the interim award was published in the Government of India gazette.
The next few years saw enough rain for the states to not create an uproar. In 1993, Tamil Nadu's former chief minister Jayalalithaa went on a sudden fast at the MGR memorial in Chennai. She demanded Tamil Nadu's share of water as stipulated by the interim order.
In 1998, the Cauvery River Authority (CRA) was formed with the prime minister (PV Narasimha Rao) presiding as the chairperson and the chief ministers of the four states as members."
So as is obvious, that melodrama that has swirled around the issue has been prolonged, and CWDT pronounced the final award in 2007 after nearly 17 years. We quote, :The tribunal held valid the agreements of 1892 and 1924 executed between the erstwhile governments of Madras and Mysore. The tribunal allocated the river water as follows: 419 tmcft to Tamil Nadu; 270 tmcft to Karnataka; 30 tmcft to Kerala (as a tributary of Cauvery flows through it) and 7 tmcft to Pudducherry."
But this created an uproar in Karnataka and the state marked its protest with a state-wide bandh.
In 2013, the Centre notified the final award of the CWDT. The government was mandated to constitute the Cauvery Management Board (CMB) with the gazette notification of the final award of the tribunal.
Hindustan Times and multiple new sources recall how in 2016, the Tamil Nadu government moved the Supreme Court stating that the 2007 tribunal verdict was erroneous as it did not take into consideration its multiple cropping season. While state demanded 20,000 cusecs of water per day, Karnataka offered to release just 10,000 cusecs.
Says Firstpost, "The apex court finally ordered Karnataka release 15,000 cusecs of water per day for 10 days, which it later reduced to 12,000 cusecs. This led to outbreak of protests in Bengaluru and across Mandya, Mysore and Haasan districts in Karnataka."
And The New Indian Express reported that before reserving its judgment, the Supreme Court pulled up the Centre for not implementing the final CWDT award and for not forming the Cauvery Management Board.
To repeat once again, in its verdict, the Supreme Court told Karnataka to release 177.25 thousand million cubic feet of Cauvery water per year to Tamil Nadu from its inter-state Biligundlu dam. Tamil Nadu will now get 404.25 tmcft of Cauvery water instead of the 419 tmcft allotted by the Cauvery Water Disputes Tribunal in 2007. The court also increased the water allocation for Karnataka by 14.75 tmcft per year, and said that the extra water is to meet the drinking needs of Bengaluru.
ANI quoted Tamil Nadu Chief Minister Edappadi K Palaniswami post the verdict and while he appreciated the fact that the Supreme Court had said that no one was an owner of the resources, and everyone has equal rights over a river, he was disappointed that the water allotment to the state had been reduced from 192 tmcft to 177.25 tmcft .
It would perhaps help to remember author Margaret Atwood's words who wrote in the Penelopiad, "If you can't go through an obstacle, go around it. Water does.”
Well, we will continue to report this story, because despite the SC verdict, this argument flows on.
In May this year, the SC approved the Centre's draft Cauvery Management Scheme for smooth distribution of water among four southern riparian states.
And stated that its verdict on Cauvery water allocation will continue for next 15 years though we can be sure that the discontent over water sharing, will persist as well.
The Hadiya verdict
This year at the Supreme Court, as we have said before, was very progressive in the context of the rights of the individual.
In April this year, the SC set aside a 2017 order of the Kerala High Court which annulled the marriage of Kerala Muslim convert Hadiya and Shefin Jahan, with this statement and we quote, "the right to marry a person of one’s choice is integral to Article 21 (right to life and liberty) of the Constitution”.
Wrote Justice Chandrachud and we quote again, "The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith.
The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme…Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution."
As reported by The Indian Express and multiple news sources, the three-judge bench delivered two separate detailed concurring judgments, one by Chief Justice Dipak Misra and Justice A M Khanwilkar and the other by Justice D Y Chandrachud.
The court also allowed the National Investigative Agancy (NIA) to continue its investigation in respect of any criminality with the rider that it should not encroach upon their marital status.
Justice Chandrachud also stated that matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity and society has no role to play in determining our choice of partners.
He added that the HC, had entered into prohibited terrain by venturing to decide whether Shefin Jahan was a fit person for Hadiya to marry.
He further said and we quote, "The cohesion and stability of our society depend on our syncretic culture. The Constitution protects it. Courts are duty bound not to swerve from the path of upholding our pluralism and diversity as a nation."
The CJI and Justice Khanwilkar in their judgement said the High Court had been “erroneously guided by some kind of social phenomenon that was frescoed before it.” They further said that to have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow.
As Indian Express reported, the court called Hadiya’s father as an “obstinate one who has endeavoured immensely in not allowing his daughter to make her own choice in adhering to a faith and further making Everestine effort to garrotte her desire to live with the man with whom she has entered into wedlock”. The court termed this a “manifestation of the idea of patriarchal autocracy and possibly self-obsession with the feeling that a female is a chattel”.
The judges further said that the High Court, had erred by reflecting upon the social radicalization and certain other aspects and added this was absolutely unnecessary in a Habeas Corpus petition like the instant one. The bench said that non-acceptance of Hadiya’s choice would mean abdication by the Constitutional Court which is meant to be the protector of fundamental rights.
We quote from the judgment, “The duty of the court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law. Sans lawful sanction, the centripodal value of liberty should allow an individual to write his/her script. The individual signature is the insignia of the concept."
The bench also wondered how Hadiya's “detention” could be justified unless she was booked under some law.
To refresh your memory, Hadiya converted to Islam in January 2016 and later, she married Jahan, and that caused allegations of forced conversion to erupt despite her assertions to the contrary especially because her father K M Ashokan claimed that she had been “brainwashed” and moved the Kerala High Court which annulled the marriage and sent Hadiya to her parents’ custody last May.
Post the SC verdict, Hadiya has returned to continue her studies in a Salem college.
National anthem in cinema halls
On January 9, 2018, the Supreme Court modified its November 30, 2016 interim order and made it optional for cinema halls to play the 52-second national anthem before every show.
A bench, led by the then Chief Justice of India Dipak Misra, clarified that it is not mandatory to play the anthem before screenings in cinemas. It left the choice of whether to play the anthem or not to the discretion of individual cinema hall owners.
However, as The Hindu reported, the court, this time, instead of shooting from its own shoulders, banked on a Home Ministry order of 2015, which directs that “whenever the Anthem is sung or played, the audience shall stand to attention”.
The court also clarified that the exception granted to disabled persons from standing up during the anthem “shall remain in force on all occasions”.
The important point made orally by the then Chief Justice Deepak was that, “Playing of the anthem is directive, but showing respect is mandatory."
As reported in The Hindu piece, "The modification will be in place till the Union government takes a final decision on the recommendations of a 12-member high-profile inter-ministerial committee regarding the occasions, circumstances and events for the solemn rendering of the anthem. The ministerial panel will examine whether any amendments are necessary to the Prevention of Insult to National Honour Act of 1971 to expand or specify the meaning of “respect” to the national anthem."
The SC takes a stand in the context of Judge Loya's death
On April 19, the Supreme Court bench led by the then Chief Justice of India (CJI) Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud held that there was no merit in the pleas seeking an independent and impartial probe into the death of Judge Brijgopal Harkishan Loya.
The circumstances surrounding the death of Loya, a district judge in Maharashtra, on December 1, 2014, and the hearing by the Supreme Court of the petitions seeking an impartial probe into them had led to much uproar in the Supreme Court .
As Frontline reported in May, the bench held in its judgment that the documentary material on the record indicates that the death of Judge Loya was due to natural causes. There is no ground for the court to hold that there was a reasonable suspicion about the cause or circumstances of death which would merit a further inquiry.
Frontline reports that during the hearing, the bench dissuaded the petitioners’ counsel from wasting their time proving their bona fides and repeatedly assured them that they had its trust and confidence. However, the judgment ironically concluded and we quote: “The conduct of the petitioners and the interveners is, as we have indicated, lacking in bona fides and reveals a misuse of judicial process.”
Frontline further recalls how on January 12, the four senior-most judges of the Supreme Court had held a press conference to challenge the alleged arbitrary administrative decisions of CJI Dipak Misra. We quote, "One of the points raised was his assignment of this case to a “preferred bench” of his choice without following the principles of roster allocation recognised under the Supreme Court rules and by convention.
That decision was soon reversed, and CJI Dipak Misra decided to have the case heard by a three-judge bench presided over by himself despite a plea by counsel for recusal of the other two judges on the bench, Justices Khanwilkar and Chandrachud.
The plea was based on the grounds that they hailed from the Bombay High Court and knew the two judges in the High Court—Justices Bhushan Gavai and S.B. Shukre—who were with Judge Loya hours before his death and had given interviews stating that his death was natural. The Supreme Court rejected this plea, stating that a decision whether a judge should hear a case was a matter of conscience for the judge. Maintaining institutional civilities between or towards judges is distinct from the fiercely independent role of the judge as adjudicator, the bench held."
This has been one of the most controversial verdicts because as Frontline says, the judgment dismissing the petitions seeking an independent probe into Judge B.H. Loya’s death in 2014 leaves crucial questions unanswered.
We quote, "The suspicious circumstances surrounding Judge Loya’s death were first brought to light by an investigative story that appeared in T he Caravan magazine in November 2017. Before his death, Judge Loya was hearing the Sohrabuddin Sheikh fake encounter case in which Bharatiya Janata Party president Amit Shah was an accused. Judge Loya had insisted that Amit Shah should appear before him during the proceedings of the case."
So as you can see, while via some verdicts this year, the SC upheld the most vitally important individual freedoms, in other instances, controversy plagued the highest seat of justice and its upholders.
For now, we wish that every citizen in the country, regardless of faith, cast, gender, political affiliations, sexual orientation and economic and social background, has access to the fruits of democracy, to legal aid, to justice, to equality in all matters and to a sense of protected selfhood in 2019 and in the times to come.The coming year already looks set to be an interesting one for the court as it will be asked to fix a date for the hearing of the Babri Masjid-Ram Janmabhoomi dispute, and also to deliver a judgement in the plea filed by Alok Verma who has challenged his removal from the post of the Director of the CBI. The court, soon after it reopens, will also address the validity of the electoral bond scheme promulgated by the current dispensation.