Satya Prasoon, Disha Chaudhry & Jai Brunner
Centre for Law and Policy Research, Bangalore, India
Editors’ note: this blog post is the second post in a two-part series on ten significant decisions of the Indian Supreme Court in 2018, the first can be viewed here.
There are many academic traditions of interdisciplinary enquiry and critique that can be employed to interpret the Indian Supreme Court's record in 2018, it is however possible to identify some trends. Today’s is the second of two posts profiling ten cases of the Indian Supreme Court that captured public imagination deeply and shaped political-constitutional discourse in substantive ways in 2018. The discussion of the ten cases is divided into themes and split across two posts. This week’s post deals with themes of civil liberty, federalism, privacy and biometrics, and religion and gender equality – with last week’s post, dealing with substantive equality, reservation policies and counter-majoritarianism.
Protector of Civil and Personal Liberty?
The menace of lynching, with disproportionate targeting of Muslims and Dalits, is a grim reminder of the fair distance that Indian democracy still has to traverse to realize the promise of ‘constitutional citizenship’ – in which one's identity is irrelevant to the realization of rights and equal protection of the law. Apart from the majoritarian backlash, another index for testing the equal citizenship claim is the state of civil and personal liberties in the nation, in particular the freedom to dissent.
This claim was tested when the State arrested five human rights activists and critics of the State – calling them ‘Urban Naxals'. These human rights activists had substantial experience working with marginalized and disadvantaged communities. Further, they had often been critical of the government in the past.
This sudden arrest by the Pune Police was seen as an attempt to freeze dissent by the heavy hand of state machinery. In response, five eminent citizens filed a Public Interest Litigation (PIL) case in the Supreme Court, challenging the arrests and seeking a court-monitored probe into the investigation.
The Court in a 2:1 judgment in Romila Thapar v. UOI rejected the plea for a Special Investigation Team (SIT) to probe into the investigation, on the ground that the State had adduced sufficient evidence for the possibility that they are members of a banned terrorist organization, CPI (M). Note that the petitioners were not allowed to scrutinize this evidence, as it was submitted in sealed covers – only the judges viewed it. The lone dissenting judge, DY Chandrachud, called for a court-monitored probe as he recounted various procedural lapses in the arrest process, signalling States’ selective targeting of critics.
This case forces one to re-examine the fragile nature of speech protection when it collides with state power. The standards of proof, required for successful conviction, need not be met to justify a call for a probe at initial stages. A prima facie case is sufficient to merit investigation. Further, should the power asymmetry between citizens and the State not be factored in, when such brazenness is shown in arresting dissenters and critics? Rather than legitimizing sealed cover jurisprudence, shouldn’t the Court critically assess the government's account of the facts?
In defence of Federalism
With the incumbent Union Government having heavy numbers in the Parliament, there seems to be a shift in the delicate federal balance between the Centre and the States. There’s a growing concern that the Centre is pushing hard to control the opposition-ruled States through the institution of the ‘Lieutenant Governor’. The Centre appoints a Lieutenant Governor, or LG, as the constitutional head of a State (or Union Territory), that wields discretionary powers. The exercise of discretionary power, exercised at the behest of the Union Government, has the potential to disrupt the federal balance.
The case that brought the institution of the LG into controversy was the Government of NCT of Delhi v UOI case. Holding representative democracy to be an essential feature of the office of the executive, the Court held that the LG is not the executive head of Delhi. Rather, it held that the Chief Minister and the Council of Ministers lead the executive. It clarified that the LG, who is an administrator appointed by the Union, is bound by the advice of the Chief Minister, and secondly, that the LG has no independent power under the Constitution. The Court further observed that where two interpretations are possible on textual provision, primacy should be given to an interpretation, which furthers representative democracy, a basic feature of the Constitution.
Even though the principled issue of who the executive head of the Delhi Government is, is now settled, the further questions of who heads the Services and the Anti-Corruption Bureau, and who has the power to set up enquiries over public functionaries are yet to be comprehensively settled. This is because the 5-judge bench in this case dealt with the constitutional question of who heads the Delhi Government and specific disputes were referred to the smaller benches. Nevertheless, the Court in 2018 played an active role in strengthening the principle of co-operative federalism by limiting the scope of the Centre's interference and by checking the discretionary powers of the LG.
In 2018, the Court faced a significant test in its assessment regarding whether the Government's expansive and controversial identity program, called Aadhaar, ran afoul of privacy. Note that in 2017, a nine-judge bench of the Supreme Court had recognized the right to privacy as a fundamental right guaranteed by the Constitution.
In a 4:1 split verdict in K.S. Puttaswamy v. UOI, the Court upheld the constitutionality of the Aadhaar Act, but curtailed its wide ambit by striking down provisions which had allowed non-state parties to make Aadhaar mandatory. However, the Court did not strike down Section 7, which makes Aadhaar mandatory for qualification for State subsidies and benefits.
Justice AK Sikri writing the majority opinion, spoke of balancing two notions of the right to dignity – individual dignity, predicated on freedom of choice, and a communitarian approach to dignity, which accounts for the "community good." By upholding Section 7, Justice Sikri signalled that the citizens dependent upon State subsidies and benefits may have to place limits on their right to self-identify, a part of the right to individual dignity.
Besides bringing civil society together to challenge the world's largest biometric identification project, with the enrolment of 1.2 billion citizens, the case is significant also for seeing the most extended oral arguments in the 21st century. Oral arguments lasted for 38 days. The longest hearing ever, occurred in 1973 in Kesavanand Bharti v. State of Kerala, where arguments lasted for 68 days.
Reconciling Religion with Gender Equality
In testing a religious custom, spanning centuries, against the tenets of gender equality, the Supreme Court in Indian Young Lawyers Association v. State of Kerala by a 4:1 decision, held that the Sabarimala religious custom, which prohibits women in their 'menstruating years' from entering the Temple, violates fundamental rights guaranteed to women under the Constitution. Justice Indu Malhotra's dissent has raised questions about the extent to which established religious practices can be challenged on notions of equality.
The dispute is still unfolding as over 50 review petitions are yet to be decided. Even four months after the judgment, there is almost nil enforceability of the judgment with only two women managing to get entry into a temple. This chips away from the authority of the highest Court, if it is helpless in the face of political protests in getting its judgment enforced. Clearly, it’s the troika of reasoning, outcome, and enforceability together that give legitimacy to the Supreme Court as the final arbiter of law.
With the analysis in these two posts we present to the readers a 10-case series by the Supreme Court Observer where we have detailed the journey and the reception of these cases. It is written with a common, non-technical reader, who has an interest in public affairs, in mind. However, the detailed references and hyperlinks allow the more informed reader to look into the journey of these cases more intensively. Below, find links to the #10 Cases that Shaped India in 2018:
Constitutionality of Aadhaar Act (K.S. Puttaswamy v. Union of lndia)
Sabarimala Temple Entry (Indian Young Lawyers Association v. State of Kerala)
Constitutionality of Section 377 (Navtej Johar v. Union of India)
Arrested Activists (Romila Thapar v. Union of India)
Decriminalisation of Adultery (Joseph Shine v. Union of India)
Reservation in Promotion (Jarnail Singh v. Lacchmi Narain Gupta)
Electoral Disqualification (Public Interest Foundation v. Union of India)
Hadiya Marriage (Shafin Jahan v. KM Ashokan)
Cow Vigilantism (Tehseen Poonawalla v. Union of India)
Special Status of Delhi (Government of NCT of Delhi v. Union of India)
Suggested Citation: Satya Prasoon, Disha Chaudhry and Jai Brunner, ‘10 Cases that Shaped India in 2018’ IACL-AIDC Blog (8 March 2019) https://blog-iacl-aidc.org/2019-posts/2019/3/8/10-cases-that-shaped-india-in-2018