Revision as of 10:30, 9 November 2016

Contempt of court

Calcutta HC on contempt: SC

The Times of India, Sep 18, 2011

The Jalpaiguri district court was shut for a month by people demanding a Calcutta high court circuit bench there and the high court convicted 18 people, including the DGP of the West Bengal police, editor of a local daily, an ex-MP, an MLA and the district magistrate, for contempt. When they appealed against their conviction and six-month jail term, the tables were turned in the Supreme Court, which not only quashed the contempt proceedings but also faulted the high court for not taking timely action during the agitation to help keep the district court open.

The protesting public started the agitation on December 15, 2006 outside the main gate of the district court and requested the judicial officers not to go to court. It continued for a month till January 15, 2007.

A bench of Justices P Sathasivam and B S Chauhan said the agitation was peaceful and the judicial officers were not forcibly prevented from attending the court. However, it reiterated that “the administration of justice should never be stalled at the instance of anyone including the members of the bar even for any cause.”

The SC found that there was no request from the district judge or from the registrar general of the HC for removal of the rostrum put up in front of the gate and clearing of the protesters. It disagreed with the HC’s view that the DGP disobeyed the Chief Justice’s order for restoration of the district court’s functioning.

Contempt/ defiance of the Supreme Court

Siddaramaiah, Sahara and other cases

Dhananjay Mahapatra High and mighty in country make judiciary drag its feet, Oct 03 2016 : The Times of India

Siddaramaiah's Snub To SC Not 1st Case Of Defiance By A CM

Defiance of the Supreme Court's orders have al ways invited stinging punishment. Sahara group chief Subrata Roy will testify to that. He spent more than two years in jail and yet is not safe from the wrath of law. Last week, he was in real danger of being dragged back to prison just because his counsel made some intemperate arguments to test the SC's patience.

Again in Sept 2016, the Justice Lodha committee complained to the SC that the Board of Control for Cricket in India (BCCI) was impeding and defying implementation of reforms ordered by the apex court. Asking the BCCI to fall in line, the SC issued a “we will set you right“ warning.

But last week also saw Karnataka repeatedly flouting the SC's orders for release of Cauvery water to Tamil Nadu. Three times in the past one month, the state disobeyed the SC's orders. The political class came together and the assembly passed a resolution restraining the government from releasing water.

The SC had no option but to reiterate its orders notwithstanding the assembly resolution. CM Siddaramaiah told the SC in clear terms that given the “will of the people of Karnataka“, he would disobey the court's orders.

In a democracy , rule of law is maintained only when the violator faces reprisal of law swiftly and unwaveringly . For a commoner, the wrath of law has always been swift but when it comes to a mighty state or a chief minister, the SC has always been a little lenient.

It is not the first time that Karnataka has disobeyed SC orders. In 2002, the SC had issued contempt notice to then chief minister S M Krishna for disobeying its October 4, 2002 order for release of 9,000 cusecs of water into Mettur reservoir. The contempt proceedings gathered dust. After six years, the SC disosed of the contempt proce edings taking into account Krishna's unconditional apology for the disobedience filed through senior advocate Fali S Nariman, who continues to be the counsel for Karnataka in the Cauvery dispute.

Is Siddaramaiah drawing inspiration from the past? Difficult to say but the SC faces a real dilemma. If it hauls up the CM for contempt, it would help his popularity soar. And there is no guarantee of his successor implementing the SC's orders. As regards Siddaramaiah, he would not mind facing the wrath of law to emerge a martyr a few months ahead of assembly elections.

If the court does not take action, then it could encourage other states to defy its orders hiding behind the “will of the people“. And at present, it takes virtually nothing to whip up public hysteria.

In 1992, then UP chief minister Kalyan Singh had given an undertaking to the SC to maintain status quo at the disputed Ram Janmabhumi-Babri masjid site. It was flagrantly violated and the structure was razed to the ground. The SC convicted him for contempt of court.

In Mohd Aslam vs Union of India [1994 (6) SCC 442], the SC said, “It is unhappy that a leader of a political party and chief minister has to be convicted of an offence of contempt of court. But it has to be done to uphold the majesty of law. We convict him of the offence of contempt of court.Since the contempt raises larger issues which affect the very foundation of the secular fabric of our nation, we also sentence him to a token imprisonment of one day. We also sentence him to pay a fine of Rs 2,000.“ Is that the wrath of law ­ one day's imprisonment or a fine of Rs 2,000?

Importantly, the SC had aid, “Respect for law and its nstitutions is the only assuance that can hold a plura st nation together. Any atempt to achieve solutions to ontroversies, however ideoogically and emotionally urcharged, not on the basis f law and through judicial nstitutions, but on the trength of numbers will subert the fundamental values f our chosen political orga isation. It will demolish ublic faith in the accepted onstitutional institutions nd weaken people's resolve o solve issues by peaceful eans. It will destroy respect or rule of law and the authoity of courts, and seek to plae individual authority and trength of numbers above he wisdom of law.“

Contrast this to a very reent example in the US. No ess than Alabama Supreme ourt chief justice Roy S More was suspended because e had ordered junior judges o defy an order of the US Su reme Court which validated ame-sex marriage in June ast year. That is what is caled the wrath of law which perates on the basis of the axim “you be ever so high, he law is above you“.

Unfortunately in India, the wrath of law has always remai ed inversely proportional to he position and popularity of n individual. The higher he stands, lesser the chance of him acing the wrong end of the judicial stick. It will be interes ng to watch how the `wrath of w' story unfolds in the SC .

=Judges-

Advocates who gained straight entry to the SC

The Times of India, May 5, 2016

2016: Senior advocate L Nageshwar Rao joined a super-exclusive club of advocates to gain straight entry to the SC: Kuldip Singh, Santosh Hegde, U ULalit and R F Nariman. Rao was additional solicitor gene ral under both UPA and NDA before resigning in 2015.

Both father and son as SC judges

The Times of India, May 5, 2016

2016: The collegium headed by the Chief Justice of India recommended appointment to the Supreme Court of Allahabad HC chief justice DhananjayChandrachud. Justice Chandrachud's father Yeshwant was CJI from February 1978 to July 1985. Appointed a judge in Bombay HC at just 40, Chandrachud Junior has nine years of service left and a strong chance of creating history by also becoming CJI. Only once before have both father and son made it to the SC N H Bhagwati and P N Bhagwati, who went on to become CJI.

Late night hearings and judgements

The Times of India, Jul 31 2015

SC has answered two more midnight knocks

Mumbai serial bomb blasts convict Yakub Memon was not the first one to knock at the Supreme Court's door past midnight. What made Yakub's petition unprecedented was the one-and-a-half hour long postmidnight hearing that lasted till the crack of dawn. Earlier, the hearings after court hours were mainly held at the residence of the senior judge presiding over the bench.

On April 8, 2013, lawyers of condemned prisoner at Jabalpur Central Jail, Maganlal Barela, who was to be hanged at dawn on April 9 for killing his children, successfully moved the SC close to midnight. Barela averted the gallows, after all preparations were made to hang him, after rejection of his mercy petition by the President. The fax from the SC con veying the stay on Barela's hanging reached jail authorities just five hours before the scheduled hanging.

Similarly , Nithari rape-murder convict Surinder Koli was scheduled to hang on September 9, 2014. At the intervening night of September 8-9, his lawyers, led by Indira Jaising, woke up justices H L Dattu and A R Dave and placed before them Koli's petition seeking re-hearing of his review petition. A three-judge bench later stayed the execution and ordered open court hearing.

Landmark shifts of stance

Case studies, seven

The Times of India

Case studies: Supreme Court’s landmark shifts

The apex court is rightly hailed for its stellar role. But little has been written about its dramatic shifts on a range of key issues. TOI brings you the untold story

Manoj Mitta

Raising a toast for the establishment of the Supreme Court as India turned into a Republic, C K Daphtary, who went on to become the first solicitor general, said in January 1950, “A republic without a pub is a relic!”

Jokes apart, no appraisal of the 60 years of the Indian Republic can ignore the stellar role played by the Supreme Court in maintaining the constitutional scheme of checks and balances. Equally, no appraisal of the Supreme Court can be complete without delving into the vagaries of its rulings, for better or for worse — especially because the shifts in its position have not always been for reasons beyond its control.

This somewhat awkward aspect has however received little attention, perhaps because of the reverence reserved for the higher judiciary. Here is an attempt to focus exclusively on the judicial shifts made by the Supreme Court through the 60 years of its existence on a range of key issues.

Somersault on due process The first major constitutional issue decided by the Supreme Court came out of the preventive detention of communist leader A K Gopalan, in whose honour the headquarters of CPM is named. The issue was whether somebody’s detention could be justified merely on the ground that it had been carried out “according to the procedure established by law,” as stipulated in Article 21 of the Constitution. Or, would that procedure be valid only if it complied with principles of natural justice such as giving a hearing to the affected person?

In the A K Gopalan case of 1950, the Supreme Court, taking a narrow view of Article 21, refused to consider if the procedure established by law suffered from any deficiencies. Fortunately, three decades later, it took a 180 degree turn on this issue in the Maneka Gandhi case of 1978. The provocation was the arbitrary law that had allowed the Janata Party government to take away Maneka’s passport without any remedy. Importing the American concept of due process, the Supreme Court ruled that the procedure established by law for depriving somebody of their life or personal liberty had to be “just, fair and reasonable”.

Reduction of Parliament’s power to amend the Constitution

Validity of the very first constitutional amendment was challenged mainly because it had inserted the Ninth Schedule to insulate agrarian laws from being tested in courts. The issue facing the Supreme Court was to determine the extent to which Parliament could go while exercising its amending power under Article 368. This is how SC shifted its position more than once on this crucial issue.

First, in the Shankari Prasad case of 1951, it ruled that since no limits had been spelt out in Article 368, the power to amend the Constitution included abridgement of even fundamental rights.

Next, in the Golaknath case of 1967, it betrayed second thoughts on trusting Parliament with such unfettered discretion under Article 368. Since Article 13 stipulated that every law enacted by Parliament had to comply with fundamental rights, the Supreme Court read that limitation into constitutional amendments as well.

Finally, in the Kesavananda Bharati case of 1973, the SC held that the condition prescribed by Article 13 of complying with fundamental rights applied only to ordinary laws, not constitutional amendments. Taking the middle path, it said the only limitation on Article 368 was that a constitutional amendment could not alter the “basic structure” of the Constitution (such as the sovereignty of the country or its secular character).

Enlarging the scope of judicial review

For decades, the most abused provision of the Constitution was the sweeping power conferred on the President — in other words, the Central government — to dismiss a duly elected state government. The validity of actions taken under Article 356 of the Constitution went before the Supreme Court for the first time in 1977 when the then newly elected Janata Party government at the Centre had dismissedCongress governments in states for no reason other than the fact that it wanted to hold early elections.

But the Supreme Court, in what is known as the State of Rajasthan case of 1977, declined to intervene, ostensibly to avoid entering the political thicket. The President’s satisfaction that the state concerned could not be carried on in accordance with the provisions of the Constitution was, it said, not subject to judicial review. The apex court however reversed its stand in the S R Bommai case of 1994, where it held that a proclamation under Article 356 could be struck down if it was “found to be mala fide or based on wholly irrelevant or extraneous grounds”. Subjecting the President’s satisfaction to judicial review, the Bommai verdict clarified that the power conferred by Article 356 was a conditional one, not absolute.

Changing conception of compensation

Many a legal battle has been fought on the vexed issue of compensation payable to affected parties when a property has been acquired by the government. The question of interpreting the compensation promised by the Constitution arose for the first time in the Bela Banerjee case of 1954 involving a West Bengal law which sought to pay off the owners on the basis of the market value of their land on some distant date in the past. Rejecting the socialistic arguments of the state, SC laid down that the compensation should be “a just equivalent of what the owner has been deprived of”.

In a bid to get over the effect of the Bela Banerjee case, the Nehru government amended the Constitution stipulating that no law dealing with the manner in which compensation was to be given “shall be called in question in any court on the ground that the compensation by that law is not adequate”. This in turn triggered a chain of a vacillating judgments and another constitutional amendment on the compensation issue. It culminated in the shift from the categorical “just equivalent” in the Bela Banerjee case to a limp admission in the Kesavandanda Bharati case of 1973 that the amount need not be equivalent, so long as it was “not illusory”.

Diversity on quotas

Caste-based reservations in jobs and educational institutions are another contentious issue on which the Supreme Court has had to change its position in keeping with the times. Its initial response was completely adverse. In the Champakam Dorairajan case of 1951, the Supreme Court slammed caste-based reservations as a violation of the Constitutional prohibition of discrimination. It was however forced to take a more accommodative view of social justice once the Nehru government responded with the first constitutional amendment stipulating that the general prohibition of discrimination could not prevent the state from making any special provision for the advancement of SCs, STs and OBCs.

Having reconciled to the imperative of quota, the Supreme Court, in the M R Balaji case of 1963, imposed a cap of 50% on the extent of reservations for all the categories taken together, in a bid to ensure that the exception did not exceed the general rule of non-discrimination. Following the Mandal controversy, the Supreme Court, in the Indra Sawhney case of 1993, upheld the introduction of quota for OBCs in Central government jobs subject to the exclusion of the “creamy layer” (candidates whose parents are relatively wealthy or better educated).

Seasonal change on economic policy

True to its reputation of giving precedence to individual liberty over socialistic schemes, the Supreme Court, in the Bank Nationalization case of 1970, displayed no inhibition in probing the allegations that the Indira Gandhi’s government’s economic policy was discriminatory and deficient on compensation. As a corollary, it even struck down the nationalisation law.

But post-liberalisation, the SC, in the Balco case of 2001, upheld the Vajpayee government’s disinvestment policy by adopting the principle that “in the case of a policy decision on economic matters, the courts should be very circumspect in conducting any inquiry and must be most reluctant to impugn the judgment of the experts.”

Turning consultation into concurrence

This shift has earned the Supreme Court the opprobrium of turning the judiciary into a “self-perpetuating oligarchy”. For, all that the Constitution has prescribed in the appointment of judges to the Supreme Court is that the Chief Justice of India “shall always be consulted”.

`Fake freedom fighters' granted pension

Dhananjay Mahapatra, SC grants pension to `fake freedom fighters', Nov 02 2016 : The Times of India

Strange are the ways of the Supreme Court in dispensing justice. On the one hand, it ordered inquiry into alleged forging of freedom fighter certificates to claim pension and on the other, when the pensions were cancelled, it restored them on humanitarian grounds.

In August 2005, the SC had appointed the Justice A B Palkar Commission to examine the case of a large number of people claiming pension as freedom fighters by allegedly forging certificates in Beed district. It had said those falsely claiming to have participated in the freedom struggle should be dealt with sternly as they were “traitors“. It had directed the Palkar panel to complete the inquiry into claims of 354 people for freedom fighter pension and submit a report to the Maharashtra government.The panel had rejected the claims of 298 of 354 people and termed their documents “bogus“.

When the state govern ment cancelled their pensions relying on the Palkar commission report, the elderly people moved the Bombay HC and pleaded, “We are all senior citizens. At this ripe age, if we are deprived of pensionary benefits, we will not be in a position to eke out a livelihood.“ Given the SC's stern mandate in 2005 to separate the genuine freedom figh ters from the impersonators, the HC refused to give relief.

They made a final dash to the SC and pleaded before a bench of Justices Kurian Joseph and R F Nariman that withdrawal of pensions would mean starvation. The Justice Joseph-headed bench was caught in a situation where being legally correct would mean starvation for the petitioners.

What came to the bench's rescue was a 2013 judgment of the apex court which had dealt with similar pleas. It had said, “In our opinion, keeping in view the fact that at this old age, if small benefit that was already granted to them is withdrawn, it may be difficult for them to sustain themselves. In that vi ew of the matter, in the peculiar facts and circumstances of the case, we set aside the order of the Bombay HC.“ However, the court had said pensions would stop with the death of the false freedom fighters.

Justices Joseph and Nariman were quick to adopt the same stand. They said, “We find force in the submissions made by the counsel for Maharashtra that in many of these cases, the appellants have actually not participated in any freedom struggle. However, taking note of the only fact that these cases arise out of the same batch of appeals, we feel that it may not be proper to take a different view (than that taken in 2013).“

Political fallout taken into consideration

When Supreme Court considered the political fallout of its verdict

Dhananjay Mahapatra The Times of India Jan 07 2015

The political fallout of a judicial decision has seldom bothered the judiciary, but it appears that in 2012 the Supreme Court delayed the judgment on the CBI's probe into disproportionate assets cases against the Samajwadi Party chief and his sons to await completion of assembly elections.

On March 1, 2007, just before the assembly elections, an SC bench headed by Justice A R Lakshmanan had ordered the CBI to probe into alleged disproportionate assets of Mulayam Singh Yadav and his sons on a PIL filed by Vishwanath Chatur-vedi. Justice Lakshmanan retired on March 21, 2007 and was immediately appointed as chair man of the Law Commission.

Yadavs filed petitions seeking review of the March 1, 2007 judgment questioning the jurisdiction of the SC to order CBI probe without the consent of the state government on a politically motivated petition.The review petitions were heard by a bench of Justices Altamas Kabir and H L Dattu, which reserved its judgment on February 17, 2011.

Internal communication between Justice Kabir and Justice Dattu, accessed by TOI, shows, among other things, the ground for delay in pronouncing the judgment was the possible political fal lout of its decision in this case.

In June 2012, Justice Kabir wrote to Justice Dattu: “I deliberately waited till after the UP elections to pronounce the judgment so that the level playing field was not disturbed.“ The UP Assembly elections were held between February 8, 2012 and March 3, 2012. SP swept the polls and Akhilesh Yadav became the chief minister.

Just days before the verdict on December 13, 2012, Justice Kabir sent the draft judgment to Justice Dattu for his approval. In the note attached to the draft judgment, Justice Kabir had referred to the CBI's flip-flops in the case and said, “This dual stand in the submissions of the highest investigating agency cannot be appreciated by this court.“

Justice Dattu agreed with Justice Kabir, who had by then become the Chief Justice of India, that the CBI stand had been confusing.However, he clarified that “while making submissions (on behalf of the CBI) it has been highlighted that substantial prima-facie elements are there to conduct an investigation“.

He also felt that there was no substantial evidence against Dimple Yadav and no further investigation needed to be carried out against her.But Justice Dattu was firm against quashing the entire proceedings regarding disproportionate assets. Justice Dattu wrote back: “As discussed with you, quashing of the entire proceedings regarding disproportionate assets, which is evident on the face of records, will not only be doing injustice but also create a political turbulence. We are directing only CBI probeinvestigation and not holding them guilty . If nothing is found, they are acquitted. But in fitness of things a thorough investigation is needed.“

The judgment on the review petitions was pronounced on December 13, 2012. The court held that the CBI probe into alleged disproportionate assets of Mulayam, Akhilesh, and Prateek Yadav as ordered by the SC on March 1, 2007 was justified.

Vyapam-Tainted Doctors: Conflict Over their Fate

Aug 31 2016 : The Times of India (Delhi) 2-judge SC bench teaches law to 3-judge bench, Dhananjay Mahapatra 

A three-judge bench of the Supreme Court headed by Justice J S Khehar on Tuesday got some constitutional and legal lessons from a two-judge bench headed by Justice J Chelameswar.

The bench headed by Justice Khehar, who will become Chief Justice of India next year, was tasked with finding a solution to the conflict of opinion in a judgment rendered by the bench of Justices Chelameswar and A M Sapre in a case relating to punishment for those whose MBBS degrees were tainted by the Vyapam scam.

Justices Chelameswar and Sapre had found instances of undeserving candidates taking advantage of irregularities in entrance examinations to bag MBBS seats.Justice Chelameswar had said they should be asked to render charitable healthcare for a certain period to retain their MBBS degrees. But Justice Sapre had said these degrees should be cancelled.

The bench headed by Justice Khehar had asked whether the matter needed to be heard afresh to resolve the conflict of opinion and sought an answer from Justices Chelameswar and Sapre.

The miffed two-judge bench on Tuesday did not read out the judgment and merely signed it, departing from the usual practice where judges read out the operative portion of the verdict.

It said, “We completely fail to understand the reference made to Article 145(5) of the Constitution in the July 28, 2016 order (of the three-judge bench).“ Article 145(5) provides that the court should not pronounce a judgment without the concurrence of a majority of the judges on the bench which heard the case. However, it also says this would not prevent a judge from delivering a dissent judgment or opinion. Justices Chelameswar and Sapre said, “We are of the opinion that neither the Constitution of India nor any other law of this country provides an intra-court appeal insofar as the Supreme Court is concerned. A rehearing of the entire matter as apparently suggested by the larger bench, in our opinion, would amount to an intra-court appeal.“

As a final message to the three-judge bench which appeared to have a touch of judicial sarcasm, the two-judge bench said, “If the larger bench of this court wishes to create an intra-court appeal, we obviously are powerless to stop it. We can only record our understanding of the law on the question and it is as recorded above.“

Famous judgements

Disaster relief order: 2016

The Times of India, May 26 2016

Dhananjay Mahapatra

In its over-zealousness to protect the lives of citizens reeling under severe drought in several states, the Supreme Court has erred in directing the Centre to set up a National Disaster Mitigation Fund (NDMF) under a non-operational statutory provision which had riled the government. Led by finance minister Arun Jaitley , the government had accused the judiciary of wanton interference in the executive's exclusive domain of earmarking funds for various purposes under the budgetary exercise.

The SC on May 11 had quoted Section 47 of the Disaster Management Act, which provides for setting up of NDMF for projects exclusively for the purpose of mitigation -measures aimed at reducing the risk of disaster.

Slamming the government, the SC had said, “Although the DM Act has been in force for more than 10 years, the NDMF has not yet been constituted. Therefore, there is no provision for mitigation of a disaster.“ It said since the Centre had not set up NDMF, it was unlikely that states or district administrations would have set up disaster mitigation funds.

“As mandated by Section 47 of the DM Act, 2005, a Na tional Disaster Mitigation Fund is required to be established. Unfortunately, no such fund has been constituted till date. Accordingly, we direct the Union of India to establish a National Disaster Mitigation Fund within three months,“ the bench said and set August 10 as the deadline to set up NDMF.

While the anxiety to come to the rescue of those affected by droughts was reflected in the judgment of Justices Madan B Lokur and N V Ramana, the bench missed the fact that Section 47 of the DM Act was not yet notified. None of the counsel -neither additional solicitor general P S Narasimha nor the advocates appearing for states -drew the court's attention to the fact that Section 47 mandating setting up of NDMF was not notified by the government and, hence, remained non-operative.

As a result of this mistake, the SC ended up directing the Centre to implement a provision of law which for all practical purposes is non-existent.

A day after the SC directed the Centre to set up NDMF, Jaitley said the judiciary was progressively appropriating the executive's powers. “Step by step, brick by brick, the edifice of India's legislature is being destroyed,“ he said and his remark was appreciated by MPs cutting across party lines.

Setting up a Disaster Response Force

The Times of India, May 28 2016

SC also erred in asking govt to set up Disaster Response Force: ASG 

 Additional solicitor general P S Narasimha on Friday said the Supreme Court erred not only in directing setting up of National Disaster Mitigation Fund (NDMF) but also in asking the Centre to set up a National Disaster Response Force (NDRF). Responding to a TOI report published on Thursday, Narasimha said during the arguments on a PIL filed by `Swaraj Abhiyan', he had pointed out to the court that Section 47 of Disaster Management Act had left it to the Union government's discretion whether or not to set up NDMF by using the words “the government may“.

“Apart from this, I had also pointed out to the court that National Disaster Re sponse Fund under Section 46 was already constituted and in fact been operated since 2010. During the course of hearing, I had elaborately pointed out the distinction between mandatory provisions and those which are enabling,“ he said.

He added that he had also brought to the court's notice the rejection of a proposal to set up NDMF by the 13th Finance Commission, which was of the view that funds were already available to different ministries under the DM Act for mitigation measures connected to a disaster.

“Surprisingly , in its judgment on May 11, the court directed constitution of NDMF. Equally erroneously, the judgment directed formation of NDRF, although such a force has already been constituted under Section 44 with the requisite manpower. This fact was brought to the notice of the bench by a senior officer of the disaster management authority who was present in the court,“ Narasimha said.

The ASG objected to the TOI report which said that “the bench missed the fact that Section 47 of the DM Act was not yet notified as none of the counsel -neither additional solicitor general P S Narasimha nor advocates appearing for the states -drew the court's attention to this fact“. TOI had reported that the SC had erred by directing constitution of NDMF as Section 47 was nonoperational.

He said attribution of this omission to him was erroneous as he had presented all facts before the court.“For these reasons, I promptly advised filing of a review petition as these findings constitute errors apparent on the face of the record,“ he said.

However, none of the written submissions presented by the Centre to the court during the hearing mentioned the fact that non-notification of Section 47 barred the court from directing the government to constitute NDMF.

Key rulings

2015

The Times of India Jan 01 2016

Amit Anand Choudhary

Women's Rights Too Hogged Limelight In SC

In the year gone by , the Supreme Court constitutionally spurned the historic offer from Parliament to throw light on one of its darkest alleys -the road to appoint judges. Parliament enacted National Judicial Appointments Commission (NJAC) to bring in transparency in the process of appointment of judges in the apex court and high courts. But, the SC strangely put its vote on the opaque collegium system of judges selecting judges.

The overwhelming public support for NJAC -the unanimous decision of Parliament and its ratification by 20 states -could not persuade the SC, which said independence of judiciary could be in danger if the Executive, the largest litigant, participated in selection of judges. But, the court was quite alive to the concerns of the public when it came to deciding the validity of Section 66A of Information Technology Act.

It had no reservation in scrapping the law saying it impeded the citizens' right to freedom of speech and expression.

The SC also saw through the politics behind the UPA 's decision ahead of the 2014 general elections to grant OBC status to Jats, seen as a prosperous community . The NDA too attempted to woo the Jats by defending the UPA decision. But, the SC minced no words and called the decision to give quota to Jats in jobs and admissions to educational institutions a `negative and retrograde' step.

Irrespective of the political party in power, there has always been a tendency to project their top leaders in government advertisements with taxpayers' money . The SC put an end to it by ruling that no politician's face, except that of President and the Prime Minister, can be put in government advertisements.The chief ministers were the worst hit by this decision and many states have approached the SC to permit the photos of CMs to be displayed in government advertisements.

One may not need any educational qualification to become an MP or MLA. But in a significant decision, the SC upheld the Haryana government's law laying down educational criteria for panchayat polls.

The SC virtually brought down the curtains on the long political career of former Haryana CM Om Prakash Chautala by upholding his conviction and 10-year jail term in teachers' recruitment scam case. N Srinivasan, who was at the helm of BCCI was bowled out by the SC which condemned him for failing to maintain purity of the `gentleman's game' by blinking at the maladies like betting and spot-fixing.

The court saw a midnight drama just before the scheduled hanging of Yakub Abdul Razak Memon, the lone condemned prisoner in 1993 serial blasts case of Mumbai. Despite repeatedly rejecting his plea for life sentence, the SC did not hesitate to hear his advocates again when they knocked at its doors in a last gasp attempt.

The court passed a series of orders in 2015 to reinforce the rights of women who are despised by society for living an unconventional life.In a path-breaking verdict, it ruled that an unwed mother must be recognised as a legal guardian of her child and she cannot be forced to reveal the name of the father or seek his consent to get guardianship of the child.

It also held that an unmarried couple, living together as husband and wife, would be presumed to be legally married and the woman would be eligible to inherit the property after the death of her partner. It also held that a woman was entitled to maintenance from her live-in partner.

The court also expressed concern over women being used as surrogate mothers by foreigners and directed the government to ban commercial surrogacy . This prompted the Centre to roll back its 2013 decision allowing import of human embryos for artificial reproduction.

See also

Supreme Court: India (mainly SC's rulings)

Supreme Court, India: Administrative issues

Supreme Court: India: Chief Justices

Supreme Court: India: Sitting judges