In many ways, 2017 was a remarkable year for the Supreme Court, with important and often unpredictable verdicts. The turn of the year is perhaps a good time to look at some of the significant decisions that the apex court made and, probably more importantly, to look at what it failed to do.
Justice K.S. Puttaswamy vs Union of India – the fundamental right to privacy
On August 24, a nine-judge bench of the Supreme Court unanimously affirmed that the right to privacy is a fundamental right under the constitution. The decision came at the end of a two-year-long battle, which had begun when the Union of India in a 2015 hearing (on the validity of the Aadhaar Act) argued that the right to privacy was not guaranteed under the constitution.
Through six different opinions, across 547 pages, the bench not only upheld the right to privacy, but also delivered a judgment which will significantly impact our republic for decades to come. Data protection, the legality of beef/alcohol bans, LGBT+ rights etc. are issues that will be directly protected by the privacy umbrella. Suffice it to say that this is not only the most significant decision of the year, but perhaps also one of the most important civil rights judgments ever delivered by the apex court. On a side note, the judgment had Justice D.Y. Chandrachud overturning his father Justice Y.V. Chandrachud’s surrender of civil liberties during the Emergency in the ADM Jabalpur case.
Shayara Bano vs Union of India and Ors
The ‘setting aside’ of the practice of talaq-e-bidat – instantaneous triple talaq – on August 22 was another socially and politically significant judgment by India’s Supreme Court. The bench was split 3-2 on the question of validity of the practice. Justices Rohinton F. Nariman and Uday U. Lalit found it to be unconstitutional, while Justice Kurian Joseph found it illegal. Chief Justice J.S. Khehar and Justice Abdul Nazeer backed the practice. However, Justice Nariman (with Justice Lalit concurring) and Justice Joseph used different, even conflicting, reasoning to arrive at the “majority decision”. Justice Nariman set aside triple talaq on the ground that it was ‘manifestly arbitrary’. Justice Joseph set aside the practice holding that it was against the teachings of Quran.
It is hard to disagree with the final outcome. However, it is equally difficult to not see the decision as a missed opportunity. Long-standing constitutional precedent is still that personal laws are not subject to fundamental rights. Refusal to test personal laws on the touchstone of fundamental rights meant that the validity of religious laws continues to be decided on a judge’s interpretation of religious texts. Further, it leads to an anomalous situation where a personal law, when codified, is amenable to a fundamental rights infringement challenge. However, the same law in an uncodified form is immune to constitutional scrutiny.
The triple talaq case presented the perfect opportunity to re-examine this position. Justice Nariman’s opinion does indicate that this may be done in a suitable case. However, the court stopped short of examining personal law on the basis of the constitution.
Independent Thought vs Union of India
The petitioners had challenged the constitutionality of Exception 2 to Section 375 of the IPC. The exception provides that sexual intercourse with a minor wife – one who is of or above the age of 15 – would not qualify as rape. As a result of the exception, there existed a category of married women between the ages of 15-18 who could not enjoy protection under the law if they were forced into sexual intercourse by their husbands. This position was supported by the Union of India. Through its judgment passed on the October 11, the court held that the distinction made between a married girl child and an unmarried girl child was arbitrary and whimsical. In effect, the court has criminalised all sexual intercourse between a man and a minor girl, irrespective of their marital status.
A marriage between two consenting adults would ordinarily be their business and theirs alone. It is unlikely to give rise to any legal contests, much less fights that lead to protracted and often, stormy hearings at the Supreme Court spread across several months.
The marriage of 24-year-old Hadiya (formerly Akhila Ashokan) to 27-year-old Shafin Jahan is at the centre of a political and legal storm that has taken one unexpected turn after another. It started with a May 2017 judgment of the Kerala high court, which while deciding on a writ petition filed by Ashokan’s father, annulled Hadiya’s marriage to Jahan. The question before the Supreme Court was simple – on what basis did the high court use its extraordinary writ jurisdiction to annul a marriage between two consenting adults?
However, instead of deciding the issue, the court allowed itself to be misled by the bogey of sinister conspiracies. The end-result – an adult woman was unwillingly kept in the custody of her father for months, while the National Investigations Agency went on a roving and fishing expedition to prove the love jihad theory.
Over the last two hearings, the court seems to have gotten past the red herrings that were laid in its path. On November 27, Hadiya was directed to go back to homeopathy college in Salem, Tamil Nadu. However, even this order was passed against her express wishes. The case is slated to be listed for hearing once again early next year. One only hopes that Hadiya’s ordeals end then and she is given the rights guaranteed to her under the constitution – liberty and freedom of choice.
Also read: Hadiya’s Encounter With the Courts Reveals the Continued Stranglehold of Brahmanical Order
National anthem orders
In 2001, Shyam Narayan Chouksey went to a theatre in Bhopal to watch Karan Johar’s Kabhi Khushi Kabhi Gham. The movie included a scene where the national anthem was played, so he stood up, but no one followed suit. Instead, people heckled him for obstructing the view. Thus began his long quest to ensure that fellow citizens stood up whenever they heard the national anthem being played. Through an interim order dated November 30, 2016, passed in Shyam Narayan Chouksey vs Union of India and Ors the Supreme Court directed cinema halls to play the national anthem before the screening of a film. It also directed that all present would be “obliged to stand up to show respect to the National Anthem.” The interim order is a case of judicial legislation. It also seeks to establish a forced display of patriotism, which display the Supreme Court had in the 1980s ringingly denounced in Bijoe Emanuel’s case.
Through the course of 2017, attempts have been made to persuade the court to reconsider its directive. On October 23, 2017, the court showed a willingness to recall the order. Justice Chandrachud even questioned whether the court could direct ‘a citizen to wear patriotism on his sleeves?’ Ultimately, the court directed the government to take a decision on the issue. The case is listed for hearing on January 9, 2018. The interim order of 2017, however, remains in place.
The CJAR/Kamini Jaiswal petitions
The events of November 10, 2017, were unprecedented in the annals of the Supreme Court. It all started in September, when the CBI arrested former high court judge Justice I.M. Quddusi. The FIR filed in case by the CBI it alleged that promoters of a medical college in Kanpur had approached Quddusi who had promised relief from courts in return of bribes to influential people.
Cases concerning medical colleges had earlier been heard by a bench headed by the Chief Justice of India (CJI) Dipak Misra. The Campaign for Judicial Accountability and Reforms and subsequently Kamini Jaiswal, filed petitions. Both contended that since the FIR by CBI cast aspersions on the judiciary, the matter should be investigated by a Special Investigation Team headed by a retired Chief Justice of the Supreme Court.
The first petition had been directed by the CJI to be placed before a bench sitting in the sixth court. However, the second petition was mentioned before the bench of the second senior-most judge, who later that day referred the matter to five of the senior-most judges of the court. This order was perceived by some as a direct attack on the Chief Justice and his powers. The chief justice thereupon constituted a constitution bench of five judges, who overruled the previous order by the second senior-most judge. The petitions were ultimately dismissed with exemplary costs of Rs 25 lakh. The sight of a squabbling top judiciary, with a miasma of corruption allegations being buried out of sight, is a grave, self-inflicted wound that continues to fester within the the institution. The last chapter in this tale has not yet been written, and 2018 may yet see an unexpected denouement.
Also read: A Sad Moment in India’s Judicial History
What 2018 holds
In many ways, the judgments delivered by the Supreme Court in 2017 have paved the way for the court room battles of 2018. The first significant case that the court will hear is the challenge to the validity of the Aadhaar scheme, which will now be tested against the fundamental right to privacy. Final hearings of the case are scheduled to begin on January 17.
January 2018 will also see further proceedings in the national anthem and Hadiya cases. The final hearing of the Babri Masjid dispute is also slated to begin in February 2018. The year 2018 will hopefully see a Supreme Court which builds on the strengths it gained in 2017.
Sanjay Hegde is a senior advocate, Supreme Court. Pranjal Kishore is an independent lawyer, he tweets @parahoot.