The second half of September saw the Supreme Court deliver 9 big judgments. Notably, now retired CJI Dipak Misra headed all these cases. The biggest was the Aadhaar challenge where the majority upheld the constitutionality of the Act, but struck down problematic sections and regulations for infringing upon fundamental rights. The Supreme Court bolstered its image as a progressive court by striking down laws such Section 377 IPC (homosexuality), Section 497 IPC (adultery) and the Sabarimala custom of excluding women.

 

Major judgments:

Aadhaar - On 26th September 2018, the Court upheld the constitutional validity of the Aadhaar Act, while striking down certain provisions as unconstitutional. The Bench produced three separate opinions. Justice Sikri wrote the majority judgment on behalf of Chief Justice Misra, Justice Khanwilkar and himself. Justice Bhushan wrote a concurring opinion. Justice Chandrachud wrote a dissenting opinion.

 

The majority upheld the constitutionality of Aadhaar, but it struck/read down certain provisions of the Aadhaar Act and the UIDAI Regulations. Crucially, the majority opinion did not strike down Section 7, which makes Aadhaar mandatory for availing State subsidies, benefits and challenge. Justice Sikri rejected the charge that the Aadhaar programme created a Surveillance State. Instead, he saw Aadhaar as a unique identification tool, which “empowered” the disadvantaged sections by ensuring better and efficient targeting of State benefits and subsidies. He specifically upheld Aadhaar–PAN linking, but struck down bank account and SIM linking to Aadhaar.

 

Writing the lone dissent, Justice D Y Chandrachud held the Aadhaar Act to be unconstitutional from the very stage of its enactment owing to the procedure adopted in passing the law. The Aadhaar Act, he observed, could not have been passed as a Money Bill. Additionally, he also struck down the Act for violating the privacy, dignity and individual autonomy of citizens.

 

 

Section 377 - The five-judge Bench partially struck down Section 377 of the Indian Penal Code, decriminalising same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court has upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.

 

Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice DY Chandrachud and Justice Indu Malhotra authored four concurring judgments. The four judgments unanimously cited fundamental rights violations in reading down Section 377. They found that Section 377 discriminates against individuals on the basis of their sexual orientation and/or gender identity, violating Articles 14 and 15 of the Constitution. Further, they ruled that Section 377 violates the rights to life, dignity and autonomy of personal choice under Article 21. Finally, they found that it inhibits an LGBT individual’s ability to fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a). They all referred to Court’s recent judgements in NALSA (recognised transgender identity) and Puttaswamy (recognised fundamental right to privacy).

 

 

Sabarimala - On 28th September 2018, the Court delivered its verdict in Sabarimala Temple Entry. A 4:1 majority held that the temple's practice of excluding women is unconstitutional. It held that the practice violated the fundamental rights to equality, liberty and freedom of religion, Articles 14, 15, 19(1), 21 and 25(1). It struck down Rule 3(b) of the Kerala Hindu Places of Public Worship Act as unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude women from public places of worship, if the exclusion was based on 'custom'.

 

The Court delivered four separate opinions: Chief Justice Misra, Justice Nariman, Justice Chandrachud, Justice Malhotra. Justice Nariman & Justice Chandrachud concurred with the opinion of Chief Justice Misra. Justice Indu Malhotra delivered the dissenting opinion in the case.

 

In his concurring opinion, Justice Chandrachud also dealt with the argument that the exclusion was a form of untouchability prohibited under Article 17 of the Constitution. He observed that a perusal of the Constituent Assembly Debates would show that the makers of the Constitution had deliberately chosen to not give the term untouchability a specific meaning. He concluded that this was to ensure that it was not understood in a restrictive manner.

 

In her lone dissent, Justice Indu Malhotra held that the Sabarimala Temple satisfies the requirements for being considered a separate religious denomination. She therefore held that the Sabarimala Temple is protected under Article 26(b) to manage its internal affairs and is not subject to the social reform mandate under Article 25(2)(b), which applies only to Hindu denominations. Note that Article 26, denominational freedom of religion, is subject to 'public order, morality and health'. Justice Malhotra held that 'morality' (constitutional morality) must be understood in the context of India being a pluralistic society. She stated that the State must respect the freedom of various individuals and sects to practice their faith.

 

Like Justice Chandrachud, she referred to the Constiuent Assembly Debates to establish how the founder intended to use the term untouchability but unlike Justice Chandrachud, she concluded that untouchability does not extend to gender.

 

 

Electoral Disqualification - On 25th September 2018, a five-judge Bench unanimously decided that it couldn’t disqualify candidates, against whom criminal charges have been framed, from contesting elections. The Court recommended that Parliament make laws to curb the increasing criminalisation of politics.

 

The Bench unanimously ruled that it could not alter the RP Act. It recognized that the separation of powers prevented the Court from engaging in law-making. The Court held that altering Section 8 of the RP Act would amount to law-making, which is a power exclusive to the legislature.

 

Further, the Court issued directions aimed at combating the criminalisation of politics.

  1. "Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein. 
  2. It shall state, in bold letters, with regard to the criminal cases pending against the candidate.
  3. If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.
  4. The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.
  5. The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers."

 

 

Adultery - On 27th September 2018, a five-judge Bench unanimously struck down Section 497 of the Indian Penal Code (IPC), thereby decriminalising adultery. It struck down Section 497 IPC on the grounds that it violates Articles 14, 15 and 21 of the Constitution. The Bench held that the section is an archaic and paternalistic law, which infringes upon a woman's autonomy and dignity. The Bench also read down Section 198 of the Code of Criminal Procedure Code (CrPC). 198(2) CrPC specifies that only a husband can file charges for offences under Section 497.

 

The Bench overruled its judgments in Sowmithri Vishnu, Vishnu Revathi, and Y Abdul Aziz. These judgments had upheld Section 497 as constitutionally valid.

 

The Bench produced four separate concurring opinions. Chief Justice Misra wrote an opinion on behalf of Justice Khanwilkar and himself. Justice Nariman, Justice Chandrachud and Justice Malhotra wrote concurring opinions.

 

 

Arrested Activist - On 28th September 2018, a 2:1 majority rejected the plea for a Special Investigation Team (SIT) probe into the arrests of activists in relation to the Bhima Koregaon violence.

 

Five eminent citizens filed the petition: Romila Thapar, Devaki Jain, Prabhat Patnaik, Satish Deshpande and Maja Dharuwala. The petitioners had approached the Supreme Court in a writ petition under Article 32 of the Constitution, challenging the arrests of five activists on 28th August 2018. They argued that the State had arbitrarily made the arrests to curb dissent and, thereby, had violated Articles 14, 19 and 21 of Constitution, which guarantee equality before the law, free expression and personal liberty.

 

The Maharashtra Police had alleged that the arrested activists are active members of the Communist Party of India (Maoist), a banned terrorist organization under the Unlawful Activities (Prevention) Act (UAPA).

 

Justice A M Khanwilkar authored the majority opinion, on behalf of Chief Justice Dipak Misra and himself. Justice D Y Chandrachud authored the dissenting opinion.

 

Majority opinion - Justice A M Khanwilkar, on behalf of CJI Dipak Misra and himself, rejected the plea for a SIT probe. He held that the accused were not arrested merely because of their dissenting views, but rather due to their alleged involvement in the Elgaar Parishad meeting.

 

He opined that the jurisprudence, as laid down by the courts, establishes that accused persons cannot choose which agencies investigate them. He referred to Narmada Bai v State of Gujarat & ors and Sanjeev Rajendra Bhatt v Union of India & ors.

In his dissenting opinion, Justice D Y Chandrachud highlighted the need for a SIT in his dissenting opinion. He observed that the present petition was not politically motivated. He stated that the question at hand was whether the arrests violated the accused’s fundamental rights to free expression and personal liberty, guaranteed by Articles 19 and 21. He emphasised that an effective and impartial criminal justice system is the stronghold of the human justice system.

 

 

References to Larger Benches:

Ayodhya Title Dispute - On 27th September, the three-judge Bench in a split of 2:1  verdict held  that Ismail Faruqui judgment of 1994 which held mosque to not be  integral to the practice of Islam, does not require reconsideration by a larger bench. The matter will now be resolved as a land title dispute by a three-judge bench.  The Bench upheld the validity of Faruqui, which held that in questions of State land acquisitions, mosques are not an essential feature of Islam. 

 

Justice Bhushan, on behalf of Chief Justice Misra and himself, wrote the majority opinion. Justice Nazeer wrote a dissenting opinion.

 

Hearings in the case will resume from October 29th, 2018.

 

 

Reservation in Promotion - On 26th September 2018, the Court delivered its verdict in the Reservation in Promotion case. A five-judge Bench of the Supreme Court unanimously held that the judgment delivered in Nagaraj in 2006, relating to reservations in promotions for SC/ST persons, does not need reconsideration by a larger seven-judge Bench. The Bench also struck the demonstration of further backwardness criterion from Nagaraj. Justice Nariman wrote the unanimous opinion.

 

In Nagaraj, the Supreme Court had held that it was not mandatory for states to grant reservations in promotions and the same was left to the discretion of the State. If the State exercised its discretion in favour of granting reservation, it was to collect quantifiable data to demonstrate backwardness and inadequacy of representation. Dealing with the aforesaid conditions in Nagaraj , the Court has held that the condition requiring the States to collect quantifiable data on the backwardness of the SC/ST community is contrary to the nine-judge Bench decision in Indra Sawhney. Prescribing of the collection of quantifiable data as a pre-requisite for granting reservations in promotions has been held to be invalid and the decision in Nagaraj stands modified accordingly. 

 

However, the court added that the principle of creamy layer exclusion would apply to SC/STs. Earlier, it applied only to Other Backward Classes (OBCs) in matters of reservation.

 

The court held creamy layer exclusion to be a principle of equality. Non-exclusion of creamy layer (forward among the SC/STs) would violate right to equality in two ways: first, by treating equals- general class and forward among Backward Classes (SC/ST) differently and secondly, treating unequals - backward class and forward among backward classes similarly. Thus, the court held that exclusion of creamy layer from SC/ST in matter of promotion is essential to safeguard right to equality.  In short, non-exclusion of creamy layer leads to treating equals unequally as well as unequals equally. 

 

Female Genital Mutilation - On 24th September, the Court issued an order referring the case to a five-judge Constitution Bench. The three-judge Bench led by Chief Justice Misra was hearing a petition call for a ban on female circumcision. Female circumcision is most widely practiced by the Dawoodi Bohra Community. The Bench ultimately decided to refer the case to a five-judge Bench because it held that one of the main questions at hand was whether the practice can be considered an essential religious practice. According to precedent, Constitution Benches hear questions pertaining to essential religious practices.