Observer Desk

Posted on 27.09.17 by

SUPREME COURT 2ND SESSION REVIEW (3rd July – 22nd September)

The Supreme Court’s 2nd session was from 3rd July to 22d September. During this session the Court heard a few large bench constitutional matters  – Triple Talaq case (Shyara Bano v UOI), Privacy Case (Puttaswamy v UOI) , Whatsapp Privacy Case (Karmanya Sareen v UOI).

While the court continued hearings in the Cow Vigilantism (Tehseen Poonawalla v UOI) and Whatsapp Privacy case, this session also saw commencement of hearings in the Rohingya Deportation (Salimullah v UOI) and Hadiya Love Jihad (Shafin Jahan v Ashokan)

The highpoints of this session were the verdicts in the 5 judge Triple Talaq case and the 9 judge bench Privacy Case. While the instant triple talaq practice was held as invalid by a narrow division of 3:2, the court in Puttaswamy spoke unanimously to recognise the Right to Privacy as a fundamental right.

In the Gujarat Shrine Case (Gujarat v IRCG), decided days after the privacy judgment, the SC ruled that substantial compensation from the State for the shrines destroyed during communal frenzy violates Secularism. This led to it being criticised for getting the conceptual content of Secularism wrong.

In September, the Court took on two cases that envisage the highest court as a counterbalance to a strong political executive – Cow-Vigilantism Case which deals with state support for cow vigilantes and the Rohingya Deportation case which challenges the government’s refugee deportation policy.

In the wake of the Triple Talaq and Privacy judgements, the public legitimacy of courts as the protector of civil liberties rose but a closer scrutiny of recent actions muddies this view. The judiciary has enunciated broad principles but has been selective in applying them to concrete situations like Hadiya or Gujarat Shrine.

The judges that eloquently described ‘dignity’ to be the basis of privacy in Puttaswamy didn’t apply it to the Hadiya Love Jihad Case when they ordered the National Investigation Agency to investigate an inter-faith marriage.

On the personnel front Chief Justice Dipak Misra who took over from J.S. Khehar on 28th Aug 2017,  and will occupy the office till 2nd Oct 2018, has a reputation of being conservative on “free speech” issues as reflected in his Subramanium Swamy case judgement where he upheld criminal defamation law and Shyam Chouksey Order where he ‘compelled’ citizens to sing the National Anthem.

He is heading a 5 judge bench to decide if freedom of speech is also subject to Right to Life in the Azam Khan Free Speech case (Kaushal Kishore v UP) and is also presiding over the Ram Mandir – Babri dispute case (Maulana Ashad v Mahant Suresh Das) which will decide on the title dispute of Babri Masjid land.

The court reopens on 3rd October with the Cow Vigilantism and Azam Khan Free Speech cases listed in the first week. This session holds the potential of refurbishing the Court’s slightly tarnished reputation as the protector of individual dignity and civil liberties.

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