Infructuous, Milord: How the Supreme Court dealt with recent constitutional challenges in sensitive cases

With Prime Minister of India Narendra Modi announcing that the Central government has decided to repeal the three contentious Farm Laws, the challenge against the same before the Supreme Court has been rendered infructuous.

The petitions against the Farm Laws were filed in late 2020. The top court had stayed the implementation of the laws in January 2021 and also ordered a Committee to look into the issue.

The Committee submitted its report in March 2021, but the case has not been heard since.

Interestingly, even as the challenge to the Farm Laws was put on the back burner, another set of cases - those opposing the blockade of roads by farmers - were filed in the Supreme Court. During the hearings in those cases, the top court made some interesting observations.

On October 1, a Bench headed by Justice AM Khanwilkar said that once the laws have been challenged in courts, the protesting farmers should repose their faith in the system and courts instead of continuing with the protests. On October 4, the Bench in fact said that it will decide the same as a legal issue - whether a person who approaches court challenging the validity of a law enacted by Parliament can take to the streets in protest over the same legal issue. A similar issue pending before the Rajasthan High Court was ordered to be transferred to the Supreme Court so that the matter can be decided together.

"Once you have approached courts challenging the laws, what is the point of continuing the protests? If you have faith in courts, pursue that for urgent hearing instead of protesting," the Bench had remarked.

That last sentence, however, inadvertently encapsulated the difficulty faced by litigants who approach the Supreme Court with a challenge on a sensitive political or legal issue – the delay in hearing crucial cases rendering the case infructuous.

In the recent past, there have been quite a few of these examples.

Article 370

There are at least 23 petitions pending before the top court challenging the abrogation of Article 370 of the Constitution on the special status of Jammu & Kashmir.

Executive orders passed to amend Article 367 to facilitate the abrogation of Article 370, and ultimately to scrap Article 370 itself, were passed on August 5 and 6 in 2019. The first challenge to the Presidential order was filed on August 9. A plethora of petitions filed by Members of Parliament from the National Conference, Kashmiri citizens, former bureaucrats, and various organizations followed. These petitions raise key questions on federalism and Centre-State relations.

A three-Judge Bench of then Chief Justice of India Ranjan Gogoi and Justices SA Bobde and S Abdul Nazeer had on August 28, 2019 referred the issue to a five-judge Constitution Bench, which then had to hear the issue of whether the matter needed to be referred to a seven-judge Bench.

This, after Senior Counsel Dinesh Dwivedi, who was appearing for an intervenor in the case, had pointed out that two earlier five-judge Constitution Bench judgments of the Supreme Court, Prem Nath Kaul (1959) and Sampat Prakash (1968), are in conflict with each other as regards the scope of Article 370.

In March 2020, the five-judge Constitution Bench held that there was no need to refer the batch of petitions challenging Article 370 to a seven-judge Constitution Bench.

The case has not been heard since.

Habeas Corpus petitions

The abrogation of Article 370 was accompanied by detention of Kashmiri political leaders including former Chief Ministers Mehbooba Mufti and Omar Abdullah.

Abdullah’s detention was challenged in February 2020 by her sister Sara Abdullah Pilot. While notice was issued in the matter, no interim order was passed and the petition became infructuous when Abdullah was released on March 24.

Similarly, Mufti’s detention was challenged in February 2020 and became infructuous eight months later when she was released in October 2020.

Money Bill case

This is perhaps the most significant case pending before the Supreme Court since it directly deals with the powers of the cornerstone of democracy – Parliament.

A Money Bill originates in the Lok Sabha and once passed in the lower house with simple majority, it is sent to the upper house, the Rajya Sabha.

The Rajya Sabha then makes recommendations to the Bill, but the same are not binding on Lok Sabha. Effectively, a Money Bill is a law which can be made by Parliament with a simple majority in the Lok Sabha as is the case with the present government.

Hence, the key issue is what would constitute a Money Bill.

The present government has passed several key laws as Money Bills including the Aadhaar Act and the Finance Act, 2017 though this route, prompting disputes over the classification of these bills as Money Bills.

The case before the Supreme Court is expected to clarify the scope of a money bill and decide on the validity of laws like the Finance Act, 2017 and Aadhaar Act.

The matter has, however, remained pending since 2019. Any law passed by Parliament contentiously as a Money Bill is in a sense rendering the matter infructuous.

Citizenship Amendment Act

Another key case pending before the Court is the challenge to the Citizenship Amendment Act. At least 150 petitions are pending before the top court challenging the same. The Court had issued notice in the case in December 2019 but declined interim relief.

This meant that protests were organised across the country, particularly the national capital. The protestors eventually dispersed after the onset of Coronavirus and the nationwide lockdown imposed in March 2020.

The case has since gone into cold storage.

Electoral Bonds challenge

This is another challenge pending before the Supreme Court, the very purpose of which gets defeated every time an election is held.

An electoral bond is an instrument in the nature of a promissory note or bearer bond which can be purchased by any individual, company, firm or association of persons provided the person or body is a citizen of India or incorporated or established in India. The bonds, which are in multiple denominations, are issued specifically for the purpose of contributions to political parties.

Electoral bonds were introduced through Finance Act, 2017, which in turn amended three other statutes - the Reserve Bank of India Act, the Income Tax Act and the Representation of People Act - for enabling the introduction of electoral bonds.

The Finance Act, 2017 introduced a system of electoral bonds to be issued by any scheduled bank for the purpose of electoral funding. This legislation was passed as a Money Bill, which meant that it did not require the assent of the Rajya Sabha. This, the petitioner submitted in the 2017 petition, was done in order to bypass the Rajya Sabha, where the ruling BJP government does not have a majority.

The Court had in fact rejected a plea for interim relief in March 2021 before the assembly elections to West Bengal, Assam, Tripura, Tamil Nadu and Puducherry.

Given how these challenges often become infructuous owing to their long pendency, it comes as no surprise that people are forced to look beyond the judiciary to solve their issues.

The question posed by the Bench in the farmers protest case - as to why people who approach Supreme Court feel the need protest on the streets -only betrays a lack of self-introspection that the top court needs to undertake.