- Apprentice Lawyer
As the Supreme Court reopens today after the winter break, what lies ahead could be one of the most uncertain years for the top court with the pandemic impacting the functioning of the Court, particularly when it comes to hearing cases of Constitutional importance.
Ever since the country went into a lockdown in March 2020 to prevent the spread of COVID-19, the Supreme Court has been working through video conference. While the court has done a commendable job in hearing cases on life and liberty, matters of crucial legal consequences have been sidelined, albeit unintentionally.
If officers close to the developments are to be believed, the virtual court system is likely to continue for a considerable period this year at least till the vaccines are administered to a sizeable section of the population.
"We started physical courts for limited matters but that was not very successful with cases rising. Virtual courts will continue till vaccines are freely available. Especially since there are judges who are in the elderly category," an officer from the Supreme Court registry told Bar & Bench.
We take a look at how 2021 could pan out for the Supreme Court of India.
The following five Supreme Court judges will demit office this year.
Justice Indu Malhotra: March 13, 2021
Chief Justice of India SA Bobde: April 23, 2021
Justice Ashok Bhushan: July 4, 2021
Justice Rohinton F Nariman: August 12, 2021
Justice Navin Sinha: August 18, 2021
The top court is currently functioning with 30 judges though its sanctioned strength is 34.
After Justice Indu Malhotra retires, Justice Indira Banerjee would be the sole woman judge at the Supreme Court unless a woman High Court judge is elevated.
The Collegium is expected to meet in the coming days to recommend appointments to fill up the vacancies.
Justice Ramana has recently been in the spotlight due to allegations raised against him by Andhra Pradesh Chief Minister YS Jaganmohan Reddy that Justice Ramana is managing appointments and roster at the Andhra Pradesh High Court to favour the opposition Telugu Desam Party (TDP).
The allegations which were initially sent in a letter format to CJI Bobde were subsequently placed as an affidavit.
The lockdown due to the Coronavirus pandemic has affected the functioning of all courts in the country. Most courts are only taking up extremely urgent cases (cases which directly and immediately impact liberty and livelihood of persons) for hearing and such cases are being heard through video conference
The Supreme Court is no exception with the hearings happening via video conference since March 23, 2020.
Some of the crucial cases which are pending before the top court are as follows:
1. Challenge to the abrogation of Article 370 of the Constitution of India
The challenge to the abrogation of Article 370 of the Indian Constitution, has been pending before the apex court since August 2019.
The Court is hearing at least 23 petitions challenging the Central government's decision to scrap Article 370 thereby revoking the special status of the erstwhile State of Jammu and Kashmir.
The matter was last listed on March 2 when a 5-judge bench Constitution bench of the Supreme Court in a 42-page judgment declined to refer the case to a larger bench of seven judges. The case has not been heard after that.
The case involves significant questions on federalism, Centre-State relations and role of Governor which require Court's adjudication.
2. Challenge to Citizenship (Amendment) Act, 2019
One of the most important cases pending before the top court which has been delayed due to Corona induced lockdown is the challenge to the Citizenship (Amendment) Act (CAA) of 2019. More than 150 petitions are pending before the top court on this issue.
A Bench of CJI SA Bobde and Justices BR Gavai and Surya Kant had issued notice to the Central government on December 18, but refused to stay the Act. The Court had remarked that the prayer for stay will be considered later.
The case was last heard on February 18 when the court granted time to the Central government to file its response. The Centre filed its response on March 17, stating that the CAA is intended to tackle the problem of religious persecution in certain specific countries and that it will not affect the rights of any of the Indian citizens.
When the matter was mentioned by Senior Counsel Kapil Sibal on March 5 for early hearing, the CJI hinted that the matter will be heard soon after the conclusion of the hearing in the Sabarimala reference case. He also granted liberty to Sibal to mention the matter again after the Holi break.
However, as luck would have it, the Court went into restricted functioning immediately after Holi break and the matter has not been heard since then.
3. Faith v. Rights: Sabarimala and other cases
Another important case which was slated for hearing in March was the case involving legal questions on entry of women into the Sabarimala temple and other gender-related questions in other religions.
Aside from the Sabarimala case, there are three other cases raising similar legal questions. These concern rights of Muslim, Parsi and Hindu women vis-à-vis religious practices.
One is a petition seeking the entry of Muslim women into mosques while the other is a challenge to the practice of female genital mutilation practised by the Dawoodi Bohra community.
The third case relates to the restrictions placed on Parsi women to enter the holy fire place of an Agyari (fire temple) if they marry non-parsis.
A nine-judge bench was constituted to deal with larger questions arising out of these cases after a November 14, 2019 judgment rendered by a five-judge bench hearing the review petitions in the Sabarmiala case. Under review was a September 2018 judgment where entry into the Sabarimala temple was made open to all women irrespective of their age.
The court in its November 14 judgment had observed that the practices entailing restrictions on the entry of women in places of worship were not limited to the Sabarimala case but also arose in respect of the three above-mentioned cases.
Thus, the court had said that the issues concerning women’s rights vis-à-vis religious practices require consideration by a larger bench of not less than seven judges so as to ensure that a judicial policy is evolved to do substantial and complete justice. The Court had also framed seven questions to be decided by the larger bench. It added that the Sabarimala review petitions should be decided only after the larger legal issues are settled.
However, this November 14 judgment came under scrutiny since it was argued that the court cannot frame legal questions or refer matter to larger Benches when hearing review petitions.
On February 10, the Court shot down this challenge and held that questions can be referred to a larger Bench even in review petitions.
Later, CJI Bobde told in open court on March 5 that the matter would be heard by a nine-judge bench from March 16.
But the court functioned only in a restricted manner in the week of March 16 and the case was not taken up. Subsequently, the national lockdown was announced on March 24 and the Court was constrained to limit its functioning.
4. Use of the money bill route
The contentious issue of the government adopting the money bill route to get laws passed in the Parliament is another crucial case pending before the Supreme Court.
This matter has to be heard by a bench of seven judges, though there is no clarity on when it will be heard.
A money bill originates in Lok Sabha. Once passed in the Lok Sabha by a simple majority, it is sent to the Rajya Sabha for its recommendations. The recommendations made by Rajya Sabha on money bills are not binding on Lok Sabha which may choose to reject it.
The current government which still does not have a majority in the Rajya Sabha has used the money bill route on more than one occasion to pass contentious laws.
In a challenge to the Finance Act, 2017, which was passed as a money bill, a five-judge Bench of the Court on November 13, 2019 held that its earlier judgment in the Aadhaar case approving the money bill route needs to be reconsidered. It, therefore, referred the issue to a bench of seven judges.
Thus, the fate of Aadhaar judgment and the Aadhaar scheme itself depends on the outcome of this larger legal issue.
5. Creamy layer
The issue relating to applicability of creamy layer principle to Scheduled Castes and Scheduled Tribes is another case in which is awaiting hearing by the top court.
The Central government has urged the Supreme Court to reconsider its 2018 judgment in the case of Jarnail Singh, in which the Court had ruled that the principle of creamy layer, previously applicable to Other Backward Castes (OBCs) should be applied to Scheduled Caste/Scheduled Tribe (SC/ST) communities for reservation in promotions.
‘Creamy layer’ who are better-off individuals among other backward classes, are ineligible for reservations as per the Mandal Commission provisions. Whether a person falls under 'creamy layer' category is determined based on economic parameters.
For OBCs, the creamy layer would cover households with an annual income in excess of Rs 8 lakh a year.
The centre is against the application of this principle to SC/ST communities on the ground that they have been discriminated against for centuries and should get reservation benefits despite economic advancement.
In 2018, the Supreme Court in the judgment in Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors. had held that the principle of a creamy layer, previously applicable to Other Backward Castes, should be applied to SC/ST communities as well for reservation in promotions.
6. Challenge to constitutionality of 2019 amendments to RTI Act
Another important plea pending before the Supreme Court is the petition filed by Congress MP Jairam Ramesh who has challenged the Constitutional validity of the 2019 amendments made to the Right to Information Act (RTI) giving the Centre authority to decide the tenure, salaries and service terms of the Chief Information Commissioner and Information Commissioner.
It was in January last year that Supreme Court had issued notice in the plea.
During the debate in the Rajya Sabha on the Right to Information (Amendment) Bill, Ramesh had cited five reasons behind the government's move to "dilute" the Act. He also raised questions on the timing of bringing the amendments to the Bill, which mandates a timely response to citizen's requests for government information.
The five cases he mentioned to strengthen his case included the Central Information Commission's (CIC) order on disclosure of Prime Minister's educational qualification, allegedly false claims made by the Prime Minister on bogus ration cards, the CIC's revelation that the RBI had disapproved demonetisation, that the then RBI Governor Raghuram Rajan had given a list of top NPA defaulters and the value of black money brought back from abroad.
7. EWS Reservation
A five-judge Constitution Bench will decide on a batch of pleas that challenge the Constitution (One Hundred and Third) Amendment Act, that introduced 10% reservation for the Economically Weaker Sections (EWS). The Centre has defended its new law on the grounds that the amendments are intended to bring about "social equality".
8. Challenge to IBC code provisions
A batch of petitions challenging provisions of the Insolvency and Bankruptcy Code (IBC) that allow initiation of insolvency proceedings against personal guarantors is also pending before the apex court.
On November 15, 2019, the Centre published the IBBI (Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Regulations, 2019 with effect from December 1, allowing lenders to simultaneously haul companies and personal guarantors before the National Company Law Tribunal (NCLT).
This means, if an individual has executed a deed as a personal guarantor to avail a loan for a company, the lender can now recover dues from both parties.
The Court's decision in this regard is eagerly awaited as it would impact industrialists such as Anil Ambani, Prashant Ruia of Essar Steel, Amtek Auto's Arvind Dham, Venugopal and Saurabh Dhoot from Videocon Group, etc.
9. Challenge to constitutionality of Farm Acts
There are 8 petitions pending in the Supreme Court challenging the Farmers Produce Trade and Commerce (Agriculture and Promotion) Act, 2020, Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 and the Essential Commodities (Amendment) Act, 2020.
Though the CJI led bench is now focusing on the farmers protests near the Delhi borders and how they can bring about a resolution of deadlock between the farmers and the government, an eventual decision on the challenge will be crucial as farmers maintain that the laws must be repealed.
10. Electoral bonds
The challenge to the Constitutionality of the Electoral Bonds scheme is another crucial case still pending before a Bench led by chief Justice SA Bobde. In January 2020, the Court declined to stay the scheme and opted to adjourn the matter. With the COVID-19 pandemic coming in, the case did not make any headway in 2020.
The main petition in the case was filed in 2017 and challenges as many as five amendments brought to various legislations in order to facilitate the implementation of the scheme for electoral bonds. The Centre has opposed the challenge, asserting that this ‘alternate system’ would promote transparency and accountability in funding and donations received by political parties in India. The Election Commission of India, however, registered its disagreement, contending that the scheme would affect the transparency of political funding.
A Bench headed by Chief Justice Ranjan Gogoi actually reserved orders in the matter in April 2019, after Attorney General buttressed the Central government's stance, contending in open Court that "voters don't need to know where money of political parties comes from."
However, the following day, the Court confined to directing all the political parties to disclose details of the donations received by them through electoral bonds to the Election Commission of India. Rather than give a conclusive ruling at the time, the Bench opined that the petition gave rise to “weighty issues” which need an in-depth hearing and which cannot be concluded in the limited time that was available before the Court. Thus, an interim order was passed, keeping in mind that the interim arrangement “does not tilt the balance in favour of either parties.”
The matter remains pending and it is unclear when the Supreme Court will take it up next.
Apart from the cases to look forward to, two judgments which are eagerly awaited are:
Justice Ashok Bhushan led bench of the Supreme Court will deliver its verdict on a batch of pleas pertaining to the banks' decision to charge interest on EMIs that remained unpaid by borrowers after they availed the Reserve Bank of India's loan moratorium scheme introduced between March 1 to August 31 in the wake of COVID-19 pandemic.
The Supreme Court will also give a verdict that would clarify on how sector specific loans need to be restructured.
The other judgment due to be pronounced concerns the corporate battle between TATA sons and Cyrus Mistry, wherein the December 2019 National Company Law Appellate Tribunal (NCLAT) decision reinstating Shapoorji Pallonji heir Cyrus Mistry to Tata Sons has been challenged.
The CJI SA Bobde led bench had heard the case for about a week at a stretch and is likely to deliver a verdict before CJI Bobde retires in April, this year.