“The fate of the judiciary as an institution, and our fate as a democratic nation, hinges on whether we, as a people speak out, or watch passively.”
Justice DY Chandrachud had, in January this year, prophetically remarked that India needed to rethink the power of dissent.
Delivering the presidential address at an event organised by O.P. Jindal Global Law University at the Indian Law Institute on January 11, he had highlighted the three most powerful dissents in the history of the Indian legal system – by Justice Saiyid Fazl Ali, Justice Subbarao and Justice H.R. Khanna – and had hit the nail on its head when he observed that there was perhaps something about Indian culture that made one want to accommodate rather than dissent.
The final week of September was a historic one especially when viewed in the light of these observations made by Justice Chandrachud way back in January, as a sort of fore-shadowing of the powerful dissents that were delivered this week. While several eagerly awaited judgments were delivered one after the other, the week saw dissenting opinions being delivered in four major cases dealt with by the court.
Here is a roundup of twelve such significant judgments, with four of them including powerful dissents:
Constitutional validity of Aadhaar Act upheld, but some provisions struck down [Justice DY Chandrachud dissents]
The Aadhaar judgment was probably the most awaited of the lot. The validity of the Act was upheld by a Bench comprising Chief Justice of India Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, by a 4:1 majority. The majority judgment upheld Aadhaar linkage with most services; however, the linkage and requirement of Aadhaar with mobile numbers and bank accounts was struck down.
The verdict also started the string of dissents last week, with Justice Chandrachud’s emphatic dissent from the majority to hold the entire Aadhar project to be unconstitutional.
The very act of passing the Aadhaar Act, 2016 as a money bill was held to be unconstitutional by him, as against the majority judgment, which held that there was no impropriety in introducing it as a money bill. Using strong language, Justice Chandrachud held that the passing of Aadhaar Act as money bill is a “fraud on the Constitution”.
He went on to hold the Aadhaar project to be violative of informational privacy, opining that the Aadhaar had potential for surveillance, and that the architecture posed risk on the potential violation of leakage of the database.
Justice Chandrachud further asserted that the Aadhaar project, which commenced from 2009, suffered from constitutional invalidity, and also noted that the government has repeatedly violated the interim orders of the Supreme Court, which had prohibited making Aadhaar mandatory for availing benefits.
Based on the premise of unconstitutionality of Aadhaar, Section 139AA of the Income Tax Act, which mandates linking of PAN with Aadhaar, was also struck down. It may be noted that the majority decision has upheld Section 139AA.
You may read: Aadhaar Judgment: Certain Concerns by Dr. Deva Prasad And Suchithra Menon
Bhima Koregaon: No SIT to be constituted [Justice DY Chandrachud dissents]
A three-judge Bench of the Supreme Court, with a 2:1 majority refused to constitute a Special Investigation Team to probe the case concerning the arrest of five lawyers/journalists/human rights activists relating to violence in Bhima Koregaon in January this year.
In his second dissent, Justice Chandrachud observed that “dissent is a symbol of vibrant democracy” and “voices in opposition cannot be muzzled by persecuting those who take up unpopular causes”, to hold that a Special Investigating Team must be appointed to probe the arrest of five activists in connection with the Bhima-Koregaon violence and that the probe must be monitored by the court.
This was as against the majority judgment in the case, with CJI Misra and Justice AM Khanwilkar opining that the petition, at the instance of the next friend of the accused for an independent probe or a court-monitored investigation, cannot be countenanced, much less as a PIL as the petitioners cannot be heard to ask for the reliefs which otherwise cannot be granted to the accused themselves.
Disagreeing with the majority, Justice Chandrachud took note of the “unfair press conference” by the Pune Police, and also spoke about how dissenting voices also have their space under the Constitution.
“Individuals who assert causes which may be unpopular to the echelons of power are yet entitled to the freedoms which are guaranteed by the Constitution. Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes. Where, however, the expression of dissent enters upon the prohibited field of an incitement to violence or the subversion of a democratically elected government by recourse to unlawful means, the dissent ceases to be a mere expression of opinion,” he observed.
Soon after the pronouncement of the judgment, the five petitioners had held a press conference, and had hailed Justice Chandrachud’s opinion as a vindication of their stand, noting, “Our stand in this case finds vindication in the dissenting opinion of J. Dr. DY Chandrachud who has categorically held that liberty cannot be sacrificed at the altar of conjecture, and that the police had been taking liberties with the truth and besmirching the reputation of the activists by doing a media trial. Under such circumstances, the police’s ability to conduct a free, fair and impartial investigation is in serious doubt, as has been held by J. Dr. DY Chandrachud.”
You may read: Bhima Koregaon: Blind Spots Of Majority Judgment by Manu Sebastian
Ram Mandir-Babri case not being referred to a Constitution Bench [Justice S. Abdul Nazeer dissents]
A three-judge Bench comprising CJI Misra and Justices Ashok Bhushan and S Abdul Nazeer ruled by a 2:1 majority, that the question of a Mosque’s essentiality In Islam for offering Namaz need not be referred to a larger Bench.
The majority judgment, authored by Justice Ashok Bhushan, for himself and CJI Misra, clarified that the observations made in the Dr. M. Ismail Faruqui and Ors. Vs. Union of India and Ors. judgment, that mosque was not an integral part of Islam, have to be understood in the context of land acquisition proceedings.
Justice S. Abdul Nazeer, however, opined that four questions needed to be referred to a larger bench, including the question whether Article 25 only protects belief and practices of particular significance of a faith or all practices regarded by the faith as essential; and whether Articles 15, 25 and 26 (read with Article 14) allow the comparative significance of faiths to be undertaken.
He asserted that what constitutes essential part of a religion is primarily to be ascertained with reference to the doctrine, tenets and beliefs of that religion itself. He then opined that the conclusion in paragraph 82 of Ismail Faruqui that "A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open" was arrived at without undertaking comprehensive examination.
As for the question about the impugned judgment being affected by the questionable observations in Ismail Faruqui, he opined that the “the impugned judgment can be claimed to be both expressly and inherently affected by the questionable observations made in Ismail Faruqui.”
You may read: [Ayodhya] “Here Is A Small Piece Of Land Where Angels Fear To Tread”: SC Reminds About Messages Given By Justices JS Verma & Justice SU Khan by Ashok Kini
Women of all ages can now enter Sabarimala temple [Justice Indu Malhotra dissents]
The Supreme Court, with a 4:1 majority, struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, paving way for entry of women between the ages 10 and 50 into the Sabarimala temple.
The Bench comprised CJI Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra. However, much to everybody’s surprise, Justice Indu Malhotra, the sole woman judge on the bench, dissented from the majority ruling.
Justice Malhotra asserted that it is not for courts to decide what constitutes an “essential religious practice”, and that interfering with such practices, which are considered to be essential or integral to the temple, would conflict with the rights of the devotees guaranteed by Article 25(1) to worship Lord Ayyappa in the form of a ‘Naishtik Brahmachari’.
“Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts,” she explained.
You may read: Reading Sabarimala Judgment In The Light Of Post Judgment Public Debates by Dr. Sandhya Ram
Candidates cannot be disqualified on framing of charges in criminal case
A five-Judge bench of the Supreme Court held that candidates cannot be disqualified merely because charges have been framed against them in a criminal case. The bench, however, issued a slew of directions with the objective of reducing criminalization of politics.
The court asserted that despite its institutional limitations, it cannot remain oblivious to the problem. Observing that “criminalization of politics is an extremely disastrous and lamentable situation”, it held:
“Disclosure of antecedents makes the election a fair one and the exercise of the right of voting by the electorate also gets sanctified. For democracy to survive, it is essential that the best available men should be chosen as the people‘s representatives for the proper governance of the country. The best available people, as is expected by the democratic system, should not have criminal antecedents and the voters have a right to know about their antecedents, assets and other aspects.”
MPs/MLAs not barred from practicing law
The Supreme Court declined to place fetters on legislators practising law. The argument that being a legislator is a full time engagement which affects their commitment to legal profession was rejected by the bench of CJI Dipak Misra, Justice A M Khanwilkar and Justice D Y Chandrachud.
“Legislators cannot be styled or characterized as full-time salaried employees as such, much less of the specified entities. For, there is no relationship of employer and employee,” held the judgment authored by Justice AM Khanwilkar.
The court further rejected the argument that lawyers being legislators would amount to professional misconduct, observing, “whether it is a case of conflict of interest or professional misconduct would depend on the facts of each case. That fact will have to be pleaded and proved before the Competent Authority. There can be no presumption in that regard, merely on account of the status of being a legislator”.
The decision serves as a reprieve to Senior Advocates Kapil Sibal, Abhishek Manu Singhvi, P. Chidambaram, KTS Tulsi, Ashwini Kumar and Advocate Meenakshi Lekhi, who are currently MPs.
Three member committee to look into prison reforms
A three-judge bench comprising Justice Madan B. Lokur, Justice S. Abdul Nazeer and Justice Deepak Gupta constituted a three member committee headed by former SC judge, Justice Amitava Roy to look into issues of reforms in prison administration and prison management.
The committee will also comprise of Inspector General of Police, Bureau of Police Research and Director General (Prisons) Tihar Jail as its members.
Creamy Layer Test Can Be Applied To Promotions Of SC/STs; Nagraj verdict not referred to a larger bench
A five-judge Constitution Bench of the Supreme Court ruled that the judgment in the case of M. Nagaraj & Others v. Union of India & Others, relating to reservations for Scheduled Castes and Scheduled Tribes in promotions, need not be referred to a larger bench for consideration.
The verdict was delivered by a Bench comprising Chief Justice of India Dipak Misra and Justices Kurian Joseph, RF Nariman, SK Kaul and Indu Malhotra.
The judgment, authored by Justice Nariman, affirmed that when M. Nagaraj applied the creamy layer test to Scheduled Castes and Scheduled Tribes while upholding the constitutional amendments leading to Articles 16(4-A) and 16(4-B), it did not in any manner interfere with Parliament’s power under Article 341 or Article 342. Therefore, the Constitution Bench held that there was no necessity to revisit Nagaraj judgment in so far as it applied the creamy layer test. It, however, clarified that the direction in Nagaraj judgment which required State governments to collect quantifiable data to ascertain backwardness of a community is bad in law.
India To Get Virtual Access To Courtroom Proceedings
Providing “virtual access to courtroom proceedings as they unfold”, the Supreme Court opened its doors for live streaming of cases of constitutional and national importance, barring those involving juveniles, cases of sexual assault, matrimonial issues, being argued for final hearing before the Constitution Bench.
The judgment was passed by a bench comprising CJI Misra, Justice AM Khanwilkar and Justice DY Chandrachud. Allowing live streaming of cases, Justice Chandrachud said, “Sunlight is the best disinfectant. Live-streaming as an extension of the principle of open courts will ensure that the interface between a court hearing with virtual reality will result in the dissemination of information in the widest possible sense, imparting transparency and accountability to the judicial process.”
You may read: Meet The Law Students Who Fought For Live-Streaming Of Court Proceedings by Apoorva Mandhani
159 year old adultery law struck down
A five-judge bench of the court struck down 158 year old Section 497 of the Indian Penal Code, which criminalizes adultery, as unconstitutional. The verdict was delivered unanimously by a bench comprising CJI Misra, Justice RF Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra.
Section 497 punished a married man for having sex with wife of another man. However, the sexual act was exempted from punishment if it was performed with the consent or connivance of the husband of the other woman. The provision also exempted the wife from punishment and stated that the wife should not even be treated as an abettor.
The bench now held that the provision violated a woman’s right to dignity, resulting in infringement of Article 21 of the Constitution of India. The judgment borrows from the findings of Justice Nariman’s judgment in the Triple Talaq case. It, however, clarified that adultery will be a ground for divorce.
Differently-Abled/Visually-Impaired Persons Not To Be Deprived Of Benefits Of RTI Act
While disposing of a petition challenging Section 6 of the Right to Information Act for its ‘discrimination’ against the illiterate persons, the visually impaired persons or persons afflicted by other kinds of disabilities, the bench comprising CJI Misra and Justices AM Khanwilkar and DY Chandrachud directed the petitioner to submit a representation to the competent authority pointing out any other mode(s) available for getting information under the RTI Act.
The Bench ordered, “If such a representation is submitted, the same shall be dealt not only with sympathy but also with concern and empathy. We say so as differently abled persons, which include visually impaired persons, should have the functional facility to receive such information as permissible under the Act. They should not be deprived of the benefit of such a utility. As indicated in the beginning, the information makes one empowered. Additionally, we think it appropriate to ask the authorities to explore any kind of advanced technology that has developed in the meantime so that other methods can be introduced.”
Stay of conviction by appellate court will remove disqualification of MPs & MLAs under section 8 of Representation of Peoples Act
A Bench comprising CJI Misra and Justices AM Khanwilkar and DY Chandrachud affirmed that once the conviction of an MP or MLA has been stayed by the appellate court under section 389 of the Cr. P. C., the disqualification under sub-sections 1, 2 and 3 of Section 8 of the Representation of the Peoples Act, 1951 will not operate.
It may be noted that the said Section 389 empowers the appellate court, pending an appeal by a convicted person and for reasons to be recorded in writing to order that the execution of a sentence or order appealed against, be suspended.
The court also clarified that there is no merit in the submission that the power conferred on the appellate court under Section 389 does not include the power, in an appropriate case, to stay the conviction- “Clearly, the appellate court does possess such a power.”