Big Hearings/Judgments Listed Before SC In 2018
2017 had been a happening year in the Supreme Court. LiveLaw now looks at big hearings and crucial judgments listed before the apex court in 2018
JUDGMENTS IN CONSTITUTION BENCH MATTERS
DELHI GOVT Vs LT GOVERNOR POWER TUSSLE: On December 6, a five-judge constitution bench of the Supreme Court comprising Chief Justice Dipak Misra, Justice AK Sikri, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Ashok Bhushan had reserved its verdict on a batch of petitions on the issue whether the Lieutenant Governor or the Delhi government enjoyed supremacy in administration on day-to-day basis. The matter was heard for 15 days. Clutch of appeals filed by the AAP government challenges Delhi High Court's verdict holding the L-G as the administrative head of the national capital. Senior advocate Gopal Subramaniam, who led the charge for the Delhi government, argued that the chief minister and the council of ministers had the legislative power to make laws as well as the executive authority to enforce the enacted statutes. Others who argued for the Delhi government include senior advocates P Chidambaram, Rajeev Dhavan, Shekhar Naphade and Indira Jaising. Additional Solicitor General Maninder Singh argued for the Centre and insisted that the Lt-Governor was the administrative head.
EUTHANASIA/ ‘LIVING WILL’ : The five-judge constitution bench had on October 11 reserved its judgment on a plea filed by NGO Common Cause and argued by noted lawyer Prashant Bhushan for allowing ‘living will’ — a concept where a person decides in advance whether he/she wants to be kept on life support in case of a terminal illness. The NGO sought that a person suffering from terminal illness should be allowed to execute his/her ‘living will’ indicating that he/she should not be kept on life support system in case there is no hope for cure. The SC was of the opinion that there should be guidelines for drafting ‘living wills’ and authenticating them. The bench said advance directive by a person in the form of ‘living will’ may be approved by a magistrate. The NGO argued that the right to die peacefully was part of right to life guaranteed under Article 21 of the Constitution.
Bhushan had said since a patient under coma can’t express his/her wish, law should allow him/her to put it down in writing in advance that he/she should not be tortured. In the absence of a law authorizing doctors to do so, they keep incurable patients on life support, he said. In 2011, the SC had ruled in favour of passive euthanasia. The SC had said life support system can be withdrawn on the recommendation of a panel of doctors, consent of family members and permission of high court.
CONSTITUTIONAL VALIDITY OF ADHAAR: Hearing to commence of January 18. On December 15, as an interim order, the constitution bench headed by Chief Justice Dipak Misra and Justice AK Sikri, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Ashok Bhushan, passed a judicial order extending dates for all linkings including Aadhaar-mobile number to March 31, 2018. Earlier the deadline for linking mobile number to Aadhaar was February 6. The government had referred to a notification issued by the Ministry of Finance, which had amended the proviso to Rule 9 (17) (a) of the Prevention of Money Laundering (Maintenance of Records) Rules of 2005 to remove the December 31 deadline. The notification also had substituted Rule 9 (17) (c), which said bank accounts would cease to operate if they were not linked with Aadhaar by December 31. The bench said since the deadline has been extended to March, the final hearing on the very validity of Aadhaar scheme, challenged in 24 separate petitions, can be scheduled for January. Subsequently, the court fixed the date as January 17, 2018.
The constitution bench of the Supreme Court will decide the religious identity of a Parsi woman after her marriage under the Special Marriage Act.
OTHER IMPORTANT MATTERS
On December 5, amidst a high-voltage hearing, the Supreme Court bench headed by Chief Justice Dipak Misra rejected a request by some pro-Masjid individuals, Sunni Wakf Board and Babri Masjid Action Committee to defer the hearing to post-July 2019 and fixed the hearing for February 8, 2018. To the surprise of all, senior advocate Kapil Sibal, appearing for some individuals, said the case had a huge political ramification and the hearing was being expedited on the plea by a person who is not even a party in the case (referred to BJP leader Subramanium Swamy without naming) just to fulfill a promise-something mentioned in the party manifesto. The Advocates-on-Record have been asked to “sit together”, work in harmony and see to it that the documents are filed within a timeframe. Directing that the matter be listed on 8.2.2018, the bench said: “We are sure that learned counsel for the parties will come prepared to argue the matter and shall not seek any adjournment. However, the Advocates-on-Record shall intimate to the Registry as directed herein above, and if the Registry finds that the matter is incomplete for some reason or the other, it shall place the matter before the learned Chief Justice of India on the administrative side for fixing a date for completion of the record.” Next hearing on February 8.
Hearing to resume on January 31. On December 5, a bench headed by Chief Justice Dipak Misra posted all petitions relating to deportation of Muslim Rohingya refugees for detailed hearing on January 31. Before adjourning the matter, the Chief Justice asked advocate Prashant Bhushan, who is appearing for main petitioners, challenging the deportation what the status was.
Bhushan replied: “The government may not be taking steps to push them (Rohingyas) them back as of now. But they are conducting some surveys.” The bench had, on October 13, just stopped short of staying the deportation of Rohigya refugees till it decided the petitions challenging the action but asked the Centre to strike a balance between national security and human rights of the refugees.
“Our constitutional ethos makes us lean sympathetically towards humanitarian issues. It is also important not to ignore national and economic interests while dealing with humanitarian issues,” CJI Misra told ASG Tushar Mehta.
Next hearing on the third week of February. On November 27, in a major development in Hadiya case, the Supreme Court freed her from the clutches of her parents who, according to her, had kept her in “unlawful custody” for 11 months. The court was acting on a petition filed by her “husband” Shafin Jahan who challenged the Kerala High Court order which quashed the marriage and gave her custody to her father.
A bench headed by Chief Justice Dipak Misra ordered that she be sent “at the earliest” to Sivaraj Homeo Medical College, Salem, to complete her house surgency. The court ordered that the dean of the college would apply to the apex court in case there are any problems. These problems do not include her studies and admission.
The court posted the case for hearing in the third week of January 2018. It kept open issues like NIA investigation.
On October 30, a two-judge bench of the Supreme Court headed by Justice Dipak Misra said all petitions challenging the validity of Article 35 A which confers special status to Jammu and Kashmir pending before it should ideally go before a five-judge constitution bench. It, however, adjourned the hearing after Attorney General KK Venugopal, for the Centre, said an interlocutor has been appointed who is dealing with it. It included petitions filed by NGO We the Citizen and advocate Charu Wali Khanna. Venugopal sought adjournment by six months to form a “firm opinion” but a bench headed by Chief Justice Dipak Misra gave the government eight weeks.
“If this matter requires to be heard by a five-judge constitution bench, then the three-judge bench which will hear the matter may refer it,” the bench had said. During the hearing, counsel for the Jammu and Kashmir government told the bench that the issue of Article 35 A has been “prima facie settled” by the state high court in its verdict passed in 2002.
Khanna is challenging Article 35A of the Constitution and Section 6 of the Jammu and Kashmir Constitution which deal with the “permanent residents” of the state. The plea has challenged certain provisions of the Constitution which deny property right to a woman who marries a person from outside the state. The provision, which makes such women from the state to lose rights over property, also applies to her son.
On a curative petition filed by Naz Foundation, the Supreme Court had provided a glimmer of hope for the LGBT community by promising a relook into recriminalisation of homosexual acts by a two–judge bench of the SC in December 2013. Three high-profile celebrities working in the sphere have also approached the Supreme Court seeking quashing of Section 377 of the IPC. The SC judgment declaring privacy as a fundamental right has brought cheers to India’s gay and lesbian community fighting to scrap Section 377 IPC and raised their hopes. Describing “sexual orientation an essential attribute of privacy”, four judges in the bench, including Chief Justice JS Khehar, dealt a killer blow to the December 2013 verdict recriminalising homosexual acts. Chief Justice JS Khehar, Justice RK Agrawal, Justice S Abdul Nazeer and Justice DY Chandrachud of the ‘right to privacy’ bench said in the judgment: “The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14 (right to equality), 15 (discrimination on grounds of sex) and 21 (right to life and personal liberty) of the Constitution.”
Next hearing on January 22. On December 12, a three-judge special bench headed by Chief Justice Dipak Misra began detailed hearing of the review petition filed by four death row convicts in the sensational 2012 Nirbhaya gangrape and murder case. On May 5 this year, the SC had confirmed the death sentence awarded to the accused by the trial court and Delhi High Court. The bench on December 12 reserved judgment pertaining to convict Mukesh's case after his lawyer ML Sharma concluded arguments and Special Public Prosecutor Sidharth Luthra finished his counter. The review plea of remaining three convicts Vinay, Akshay and Pawan will be heard on January 22.CAUVERY