Landmark Judgments Awaited In The Last Working Month Of CJI Misra

Hectic days are ahead for Chief Justice Dipak Misra, who has 18 working days left before his retirement on October 2. In these days the country will await judgments in reserved by the bench presided by him in several high profile cases, which could change the course of current constitutional and political narrative.1. Legality of AadhaarThe marathon hearing in the case challenging the validity of the Aadhaar project, which lasted for 38 days, holds the record for longest hearing before the Supreme Court, after the Kesavandana Bharathi case. The bench of five judges- CJI Misra, Justice A K Sikri, Justice A M Khanwilkar, Justice D Y Chandrachud and Justice Ashok Bhushan- reserved verdict on May 10.The petitions were originally filed challenging collection of biomterics under the aadhar project. Meanwhile, the Aadhaar Act was passed by the Parliament in March 2016. Thereupon, petitions were filed challenging the provisions of the Act, and also the mode of passing the Act by the Parliament by treating it as a money bill.The question whether right to privacy is a fundamental right under the Constitution arose during the course of Aadhaar-hearing. Therefore, the judgment will definitely see the application of Puttaswamy judgment, where a nine-judges' bench declared privacy to be a fundamental right. 2. Validity of Section 377 IPC.Section 377 of Indian Penal Code, which criminalizes homosexuality and non-penovaginal sexual acts as 'unnatural sex', is a product of Victorian morality, and the SC is set to decide whether the provision should be retained in the statute book any longer. The Constitution Bench headed by CJI Misra reserved judgment on July 17, after four days of hearing. The Court expressed that it will examine whether its is permissible under Constitutional morality to criminalize sexual acts performed by consenting adults.Although the Delhi High Court had struck down the provision in 2009, it was revived by the Supreme Court in 2013 in a widely criticised judgment by a Division Bench of Justice G S Singhvi and Justice S J Mukhopadhyaya. The matter seemed to have achieved finality, when the review petitions and curative petitions against the judgment were dismissed.However, the issue resurrected in July 2016, when a fresh petition filed by well-known persons, including dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur, was referred to Constitution Bench by a Division Bench headed by Justice Bobde. The reference was made on the basis of submission that it was the first time that individuals directly affected by the provision were approaching the Court.The SC judgment in privacy case noting that 'sexual orientation' was a facet of privacy right, brought in a fresh perspective to the issue.3. Sabarimala Women Entry CaseThis case threw up significant Constitutional issues regarding the scope of State interference in religious matters under the garb of reform, and the rights of believers to preserve traditions. While dwelling on the validity of the ban on entry of menstruating women in Sabarimala temple, the Court will have to address several complex issues like whether the ban is protected under right to religious practise under Article 25 or it amounts to gender-based discrimination prohibited under Article 14 & 15. It was also argued that the ban amounted to practise of untouchability. Interestingly, both the petitioners and respondents relied on Article 25 to advance their respective positions.The case witnessed novel arguments regarding the rights of deity to retain its celibate character.The Court will also consider whether Ayyappa devotees constitute a religious denomination having right under Article 26 to preserve their traditions. The judgment in this case could be water-shed moment in the Indian Constitutional history. The matter was reserved on August 1.4. Validity of criminalization of adultery.The case challenging validity of Section 497 IPC raises issues of gender equality and right to personal dignity and privacy. The exemption of women from punishment for adultery was characterised as a patriarchal baggage which treats women as 'chattel' having no agency. Further, the section also exempted sexual act with the wife of another man, if it was performed with the consent or connivance of that man. This was challenged as an affront to personal dignity. Another issue raised was whether it was proper to criminalize a consensual act performed by two adults, even if the act is not in accordance with conventional morality. The Constitution Bench headed by CJI reserved judgment on August 8.5. Disqualification of charge-sheeted politicians from contesting elections.This case sought for barring politicians, who stand charge-sheeted by police for commission of offences, from contesting elections. The disqualification under the Representation of Peoples Act is attracted only after conviction. The petitioners pointed out that trials in cases ...

Landmark Judgments Awaited In The Last Working Month Of CJI Misra

Manu Sebastian

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