Key SC judgments that marked 2020
From internet restoration in Kashmir to permanent commission for women officers, the top court gave some important verdicts in a year when virtual was the new normal
Utkarsh Anand
letters@hindustantimes.com
New Delhi : The Supreme Court , once a hive of activity, remains quiet, but since March 23, when the courts started virtual hearings, life has returned to some sort of new normal : the court rooms have been substituted by virtual courts; paper books by computer files; judges conduct hearings through video conferencing; and technology largely determines success of a hearing, if not the outcome. But the year 2020 was as striking as any other year for the Supreme Court of India. A rundown of the outgoing year shows an assortment of crucial judgments, including a few that changed the landscape of judicial history.
Access to Internet equivalent to a fundamental right
The first month of 2020 witnessed a three-judge bench ruling against the telecommunication blackout in Jammu and Kashmir following the scrapping of Article 370. The judgment did not directly order for restoration of the services in the backdrop of the security concerns, but laid down an important principle in law – right to access Internet is a fundamental right by extension. Therefore, it can be demanded as such before a constitutional court. Further, every blackout order must specify reasons and has to be reviewed regularly by the authorities concerned, the court said.
Consider taking away power of disqualification from the Speaker
The Speaker also belongs to a political party, emphasised the court, requesting Parliament to amend the Constitution and strip Legislative Assembly Speakers of their exclusive power to disqualify MLAs. The court was hearing an appeal by a Congress MLA from Manipur, who complained against a delay by the Speaker in deciding a disqualification petition against another MLA who won on a Congress ticket but later joined the Bharatiya Janata Party (BJP).
The court maintained that disqualification cases of either MPs or the MLAs should be decided by an independent tribunal, outside Parliament or legislative assemblies. In this case, the court said it was bound by existing laws and thus asked the Speaker to decide the disqualification petition preferably within three months.
Anticipatory bail cannot have a deadline
A five-judge bench cleared the confusion on whether the protection given to a person through anticipatory bail was time-bound, as it ruled that a pre-arrest bail cannot be subject to time constraints and that it can very well continue till the end of trial. The bench added a caveat that if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.
No fundamental right to reservation
In February, the top court ruled that there is no fundamental right to claim reservation in public jobs; it added that no court could ask a state government to provide reservation. Explaining the constitutional mandate on providing reservation, the court held that it is within absolute discretion of a state government to decide whether or not to provide for reservation, and that there is no obligation on the states to mandatorily do so. It also clarified that a previous five-judge bench ruling on the necessity to collect data regarding inadequacy of representation of Scheduled Castes (SCs) and Scheduled Tribes (STs) in government services was confined only to situations when a state wants to provide reservation but not otherwise. The judgment came when the court dealt with a bunch of cases on reservations for people from SCs and STs in promotions in a government department in Uttarakhand.
Permanent Commission for women in armed forces
The year 2020 also saw the Supreme Court smashing the glass ceiling in services as it granted Permanent Commission (PC) to women officers in army, navy and air force. The deeply entrenched stereotype that men are dominant and women are primarily caretakers must end, said the court in a series of rulings in February when it struck down a 2019 circular that foreclosed the chances of women officers to apply for PCs. It directed the government to give PC to all serving women officers who have completed 14 years of service and to also give pensionary benefits to those who were retired on account of not being granted the commission. It added that service conditions of men and women officers would be the same and that the latter shall also be provided with choices of specialisations. Even for command assignments, there can’t be an absolute exclusion of women officers and they should be considered on a case-by-case basis, the court said.
Cloud over land acquisition law cleared
Following a stark difference of opinion between different benches of the apex court and a stalemate across various high courts where land acquisition cases remained pending, a five-judge bench overturned a 2014 ruling that was being followed widely. The bench held that land acquisition proceedings under the 1894 Act will not lapse if compensation payable to the landowner has been tendered by depositing it in the treasury, and not in the court or with the landowner. The 2014 ruling held that compensation would be treated as “paid” only if it were deposited in the court, not the treasury. The previous ruling had said that the land acquisition proceedings would have to be initiated again under the new law, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation Act, 2013 and the acquisition process under the old 1894 Act would automatically lapse if the developer had not taken control of the land for five years, or if compensation was not paid to displaced farmers. Acquisition proceedings under the 2013 Act gave land owners a chance to demand higher compensation for acquisition of their land by the government.
Political parties must publish criminal records of selected candidates on websites
Pushing for electoral reforms as it always has, the Supreme Court directed political parties to publish the entire criminal history of their candidates for assembly and Lok Sabha elections, along with the reasons that prompted them to field suspected criminals . The court held that the information should be published in a local as well as a national newspaper as well as on the parties’ social media handles. It should mandatorily be published either within 48 hours of the selection of candidates or less than two weeks before the first date for filing of nominations, whichever is earlier, the court said.
Amendments in the SC/ST act upheld
After a smaller bench tweaked some mandatory provisions of the Scheduled Castes and Tribes (Prevention of Atrocities) Act (SC/ST Act) and laid down several requirements before registration of an FIR and arrest of an accused, a three-judge bench affirmed the Central government’s amendments to restore the original provisions of the law. The bench held that a preliminary inquiry is no longer a must when a complaint under this law is made. Also, no prior approval of appointing authority or a senior police officer is required before registration of an FIR. Further, there cannot be anticipatory bail in these cases until a court is satisfied that no case under the SC/ST Act is prima facie made out.
RBI ban on cryptocurrency set aside
The top court left the door ajar for cryptocurrency in India as it quashed a 2018 circular by the Reserve Bank of India (RBI) putting a complete ban on banking services for the virtual currency. The court held the 2018 circular as unreasonable and disproportionate to the objective sought to be achieved by RBI, clearing the decks for a regulatory regime of cryptocurrency in India instead of a complete ban. The 2018 circular stated that the entities regulated by RBI are prohibited from providing any service in relation to virtual currencies, including those related to the transfer or receipt of money in accounts relating to the purchase or sale of virtual currencies.
SC disapproves ex post facto’ Environmental Clearance
The Supreme Court held that the concept of ‘ex post facto’ Environmental Clearance (EC) is against the fundamental principles of environmental jurisprudence. In its judgment in April, the court said that allowing industrial projects operate without EC would prove detrimental to the environment and lead to irreparable degradation. It further noted that a retrospective or an ex post facto environment clearance is “alien to environmental jurisprudence” because, before the issuance of an EC, the statutory notification (EIA notification 2006) warrants careful application of mind and a study into the likely consequences of a proposed activity on the environment. Significantly, this verdict came at a time when the draft of the Environment Impact Assessment (EIA) notification 2020, to replace the EIA notification 2006, was floated. The new law proposed a lifeline for industrial projects that start operating without a valid EC.
NEET will be the only entrance for medical admissions
The Supreme Court put an end to all speculation and confusion when it ruled in April that the National Eligibility Entrance Test (NEET) would be the only uniform entrance test for medical admissions in the country, and that no institution could hold its separate exam. It held that minority institutions, deemed universities, and private colleges must also abide with the pertinent regulations and that they cannot claim violation of their rights to admit students since NEET is in the larger national interest. The court dismissed a clutch of petitions by religious and linguistic minority institutions, which opposed various notifications and rules made in the Medical Council of India Act and Dentist Act in order to prescribe NEET as the all-India exam for admissions to graduate and post-graduate medical courses.
Nine-judge bench should decide Faith vs Right to pray
By referring the issue to a bench of nine judges, the apex court kept the issue of entry of women of all ages to Kerala’s Sabrimala temple alive without setting aside the previous ruling allowing such access. It turned down objections by a set of parties, pointing to a bunch of other cases raising the similar issues relating to entry of women in places of worship of various religions, including mosques and fire temples. Holding that no matter is beyond the jurisdiction of the apex court, the nine-judge bench, headed by Chief Justice SA Bobde, noted that the reference was required to “do complete justice” in a pending matter, namely Sabarimala. While the matter was referred to the larger bench in February itself, the reasons behind the decision were released only in May.
Suo motu public interest litigation on migrants’ crisis during Covid-19 lockdown
Initially hesitant, the Supreme Court in May commenced suo motu (on its own) proceedings in a bid to ameliorate the problems faced by migrant workers left stranded in different parts of the country due to the coronavirus-induced lockdown. After hearing the Centre and states, it directed that all migrant workers wishing to go back home must be transported within a fortnight. For those who already returned, the court ordered states and union territories to ensure registration (of around 10 million migrant workers) at village and block levels to identify their employability and provide them jobs in the home states. This order, however, came at least a month after a different bench in the top court expressed satisfaction at the steps being taken by the government and said the situation did not seem to be a “crisis” -- a term used in the suo motu order though. The court has since initiated two other suo motu cases with respect to treatment facilities and spread of the infection in the child protection homes.
Contempt petition against noted lawyer Prashant Bhushan and Re 1 fine
Anguished at two of his tweets targeting Chief Justice of India (CJI) SA Bobde and the former CJIs, the top court initiated criminal contempt petition against activist-lawyer Prashant Bhushan. Bhushan did not apologise and stood firm on his assertions regarding the last four CJIs and their alleged role in destruction of democratic values. “To assume and suggest that ‘CJI is the SC, and SC is the CJI’, is to undermine the institution of SC,” said the lawyer as he opted not to yield despite repeated exhortation by the judges on the bench that the proceedings could be dropped the moment he said sorry. In August, Bhushan was finally held guilty of the contempt, only be sentenced to a fine of Re 1 . The lawyer deposited the fine but also sought a right of intra-court appeal to challenge this order. Bhushan’s petition to reconsider his conviction under contempt charge is also pending.
Daughters’ right in a Hindu Undivided Family (HUF) property
In 2005, a watershed amendment was made in the Hindu Succession Act, 1956 to give daughters the same rights in the coparcenary (parental) property as the sons. But two judgments by the top court gave conflicting decisions as to whether it was necessary for a man to be alive on the date of the 2005 amendment to give his daughter the right in the parental property. A three-judge bench settled this dispute in August when it ruled that a right of the daughter is secured at the time of her birth. The father being alive or not on the date of the amendment will not affect her rights in any manner. It said: “A son is a son until he gets a wife. A daughter is a daughter throughout her life...The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she must have been once in that state) to claim the benefit...(Otherwise, it would be) unfair, gender-biased and unreasonable.”
CBI probe in actor Sushant Singh Rajput’s death case
While the mystery remains to be solved, the Supreme Court in August ordered for a CBI investigation into Sushant Singh Rajput’s death , and directed the Maharashtra government to render all assistance. The court rejected Maharashtra government’s argument that Rajput’s father could not have got an FIR registered at Patna, which later formed the basis for the Bihar government to recommend a CBI probe. The top court delivered the verdict on a plea of actor Rhea Chakraborty who sought transfer of FIR lodged against her at Patna to Mumbai where the 37-year-old Rajput was found dead inside his apartment in suburban Bandra.
Public spaces cannot be occupied indefinitely by protesters
In the context of protests in Delhi’s Shaheen Bagh area against the Citizenship Amendment Act (CAA), the apex court held that occupation of public roads and public spaces in exercise of the right to protest is not permissible under the law. It added that notwithstanding the fact that the right to protest is a right guaranteed under the Constitution, protests have to be in designated areas after due approvals from the authorities concerned. The court also obligated the law enforcement agencies to act, saying the administration must keep public spaces free from obstructions and that they cannot wait either for an order from the court or go on having endless talks with the protesters.
A woman’s right to a shared household
By a judgment in October, the Supreme Court broke new ground when it ruled that a woman facing domestic violence has a right to reside in a shared household even if it is owned or rented by her in-laws and the husband has no legal right in the property. It said the household may even belong to a joint-family or be rented by the woman’s in-laws but the complainant still has a right to reside in it if she has been living there after her marriage. It would also not matter if she has been compelled to move out after the discord since the house will still be treated as a shared household, entitling her to live in it once she files a complaint under the Domestic Violence Act. In a recent verdict, the SC extended this right to hold that an aggrieved woman cannot be evicted summarily even by a tribunal under the Senior Citizens Act and that she must be heard when the shared household belongs to her in-laws.
Bail to Arnab Goswami
In November, the Supreme Court protected Republic TV founding editor Arnab Goswami from arrest in connection with a case of abetment to suicide. The charge related to the suicide of an interior designer who was owed money by Goswami’s company. The apex court held that the Bombay High Court – which declined Goswami’s request for interim bail – “abdicated its constitutional duty and function as a protector of liberty” by not conducting a prima facie evaluation of the FIR against Goswami and the other accused in the case. It further underlined that the criminal law should not become a weapon for the selective harassment of citizens.