2018 was the year of the biggest judicial turmoil in the Supreme Court — with more misses than hits

[dropcap]T[/dropcap]HE YEAR 2018 will go down in history as one of the most controversial and path-breaking years for the Indian Judiciary, especially that of the Supreme Court of India. While the year witnessed the landmark judgments in the form of decriminalisation of adult homosexual relations, and adultery, as well as the reiteration of the right to choice in Hadiya's case, it also saw the complete abdication of the judicial role in many cases, including Judge Loya, Bhima Koregaon arrests, and finally the Rafale defence deal. Most importantly, 2018 would be remembered as the year when the judicial independence was under most threat.

The iconic press conference by the four senior-most judges led by Justice J. Chelameswar on January 12, 2018 set the ball rolling, when he told the media that 'democracy was in peril'. Though the exact reasons of the four senior most judges speaking out against the then Chief Justice Dipak Mishra was never made public, it was clear that tensions at the bench were simmering for long, and erupted finally, owing to the alleged biased allocation of cases to certain 'selected benches'. For the first time, the insular apex court judges were forced to go to the media and public, in order to force the Chief Justice Mishra to listen to their concerns.

Whether the Press Conference achieved its desired results or not, one thing was clear to all that the Indian Judiciary was undergoing one of its biggest crisis, and that too in an era of a majoritarian government, with no regard for either parliamentary procedure or judicial propriety. In fact, executive interference with judicial appointments has been one of the highest this year, with the Modi Government sitting on Justice K.M. Joseph's elevation to the Supreme Court for months, thereby delaying with his seniority, and playing havoc with the collegium system of judicial appointments.

Chief Justice Dipak Mishra was in office till 2nd October, 2018. During these 9 months, he was known more for the judicial discontent than the content of his judgments. At the same time, he was part of the Constitution Bench judgments that produced certain fantastic jurisprudence, mostly due to the efforts of Justice D.Y. Chandrachud and Justice Rohinton Nariman.

Hits

Some of the path-breaking judgments are:

• Shafin Jahan vs. Ashokan [(2018) SCC OnLine SC 343]: The Supreme Court emphatically upheld the right of a woman (here a woman who had converted to Islam and married a Muslim man) to choose her partner as well as her religion, as part of her fundamental right to autonomy and liberty guaranteed under Article 21 of the Constitution.

• Guidelines against mob lynching: Detailed directions were given to the Central Government and the State Governments to prevent mob lynching as well as for the payment of compensation to the victims.

• Navtej Johar & Ors. vs. Union of India [(2018) 10 SCC 1]: Overruling its horrific judgment of 2013 in reinstating Section 377, IPC, the Supreme Court struck down Section 377 as unconstitutional for criminalising sexual relations between consenting adults, including same sex relations. It upheld the rights of lesbian, gay, bisexual and transgender persons to form intimate relations, to live with dignity and freedom and to be who they are, without fear and discrimination.

• Joseph Shine v. Union of India: The Supreme Court struck down Section 497, IPC that criminalised adultery to the extent that if a man had sexual relation with a married woman, then the husband could prosecute the adulterer, unless the latter had consented/colluded with the same. But a woman could not prosecute, if her husband was having sexual relations outside the marriage. This archaic law was struck down as discriminatory, and arbitrary and violative of a woman's dignity and agency.

• Entry of women into Sabarimala temple: Ending a longstanding feud, the Supreme Court in a majority decision held that no woman could be stopped from entering Sabarimala temple, and any rule that bars women from 10 to 50 years (i.e., menstruating women) is unconstitutional. This judgment led to lots of protests, especially fueled by the rightwing political parties, who are using the judgment for their political motives.

Though on different issues, these decisions are bound by an underlying thread of an expansive interpretation of the fundamental rights jurisprudence, entrenching the principle of constitutional morality, and an emphasis on the transformative potential of the Constitution.

Misses

Despite the landmark decisions in the areas of gender and sexuality, it seemed that when it came to political issues, the Apex Court failed to exercise its robust judicial scrutiny and accepted the Government's contentions at their face value.

• Dismissal of plea to do independent investigation into Judge Loya's case: In one of the most controversial decisions of the year, the Supreme Court dismissed a plea to conduct an independent investigation into the mysterious death of Judge Loya in 2014, when he was hearing the Sohrabuddin Sheikh's fake encounter case, wherein the prime accused was Amit Shah. In a highly problematic decision, the Court did not ask the State of Maharashtra to file a counter affidavit and fully accepted the Government's argument that a fair enquiry had been done by the police and nothing suspicious was found about the death and the Judge died of 'natural causes'.

• Upholding the validity of the Aadhaar Act: The Constitution Bench headed by Chief Justice Mishra in a majority judgment upheld the highly controversial Aadhaar Act, though it struck down its mandatory linkage with private operators like Banks and mobile companies. Without dealing with all the objections raised by the Petitioners, including the mass exclusions faced by the poorest populations from socio-economic benefits, owing to compulsory Aadhaar requirement, the Court went ahead and accepted the government's reason of preventing pilferage of ration and duplication. In his dissent, Justice Chandrachud struck down the Aadhaar Act only for the reason that it was passed as a money bill, in complete contravention of the Constitution.

• Rafale petition: This was one of the first crucial tests of Chief Justice Gogoi, who made a mess of the whole case. While the Court rejected the petitions seeking an independent investigation into the procurement of Rafale fighter jets by the Government, amidst allegations of corruption, and bypassing the procurement procedures, on the ground of jurisdiction, in the same breadth, the Court chose to deal with certain contentions on merits, without having all the facts beforehand. In fact, in a repeat of Judge Loya's case, the Court did not issue notice to the Government, but allowed the Government to submit details in a 'sealed cover', with no opportunity given to the Petitioners to counter the same. In an embarrassing blunder, the judgment stated that the pricing of the Rafale deal has been shared with the CAG, who has prepared a report, which has been given to the Parliamentary Accounts Committee and a part of it shared with the Parliament too, when no such CAG report was shared with the PAC.

• Bhima-Koregaon arrests: The majority judgment in the case didn't strike down the blatantly unlawful arrests of 10 left-leaning lawyers and activists under the draconian UAPA, or the Unlawful Activities Prevention Act, even though the minority judgment — authored by Justice D Y Chandrachud — in no uncertain terms tore into the Government's and the Pune Police's reasons for the same.

All these judgments showed the inconsistency with which the Supreme Court chooses to interfere in the policy decisions or to monitor investigations, especially pertaining to the ruling regime.

As the year comes to an end, it is hoped that the judiciary will be more consistent in its decision-making, decry the use of 'sealed cover' in adjudication, and stand up to the Executive bullying, whether in judicial appointments or in administration. (IPA)