Judicial governance of India’s 1.32 billion population entrusted to the hands of so few is an unprecedented challenge. The Supreme Court as the pater familias of the judicial family has contributed inventively and phenomenally while firmly entrenching the rule of law. The year 2017 was significant for the Supreme Court as it underwent three different changes in regimes. Chief Justice T. S. Thakur who demitted office on 3 January 2017 was succeeded by Chief Justice J. S. Khehar with a small tenure of eight months and then Chief Justice Dipak Mishra took the oath of office on 28th August 2017. The year saw some progressive verdicts, however, there had been some incidents which had cast doubt on the integrity of the judicial institution.
Verdict Restoring Public Trust
In a path-breaking judgment in the case Shayara Bano v. Union of India), the Supreme Court, by a majority of 3:2, set aside the archaic practice of ‘talaq-e-biddat’ – triple talaq. The court held that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save the marriage.
This form of Talaq must, therefore, be held to be violative of the fundamental right contained in Article 14 of the Constitution of India. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well. The dissenting judges, however, regarded triple talaq as an inalienable part of Muslim personal law in India and opined that the practice does not contravene Articles 14, 15 and 21 of the Constitution.
A nine-Judge Bench of the Supreme Court unanimously upheld the right to privacy as a fundamental right. This historic verdict on the case of Justice K.S. Puttaswamy (Retd.) v. Union of India held privacy to be the constitutional core of human dignity which safeguards individual autonomy and recognises the ability of the individual to control vital aspects of one's life. Personal choices that govern our way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture.
Verdicts with Political Ramifications
A seven-judge Constitutional Bench on the case of Abhiram Singh v. C. D. Commachen by a 4:3 majority) held that seeking votes in the name of religion, caste or community amounted to corrupt practice and election of a candidate who indulged in it can be set aside. The Bench was interpreting Section 123(3) of the Representation of Peoples Act with reference to a question “Will a religious leader’s appeal to his followers to vote for a particular political party amount to electoral malpractice”. However, the Bench refused to revisit the Hindutva verdict (1995) which held that Hinduism is a way of life and not religion. The dissenting judges however held that such an interference by the court, prohibiting candidates from articulating issues affecting voters reduced democracy to an abstraction.
A verdict with massive political ramifications came when Supreme Court (State (through) CBI v. Shri Kalyan Singh & Others) restored criminal conspiracy charges against senior BJP leaders’ L K Advani, Uma Bharti, Murli Manohar Joshi and 13 other in Babri Masjid demolition case. The court allowed the appeal filed by the CBI and held that additional charges against Advani, Joshi and others be framed within four weeks.
Invoking its extraordinary constitutional powers under Article 142 of the Constitution, the Bench also transferred the pending separate trial in a Rae Bareilly Magistrate Court and clubbed it with criminal proceedings in the Lucknow CBI Court. The Bench directed the trial court to hold a day-to-day trial without any adjournment and pronounce judgment within two years.
While convicting V. K. Sasikala, Ilavarasi and Sudhakaran in disproportionate assets case, the Supreme Court tried to reinstate the confidence of people in the judiciary but came under unexpected indictments. It faced severe criticism when the Chief Justice erroneously intervened in a corruption case which involved a retired judge of the Orissa High Court in order to constitute a bench of his choice to hear the case. It turned out to be worst when a lawyer who was arguing the petition was escorted from the court, flanked by security, after verbally grumbling with the Chief Justice. The episode not only diluted the accomplishments of this year but also substantiated the dubious attitude of Supreme Court in dealing with corruption in the higher judiciary.
(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL).