Indian Judiciary -- The Year That Was -- 1

This year began on a positive note. A Bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan delivered the judgment setting aside the remission granted by the government of Gujarat to the convicts in the Bilkis Bano case.

The case was of great significance not only for the reason that the eleven men had been convicted of rape and murder in the pogrom of 2002 in Gujarat, and compelled to be sent back to prison to serve sentences but also for the reason that it reversed a judgment of two-judges comprising Justice Ajay Rastogi and Justice Vikram Nath by virtue of which they had been granted remission, under the mistaken impression that it was the state of Gujarat which had the jurisdiction to grant permission rather than the state of Maharashtra.

In Maharashtra, there were guidelines in place indicating that in case of sexual offences, remission ought not to be granted unless the convicts have undergone 28 years in prison. Bypassing this requirement, the convicts had approached the state of Gujarat, which, relying on a guideline of 1992, granted remission after 14 years.

The remission had received condemnation from a wide spectrum of society, given the context in which the rape and murder had occurred. The judgment, which came in January this year, was a breath of fresh air and restored not only the dignity and security of Bilkis Bano but also the legitimacy of the Supreme Court.

Soon thereafter, the Supreme Court delivered its judgment in the electoral bonds case. This was no doubt a history-making judgment.

Soon thereafter, the Supreme Court delivered its judgment in the electoral bonds case. This was no doubt a history-making judgment. Some have argued it was too little too late. A five-judge Bench comprising then Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices (now CJI) Sanjiv Khanna, B.R. Gavai, J.B. Pardiwala and Manoj Misra, directed the disclosure of the names of the persons who had purchased the bonds.

When the names were disclosed, it became clear that there was a nexus between some of the persons who had purchased the bonds and the grant of bail to them under the Prevention of Money Laundering Act (PMLA), 2002 and the Prevention of Corruption Act, 1988. This nexus was never probed, nor were the monies ever confiscated from the political party to whom they were given.

In March, there was another significant judgment by a seven-judge Bench comprising then CJI Chandrachud and Justices A.S. Bopanna, M.M. Sundresh, P.S. Narasimha, J.B. Pardiwala, Sanjay Kumar and Manoj Misra on immunity from prosecution for receiving bribes for casting votes or making speeches on the floor of the House.

In 1998, a 3-2 decision by a five-judge Bench had held that members of Parliament and legislative assemblies accepting bribes and voting or asking questions in the House would enjoy immunity under the Constitution.

Then Prime Minister P.V. Narasimha Rao was not prosecuted under the Prevention of Corruption Act in relation to voting in the Parliament on the ground that what happens inside the Parliament could not be the subject matter of prosecution.

This ruling has now been reversed, bringing in a sense of accountability on the question of cash for votes, and is a significant victory for the functioning of parliamentary democracy.

As usual, the issue of life and liberty has always remained of central concern to us at The Leaflet.

Life and liberty

As usual, the issue of life and liberty has always remained of central concern to us at The Leaflet. This year saw the grant of release on bail to the founder of Newsclick Prabir Purkayastha, who was being prosecuted under the PMLA and the Unlawful Activities (Prevention) Act (UAPA), 1967.

The judgment rendered by a Bench comprising Justices B.R. Gavai and Sandeep Mehta is significant because it declared the very arrest of Purkayastha under the UAPA illegal.

There were other significant rulings on the issue of life and liberty. Politicians who were denied bail by trial courts and high courts were granted bail by the Supreme Court.

Manish Sisodia, the former deputy chief minister of Delhi, was granted bail by a Bench comprising Justices Gavai and K.V. Viswanathan. The Bench held that prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial.

The Bench observed that it was high time trial courts and high courts recognise the principle that “bail is the rule and jail is the exception”.

B.R.S. leader K. Kavitha, who was denied bail by the Delhi High Court, was also granted bail by a Bench of Justice Gavai and Justice Viswanathan, with scathing observations that she could not have been denied bail only because she is a highly qualified and well-accomplished person, having made significant contributions to politics and social work.

The Bench affirmed that the law remains the same for the educated and uneducated woman under the PMLA.

The judgment rendered by a Bench comprising Justices B.R. Gavai and Sandeep Mehta is significant because it declared the very arrest of Purkayastha under the UAPA illegal.

There has also been a judgment by a Bench comprising Justice J.B. Pardiwala and Justice Ujjal Bhuyan holding that when a trial gets prolonged, it is not open to the prosecution to oppose the bail of the accused–undertrial on the ground that the charges are very serious.

The Bench also held that bail cannot be denied only on the ground that the charges are very serious though there is no end in sight for the trial to conclude.

In yet another case, a Bench of Justice Abhay S. Oka and Justice Bhuyan held that a bail condition that enables police or another investigation agency to track every movement of the accused released on bail by using any technology amounts to a breach of privacy. This was a huge victory enabling the exercise of the right to privacy by those on bail.

More recently, the Supreme Court has held that the Enforcement Directorate cannot, while doing search and seizure of electronic devices, randomly search all data of the owner.

This Order addresses a long-standing grievance of citizens in that it denies access to all data of a person whose devices have been seized. In the case of Newsclick, more than 200 journalists had their devices seized, which have not been returned to date. 

Umar Khalid and others arrested under the UAPA remain in prison despite the above judgments, once again reminding us that it is the luck of the draw, depending on the Bench to which the case is assigned, which determines whether you are in or out of prison.

The politics of sub-classification of Scheduled Castes and Scheduled Tribes

In August, a seven-judge Bench comprising then CJI Chandrachud and Justices B.R. Gavai, Vikram Nath, Manoj Misra, Bela M. Trivedi, Satish Chandra Sharma and Pankaj Mithal overruled a five-judge Bench decision in E.V. Chinnaiah versus State of Andhra Pradesh, thus allowing sub-categorisation of Scheduled Castes and Scheduled Tribes.

Justice Bela M. Trivedi wrote a dissenting opinion, holding that E.V. Chinnaiah was rightly decided and that the Constitution of India did not permit sub-categorisation of the homogeneous category of Scheduled Castes and Scheduled Tribes.

Political scientists have opined that this judgment will have grave political consequences, fragmenting a homogeneous class and making it possible to create sub-identities that can benefit ruling parties.

Some have expressed the view that the success of the alliance government in Maharashtra can be partly attributed to the sub-categorisation of the Scheduled Caste and Scheduled Tribe communities, making it possible for the Bharatiya Janata Party (BJP) and its allies to lobby at the micro-level for votes.

The Bench also held that bail cannot be denied only on the ground that the charges are very serious though there is no end in sight for the trial to conclude.

Endgame

Towards the end of his tenure, former CJI Chandrachud delivered a series of important judgments, including the case of the minority status of the Aligarh Muslim University (AMU).

The majority led by then CJI Chandrachud overruled a decision of a five-judge Bench in S. Azeez Basha, in which it had been held that the AMU was not a minority institution because it was incorporated by way of a statute.

The majority also laid down indicia to determine the minority character of an institution. It has left the matter to a three-judge Bench to decide whether AMU is a minority institution.

A nine-judge Bench led by then CJI Chandrachud held that not all private property can be deemed a “material resource of the community” under Article 39(b) of the Constitution for acquisition and redistribution by the government.

Change of guard 

In November, Justice Sanjiv Khanna became the 51st Chief Justice of India.

It is far too soon to comment on his performance. However, a Bench consisting of CJI Khanna and Justices P.V. Sanjay Kumar and K.V. Viswanathan passed an interim Order in petitions challenging the Places of Worship (Special Provisions) Act, 1991.

Through the Order, the court prevented the filing of any suits or the conducting of any surveys to ascertain the religious character of a structure, until the Supreme Court had rendered its decision on petitions challenging the validity of the Act.

This has hopefully restored a temporary peace between communities and is a welcome sign of judicial discipline. This may or may not be an indicator of what we can expect from the new CJI in the few months left to him (he retires in May next year).

Meanwhile, we saw the appointment of four judges to the Supreme Court. Justice Prasanna B. Varale added to the strength of Scheduled Caste judges in the Supreme Court.

Justice Shekhar Kumar Yadav shocked us all by holding a VHP meeting inside the High Court of Allahabad, where he himself used hate speech against Muslims, violating his oath of office.

Justice N. Kotiswar Singh became the first judge from Manipur to be appointed to the Supreme Court. Justice Manmohan was appointed by a collegium headed by CJI Sanjiv Khanna.

Shocking display of Hindutva politics in court

Justice Shekhar Kumar Yadav shocked us all by holding a Vishwa Hindu Parishad (VHP) meeting inside the High Court of Allahabad, where he himself used hate speech against Muslims, violating his oath of office.

Complaints and impeachment motions are pending against him, which will be decided in 2025. Meanwhile, The Leaflet published a story quoting former CJI Chandrachud, who had not only alerted the collegium about Justice Yadav’s links to the Rashtriya Swayamsevak Sangh (RSS) but also put on record that Justice Yadav was not professionally fit to be a judge of the High Court.

Notwithstanding this, Justice Yadav was appointed a judge of the High Court of Allahabad and confirmed as a permanent judge.

This is an unfolding story and CJI Khanna will be judged by what he plans to do against Justice Yadav. His options are— no doubt— limited: an in-house inquiry, permission to prosecute, or allowing the impeachment process to take over. Or all of these.

What happens to Justice Yadav will not only determine his fate but also the survival of the judiciary as a secular institution. For now, it is a waiting game.

With this, we wish you all a very Happy New Year and hope that we succeed in restoring some of the lost credibility of the Supreme Court in 2025.