Aadhaar, 377, Babri: CJI Misra has to deliver 10 landmark judgments in 18 working days

A file image of Justice Dipak Misra | PTI

Misra is just a month away from the end of his controversial tenure, but in that he could well alter India’s future.

New Delhi: Chief Justice of India Dipak Misra will retire on 2 October, bringing an end to one of the most tumultuous tenures in recent history. Misra’s term in office was marked by high-profile cases, controversies, criticisms and allegations of corruption. For most of his tenure, which began in August 2017, the judiciary was mired in controversy after the January press conference by the next four senior-most judges.

However, all that is in the past. Misra now has 18 working days (counting from 3 September onwards) left, in which he has to deliver at least 10 landmark judgments, including settling the Aadhaar issue, the decriminalisation of homosexuality, and the politically-charged Ram Janmabhoomi/Babri Masjid case.

The Aadhaar judgment

More than five years after the first plea was filed, a five-judge Constitution bench reserved its order on the constitutional validity of Aadhaar — the unique biometric identification scheme that has become a pet project for Prime Minister Narendra Modi’s government.

Section 377

After hearing arguments for a week, the Supreme Court on 17 July reserved its order on petitions seeking to decriminalise homosexuality. A five-judge bench heard a batch of appeals that challenged the constitutional validity of Section 377 — the law that criminalises gay sex. However, the pending review plea in the Naz Foundation case — where the apex court had overturned the Delhi High Court judgment that decriminalised homosexuality, was not up for discussion.

Emboldened by the historic apex court judgment that declared privacy as a fundamental right in 2017, celebrities and prominent personalities filed a batch of pleas seeking to assert their right and choice of sexual orientation.

The apex court had observed that the idea behind fundamental rights is to give courts the power to strike down laws that a majoritarian government, swung by votes, will not touch.

“The moment we are convinced there is a violation of fundamental rights, we will strike it down and not leave it to legislature,” the Bench had said.

Is the mosque integral to Islam?

The apex court will have to answer this pertinent question before it starts hearing the Ram Janmabhoomi-Babri Masjid title dispute. On 20 July, a three-judge special bench reserved its verdict on whether the observations made in the 1994 M. Ismail Farooqui judgment that a mosque is not integral to Islam needs to be reconsidered by a larger bench.

At first, the bench led by CJI Misra was supposed to decide on the title dispute case that would direct the course of electoral campaign for the upcoming Lok Sabha elections. However, this decision has now fallen on the shoulders of Misra’s successor.

Entry of women in Sabarimala temple

A five-judge Constitution bench reserved its order on the issue of women of a certain age entering the famed Sabarimala temple days after it observed that this ban was based on the “patriarchal” belief that a man’s dominant status in the society makes him capable of austerity, while a woman — who is simply the “chattel of a man” — is unable to remain pure for the 41 days of penance required before the pilgrimage.

Live streaming of court proceedings

The apex court indicated that it was open to the idea of live streaming court proceedings on a pilot basis. However, a three-judge bench reserved its order on a plea by senior advocate Indira Jaising in August. The Centre supported Jaising’s plea but expressed its reservations, saying there are certain cases that are sensitive in nature and must not be streamed live.

“Let us first start with it. We are just on a pilot project. We are not ruling out anything and will improve with time,” Justice D.Y. Chandrachud had said, expressing apprehension on the likelihood of misuse of the recorded proceedings.

Equality in penal laws on adultery

On 8 August, the Supreme Court reserved its order on the constitutional validity of Section 497 that penalised a husband for committing adultery. In January, the top court had observed that the law needed a relook and had referred the issue to a Constitution bench.

“The provision seems quite archaic, especially when there is a societal progress. Thus analysed, we think it appropriate that the earlier judgments require to be reconsidered with regard to social progress, shift in perception, gender equality and gender sensitivity…”

Although the government tried to defend the retention of the law to preserve the “sanctity of marriage”, the top court responded by saying: “Where is the sanctity of marriage when the husband can consent…We are not questioning the legislature’s competence to make laws but where is the ‘collective good’ in Section 497 of IPC?”

Disqualification of MPs/MLAs if they face criminal charges

A five-judge bench reserved its order on 29 August on a plea that sought the disqualification of lawmakers from contesting elections if they were facing criminal charges, or only after they have been convicted for the crime.

The apex court had asked Attorney General K.K. Venugopal if the Election Commission could be empowered to withdraw the reserved symbol allotted to a recognised political party if they fielded persons with criminal charges.

To this, the AG responded by suggesting that the court could not enter the arena of Parliament, which is forbidden for the judiciary. It is the right of the political parties to field candidates on their allotted symbol, and this right cannot be denied by the court, he had said.

Reservation in promotions   

On 30 August, the top court reserved its plea on a batch of petitions that sought a review of its M. Nagaraj judgment that put restrictions on reservations in promotions.

Nagaraj, a retired Bengaluru-based PWD engineer, who won the fight against reservation in promotion, said it would set a dangerous precedent if the Supreme Court agrees to reconsider the judgment after more than a decade.

In November 2017, the apex court referred the plea seeking a reconsideration of the Nagaraj judgment before a larger bench. According to the judgment, states did not have to provide reservation in promotions to the Schedule Castes and Schedule Tribes (SC/ST) category in government jobs. However, states could make such provisions after they collected quantifiable data that indicated backwardness of the community as well as proved its inadequate representation in the public sector.

Ban on lawmakers from practicing as advocates

On 9 July, the top court reserved its verdict on a plea filed by advocate Ashwini Kumar Upadhyay, who sought a ban on legislators from practising as advocates. The top court noted the Centre’s submission that MPs or MLAs are elected representatives and not full-time government employees.

Revision of the anti-dowry law

Dowry has a “chilling effect” on marriage, CJI Misra had observed while reserving the verdict on a plea that sought the review of the July 2017 order which diluted the provisions of the anti-dowry law by preventing immediate arrests.

A batch of petitions had challenged the top court judgment passed by a division bench of Justices A.K. Goel and U.U. Lalit.