New Delhi: The Supreme Court is in the news over criticism that the top judicial body has been selectively delivering justice.
In episode 622 of ‘CutTheClutter‘, ThePrint’s Editor-in-Chief Shekhar Gupta pointed out the difference in outcomes of the cases of Republic TV Editor-in-Chief Arnab Goswami’s hearing and that of Kerala-based journalist Siddique Kappan, who was detained by the Uttar Pradesh government after the alleged rape and murder in Hathras.
Gupta said the most important article on this criticism has been from India’s foremost public intellectual Pratap Bhanu Mehta, who said the apex court is functioning like a ‘Weimar judiciary’. The Weimar Republic was the German government in power before Adolf Hitler — the period between the end of World War I and the rise of Nazi Germany.
Explaining further, Gupta said: “There are two refences here as Pratap Bhanu Mehta explains. First is that the judiciary is doing the jobs of those with executive powers. And second, there is an anti-minority tinge in these laws.”
Gupta went on to list 10 cases to exemplify the point. These are cases that the court should have heard in the last few years, he added.
The first case is of those accused in the northeast Delhi riots that broke out this February. Many of the accused waited a long time for bail while many others are still locked up under the Unlawful Activities Prevention Act (UAPA).
“They get bail in one case, they get locked up in another case,” Gupta said, adding that this leads to a mindset developing, that “these are anti-national people or they are anti-state people or they are a nuisance”.
The second and one of the most important cases is that of the electoral bonds. In the 2017 Budget, then finance minister, late Arun Jaitley, introduced electoral bonds by bringing amendments to the Reserve Bank of India Act, Companies Act, Income Tax Act, Representation of People’s Act and Foreign Contributions Regulations Act.
The case took one-and-half years to get listed for initial discussion. Then, in March 2019, a bench-led by Chief Justice Ranjan Gogoi finally started the hearings. The bench refused to stay the bill and ordered that all parties submit details of electoral bonds received to the Election Commission in a sealed cover.
These envelopes have still not been opened, said Gupta. A non-governmental organisation, the Association for Democratic Reforms, last month sought an urgent listing of the case, but nothing has happened yet.
The third case is the scrapping of Article 370 in the erstwhile state of Jammu and Kashmir. As soon as it was scrapped, several petitions were filed, questioning the constitutionality of the revocation of J&K’s special status.
In September 2019, a five-judge bench headed by Justice N.V. Ramana started hearing the pleas. In December 2019, they held a hearing where the preliminary point about these petitions was discussed — whether these petitions could be handled by a five-judge bench, or is they deserved a seven-judge constitution bench.
In March 2020, the same bench then decided that there was no need for it to go to a larger bench. The matter hasn’t been heard since.
Also read: SC Bar Association head says instant listing of Arnab Goswami’s bail plea ‘deeply disturbing’
Cases on CAA, UAPA, RTI
The fourth case listed is that of the Citizenship (Amendment) Act 2019, which amended the Citizenship Act, 1955. It was notified on 10 January 2020.
The Act was challenged immediately by the Indian Union Muslim League (IUML) through a petition under Article 32 of the Constitution. About 140 other litigants followed suit — all challenging the constitutionality of the amendments.
The first hearing was held on 18 December 2019, after which the hearing was postponed till 22 January 2020. In January, the court refused to stay the Act, stating that it “wants to hear the Centre’s response to pleas challenging the law.”
The last hearing was on 5 March when senior advocate Kapil Sibal sought an urgent listing of the matter and the court responded by asking him to list it after the Holi break.
The fifth case Gupta cited is of the petitions challenging the Centre’s amendments to the Unlawful Activities Prevention Act (UAPA). In December 2019, the Centre made amendments that gave powers to the government to designate any person, apart from organisations, as a terrorist.
Several petitioners claim this amendment gives “unfettered and unbound discretionary powers” to the central government and were in violation of Article 14, which provides all citizens equality before the law. This matter has not been listed yet.
The sixth case is about the challenge to the amendments made to the Right to Information Act, 2019.
“These amendments were about taking away the fixed tenure of information commissioners because fixed tenures gave them a certain amount of security, so they could act more impartially, and courageously,” Gupta explained. As with the other cases, this hasn’t moved beyond this point so far.
Also read: Arnab Goswami’s swift bail should be the rule for undertrials. Not the exception
Cases on triple talaq, reservation for EWS, Aadhaar
The seventh case Gupta cited is the criminalisation of triple talaq.
The Government of India passed an amendment, creating a new law called the ‘Muslim Women (Protection of Rights on Marriage) Act’, in 2019. In August that year, a notice was issued in response to those challenging the law on constitutional grounds. The case has not been heard yet.
The eighth case is over the issue of who controls the administrative services in Delhi.
In this case, a division bench of the Supreme Court delivered a split verdict in February 2019.
Justice Sikri, the presiding judge, said it is the lieutenant governor who has the powers while Justice Ashok Bhushan said these powers should be under the purview of the Delhi government.
The case was referred to a larger bench, and was last listed on 18 February 2020.
The ninth case is on the reservation for economically weaker sections (EWS), irrespective of their caste. This was brought in by the Modi government as the 103 Amendment Act on 9 January 2019.
It got the President’s assent on 12 January 2019. With this Act, the government has the power to decide who is poor and thus be given the benefit of reservation in admissions to public institutions and government jobs.
About 20 petitions were filed saying that this was violative of the basic structure of the Constitution. A three-judge bench then discussed whether this should be handed over to a larger bench. In August 2020, they decided it should go to a larger bench, but nothing has happened since.
The tenth and the final case is that of the passing of the Aadhaar Act as a money bill.
A five-judge bench had cleared the passing of the Aadhaar Act as a money bill, but in November 2019, another five-judge bench expressed doubts over this decision. The case was then referred to a larger bench and the matter not been listed since.
Watch the full CTC here:
Also read: You can investigate but cannot harass, SC tells Maharashtra on FIRs against Arnab
Is there anydifference SC in thatemergency period and present set up of SC? It is unfortunate that history repeating with more bad behaviour of our judicoary. Justice Shah said when judges are asked to toe the line of power that in, the judges went to the extent of Sastang PraNanam.
Fine column in IE by Shri Navroze Seervai today, following the one by Shri P B Mehta. The disquiet felt by ordinary citizens who may not be familiar with the differences between Articles 32 and 226 is bubbling up. The wise men and few women of the honourable apex court may be pleased to accept that this most respected / powerful public institution in the country is going through a period of exceptional stress. Something which recourse to the power to punish for contempt will not be able to exclude from widening circles of public discussion. Restrained, sober in the mainstream media, a little irreverent on social media, as happens in a genuine democracy. Retired Judges of the SC / HC are also speaking up with eloquence and passion.