New Delhi: Important matters linked to questions of citizens’ rights have witnessed just one hearing in the Supreme Court and they are still awaiting its final decision.
Three such notable matters are petitions to declare the law criminalising triple talaq as invalid, pleas to set aside the amendment in the anti-terror law — Unlawful Activities (Prevention) Act — that entitles the government to declare an individual a terrorist without hearing the person, and a single petition against modifications diluting the Right to Information (RTI) Act.
Triple talaq petitions
Nine writ petitions have been admitted in the Supreme Court challenging the Centre’s move to promulgate a law to make divorce through triple talaq in the Muslim community a cognisable and non-bailable offence, punishable with three years of imprisonment.
The law was called The Muslim Women (Protection of Rights on Marriage) Act, 2019. The top court’s August 2017 judgment declared the practice of instant triple talaq as unconstitutional. The Centre pitched it as a huge step for empowerment of Muslim women.
The petitioners, however, argued before the top court that criminalising a civil wrong in a marriage would shut all room for compromise between the husband and wife.
They said the provisions impose excessive and disproportionate punishment. There are graver offences under the Indian Penal Code for which lesser punishment is prescribed, the court was told.
Notices on the first four petitions were issued to the Centre on 23 August 2019. Subsequently, fresh petitions were filed on which the Centre’s response was sought on 13 September, 20 September, 14 October and 13 November 2019.
This batch of petitions was listed twice — 30 September 2019 and 25 October 2019 — before the registrar for a compliance report of the court order. It was noted that nobody appeared on behalf of the Centre, though notice was served to it in all the matters.
In 2020, two more petitions reached the top court on which the Centre was told to file a response on 6 March and 6 July.
Advocate M.R. Shamshad, who represents the All India Muslim Personal Law Board (AIMPLB), rued the absence of uniform rule in the Supreme Court to fix priority for disposal of cases relating to personal liberty.
“These cases (on triple talaq) are pending since August 2019, after the Parliament cleared the law. Priority and posteriority in listing and disposal of various matters have always been an issue. The top court needs to introduce a transparent mechanism to list, hear and decide cases,” he said.
Almost a month after the Parliament approved the amended Section 35 of the anti-terror law, UAPA 2019, two petitions filed in September 2019 in the Supreme Court were heard just once that month — on 6 September.
A civil rights NGO, Association for Protection of Civil Rights, that has aided individuals accused of terror charges, and activist Sajal Awasthi have sought to declare the amended UAPA unconstitutional on the ground that it curtails a citizen’s right to dissent as it affords no opportunity to a person declared a “terrorist” to justify his case.
Such an Act violates the basic tenets of the Constitution and conferring of such discretionary, unfettered and unbound powers upon the central government is antithesis to Article 14 — right to equality — the petitioners have deposed in their pleadings.
A bench led by then CJI Ranjan Gogoi had issued notice on the first date of the hearing, observing that the court will examine the matter. However, the case is yet to witness another hearing in the top court.
Fauzia Shakil, the lawyer representing the two petitioners, underlining the importance of the pleas, told ThePrint: “Constitutionality of the UAPA amendment giving power to the Centre to designate individuals as terrorist without giving them a notice or hearing, raises important issues of violation of fundamental rights.”
Shakil pointed out that according to the SC order, notices were served upon the Centre, however, no reply has been submitted to the court on its behalf.
“Despite notices having been issued in September of 2019, the Centre has not filed any reply and the matter has not been taken up for hearing. It’s been more than a year and the government has gone ahead and exercised powers under the amended UAPA and notified many individuals as terrorists, when the issue of its constitutionality is still pending before the SC,” Shakil said.
She blamed the government for “intentionally dragging its feet by not filing its reply promptly,” adding that the “Centre is taking full advantage of the top court’s lack of interest in deciding the issue early”.
A petition by Congress MP Jairam Ramesh to declare the modification in the RTI Act 2005, as ultra vires should have ideally been heard four weeks after the top court issued notices on 31 January 2020.
While seeking government response to the case, a bench led by Justice D.Y. Chandrachud had on that day noted the order will be returnable in four weeks. However, more than 11 months later, the case has failed to make it to the worklist of the top court.
The revised transparency law undermines the objective of the legislation because it allows the Union government to fix tenures of the information commissioners and determine their salaries, leading to complete “destruction of their independence”, contended Ramesh’s petition.
Passed in July 2019, the new law envisages the tenure of information commissioner “solely subject to the will of central government and their salaries at its sole pleasure”. This denudes the authorities under the RTI Act of “their independence and impartiality”.
The petition claimed the amendment allows “unbridled and unchannelized discretionary power to the central government that jeopardised independence of information commissioners”.
Talking to ThePrint, Ramesh’s lawyer Sunil Fernandes said the Congress MP’s petition called for an authoritative pronouncement by the top court and he can only “hope” it gets listed at the earliest.
“It raises some important questions of law having far reaching public importance. It is universally acknowledged that the RTI Act has gone a long way in bringing about transparency in administration and holding public officials accountable. However, the recent amendments have virtually emasculated the efficacy,” Fernandes said.
Despite months since notice being issued, the central government has chosen not to file its reply, Fernandes said, adding that it indicates “lack of seriousness on the Centre’s part”.