CJI Bobde's One Year At Office: A Look At Pending Cases Involving Serious Constitutional Questions

The Supreme Court has come under considerable criticism for not showing a sense of urgency in deciding several cases of vital national importance such as the petitions challenging the revocation of the special status of Jammu and Kashmir, the constitutionality of the Citizenship Amendment Act and the validity of electoral bonds.

The Citizenship Amendment Act, passed by the Parliament in December 2019, was the first major issue which the incumbent CJI had to deal with soon after assuming office

The Citizenship Amendment Act and the announcements about the National Register of Citizens triggered off mass civilian protest movements across the country, which was sought to be brutally suppressed by the State through the invocation of Section 144 orders, police crackdowns, internet shutdowns etc.

The changes to the core concepts of Indian citizenship and the uncertainties about the National Register of Citizens and the anxieties about its apparent precursor the National Population Register sent the country into a state of turmoil. Over 140 writ petitions were filed in the Supreme Court by different parties across the nation challenging the CAA-NPR-NRC.

While many were looking up to the Supreme Court for an expeditious and authoritative pronouncement on the issues relating to citizenship, CJI Bobde chose to give priority to the questions of essential religious practices raised in the Sabarimala review.

The CJI formed a nine-judge bench to frame and decide the several questions relating to the ambit of religious freedom and the extent of judicial review over them in the context of Sabarimala review order. When urgent listing of the CAA petitions was sought, the CJI said 'after Sabarimala reference'.

In March, with the onset of the COVID-19 pandemic, the regular functioning of the Supreme Court was thrown out of gear. Hearings switched to the virtual mode via video conferencing. The Court functioned for a while in a limited mode, listing only urgent cases.

Gradually, the court and the legal community adapted to the virtual functioning mode, overcoming the inevitable initial hiccups. The Supreme Court itself has shown that hearings of major cases involving complex issues can be held smoothly via video conferencing.

For example, the judgments in cases related to the legality of the MHA's wages order, Section 6 of Hindu Succession Act, legality of Gujarat orders under the Factories Act, UGC's exam notification and even Prashant Bhushan's contempt case were delivered after hearing the parties entirely via video conferencing.

Even the 5-judge bench which delivered judgment in the case relating to the in-service quota for PG medical courses held the hearing completely through VC. Recently, the Karnataka High Court also showed by deciding the Franklin Templeton cases that matters involving complex issues, multiple petitioners and voluminous records can be decided through VC hearing

So, the court has demonstrated that physical functioning is not necessary for hearing cases involving serious constitutional questions.

In this backdrop, let us have a look at cases of vital national importance, which are remaining unattended by the Court.

Revocation of the special status of Jammu and Kashmir

The Presidential Orders leading to the effective scrapping of the special status of Jammu and Kashmir – issued when J&K was under President's rule and when most political leaders from the state were under detention – raise serious constitutional questions relating to the interpretation of Article 370 and the nature of the relationship between J&K and the Union of India based on the instrument of accession. Multiple petitions have been filed in the Supreme Court questioning the constitutionality of the revocation of J&K's special status and also the downgrading and bifurcation of the State into Union Territories. In September 2019, a 5-judge bench headed by Justice N V Ramana was formed to hear the cases. The bench started hearing in December 2019 on the preliminary point whether the cases need to be referred to a 7-judge bench in view of the seeming conflict between the judgments in Prem Nath Kaul v. The State of Jammu and Kashmir [1959 AIR 749] and Sampat Prakash v. State of Jammu and Kashmir [1970 AIR 1118]

On March 2, 2020, the 5-judge bench turned down the plea for reference to a larger bench holding that there was no conflict between the decisions.

The matter has not been posted since then.

Electoral Bonds

There is mounting criticism from several quarters regarding the refusal of the Supreme Court to give decisions on the petitions, which allege that the anonymous electoral bonds have rendered huge illicit benefits to the ruling party through channelization of unaccounted money.

The petitions were filed in 2017 challenging the provisions of the Finance Act 2017 which paved the way for anonymous electoral bonds. The Finance Act 2017 introduced amendments in the Reserve Bank of India Act, Companies Act, Income Tax Act, Representation of Peoples Act, and Foreign Contributions Regulations Act to make way for electoral bonds.

However, the case became alive only by March 2019, by which time most of the electoral bonds have been purchased.

Notably, the Election Commission of India has already filed a counter-affidavit in the case expressing its concerns about the anonymous nature of bonds. The ECI has described this a "retrograde step as far as transparency of donations is concerned" and called for its withdrawal.

The Centre claims that the schemes will bring in more transparency in political funding. The anonymity of the scheme was intended to protect the privacy of the donor, stated the centre.

After CJI Bobde assumed charge, the petitioners filed an application for early hearing of the case, in the light of certain media reports that the electoral bonds were hurried by the government ignoring grave concerns raised by the Reserve Bank of India and the ECI.

On January 2020, when the cases were finally listed(after April 2019), a bench headed by CJI Bobde adjourned them for two weeks.

The cases have not been posted since then. Though the petitioners recently filed a fresh application for urgent posting in the wake of notification of the electoral bonds for the Bihar elections, the cases await listing.

Challenge to RTI Amendment

In January 2020, the Supreme Court had issued notice in the petition filed by Congress MP Jairam Ramesh challenging the constitutional validity of the controversial Right to Information(Amendment) Act 2019. The amendment took awaythe fixed tenure of the Information Commissioners, and made their pay and allowances subject to the executive rules to be framed by the Central Government. Before the amendment, the RTI Act had given Information Commissioners a fixed term and also the status and privileges equal to Election Commissioner in order to ensure that they function independently and autonomously. Activists and opposition parties severely criticized the RTI Amendment as a move to weaken the RTI regime by removing the protections available to Information Commissioners.

The petition has not been listed since notice was issued by the top court on it on January 31.

Legality of passing Aadhaar Act as money bill

On November 13, 2019, a Constitution Bench of the Supreme Court doubted the correctness of an earlier Constitution Bench judgment which held that passing the Aadhaar Act 2016 as a money bill was valid.

The petitioners challenging the Aadhaar Act 2016 had argued that the law was passed as a 'money bill' to circumvent the Rajya Sabha, where the ruling coalition was in the minority.

The dissenting judgment of Justice D Y Chandrachud in the Aadhaar case had termed the practice of abusing money bill provisions to evade the discussions on Rajya Sabha a 'fraud on the constitution'.

In Rojer Mathew v South Indian Bank, a 5-judge bench of the SC doubted the correctness of the interpretation of the majority judgment in K S Puttaswamy v Union of India which had held that Aadhaar Bill was in substance a Money Bill within the meaning of Article 110(1) of the Constitution.

The Rojer Mathew decision noted that the majority dictum in Aadhaar judgment did not substantially discuss the effect of the word 'only' in Article 110(1) and did not examine the repercussions of a finding when some of the provisions of an enactment passed as a "Money Bill" do not conform to Article 110(1)(a) to (g).

Observing so, the bench in Rojer Mathew referred the issue to a larger bench. A decision in this case can have an impact on the electoral bonds issue as well, since the Finance Act 2017(which laid the legislative foundation for the electoral bonds scheme) was also passed as a money bill.

Though the case is of substantial constitutional importance, touching upon the sanctity of legislative procedures and the role of the upper-house in law-making, it has not received any attention during the term of the incumbent CJI.

Questions related to reservation

A bunch of petitions is pending in the Supreme Court challenging the Constitution (103^rd) Amendment Act passed in January 2019, which introduced the reservation for Economically Weaker Sections(EWS) in government jobs and educational seats to an extent of 10%.

The EWS quota is meant to be over and above the 50% ceiling limit fixed for the reservations for SC/STs and OBCs. The petitioners argue that a fluctuating condition like economic status cannot be made the criteria for reservation, as the intent of the affirmative action is to eradicate backwardness caused due to social and community status. Making room for providing quota up to 10% to economically weaker sections in addition to the existing reservations breach the 50% cap set by Supreme Court in the Indira Sawhney case, the petitioners further point out.

On August 5 this year – a year after reserving orders – a 3 judge bench headed by CJI Bobde referred to larger bench questions relating to EWS quota. Orders were reserved on the reference in July 2019.

In a related development, another bench referred to larger bench questions arising out of the legality of Maratha quota case.

Delhi-LG v GNCT

In February 2019, a division bench of the Supreme Court delivered a split verdict on who controls the administrative services in Delhi – the Lieutenant General appointed by the Central Government or the elected Government of the National Capital Territory of Delhi.

Justice Sikri, the presiding judge, held that transfers and posting of officers of and above the rank of Joint Secretary are under the powers of Lieutenant General of Delhi; other officers are under the control of Delhi Government. On the other hand, Justice Ashok Bhushan dissented to hold that "services" were totally outside the purview of the Delhi Government.

In view of the split verdict, the matter was referred to larger bench.

The reference is being dealt with by a bench headed by CJI Bobde. The case was last listed on February 18, 2020.

Challenge to criminalization of triple talaq

In August 2019, the Supreme Court issued notice on a batch of petitions challenging the constitutional validity of Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalizes the pronouncement of 'triple talq'.

The petitioners argue that penalizing 'triple talq', when the practice has already been declared to be void by the Supreme Court, is arbitrary and unreasonable . The petitioners also argue that the provision is discriminatory on religious grounds, as the desertion of wife by a man belonging to another religion is not penalized. According to the petitioners, the law is an attempt to terrorize and target the Muslim minority community.

The case has not witnessed any action in court after the issuance of notice.

Challenge to UAPA amendment

In September 2019, the Supreme Court had issued notice on a group of petitions challenging the UAPA Amendment Act 2019, which empowers the Central Government to notify an individual as a "terrorist". The petitioners argue that the amendment conferring "unfettered and unbound discretionary powers" on the central government to notify an individual as a terrorist was arbitrary and violative of Article 14.

Farmers Acts

The challenge against the recently enacted three farmers laws, against which several farmers groups are protesting across the country, have reached the Supreme Court.

Last month, a bench headed by CJI Bobde issued notice on petitions challenging the Farmers Produce Trade and Commerce (Agriculture and Promotion) Act, 2020, Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act and the Essential Commodities (Amendment) Act 2020.

It is unrealistic to expect final adjudication on these cases during the five months period left in the tenure of CJI Bobde (who retires on April 24, 2021). Nevertheless, it is one's fervent hope that the CJI will take measures to prioritize the hearings in at least some of these matters, having regard to their substantial public importance.