SC reopens Tomorrow: A list of what is in store

Supreme Court will reopen Tomorrow after a 45 day summer break to a packed schedule. Following are the main issues of public interest coming up in the immediate future:

VERDICT IN ARUNACHAL CASE: Supreme Courtis soon expected to deliver its verdict on an appeal against the Gauhati High Court order that upheld the discretionary powers of Governor J.P. Rajkhowa to summon or advance a sitting of the Arunachal Pradesh assembly. Former state assembly speaker Nabam Rebia had moved the apex court after the Itanagar bench of the high court decided to uphold the actions of the governor. The governor, on 9 December, advanced the date of the assembly session by a month to 16 December and had listed the removal of the speaker for the day. A five-judge constitution bench comprising Justices J.S. Khehar, Dipak Misra, Madan B. Lokur, P.C. Ghose and N.V. Ramana has heard arguments on the contours of the power and discretion of the governor under the constitution for over a month before reserving its judgment on February 22. The petition of the Congress challenging the centre’s imposition of the President’s rule and formation of a new government will be taken up by the top court after it decides on the governor’s role.

VERDICT IN JAYALALITHAA DA CASE: The Bench comprising of Justices P.C. Ghose and Amitava Roy of the Supreme Court had on June 7 reserved its Judgment in Appeals filed against Tamil Nadu Chief Minister Jayalalithaa’s acquittal in the disproportionate assets Case. The Karnataka government filed the Appeal on 23rd June, 2015 saying that the Karnataka High Court’s judgment was a “farce”, and that “arithmetical errors made the judgment illegal”. It is also argued that the judgment had resulted in “the miscarriage of justice” and should be quashed. Jayalalithaa and three of her associates were acquitted in the Disproportionate Assets case by a single judge of the Karnataka High Court in May 2015. The Trial Court had convicted and sentenced Jayalalithaa and her 3 associates to four years in prison besides imposing a Rs 100 crore fine, on September 27, 2014. Justice C R Kumaraswamy had allowed appeals filed by Jayalalithaa and others and reversed the conviction ordered by the trial court. The case has been dragging on for the past 19 years, going back to the year 1996 when friend-turned-foe Dr Subramanian Swamy filed a complaint against J Jayalalitha, who was out of power at the time, alleging corruption and accumulation of assets disproportionate to her known sources of income.

TRIPLE TALAQ ISSUE: The matter is coming up on June 29 itself. Exercise begun by Supreme Court in October 2015 to examine if practices like triple talaq and polygamy permitted by Islamic personal law resulted in gender discrimination within the community is set to gain momentum. It is to be noted that SC’s initiative led to several 'affected' Muslim women coming forward and filing petitions in the apex court challenging the validity of practices. The court is awaiting Centre’s stand on the issue.

UTTARAKHAND ISSUE: After a nearly month long political drama, scenes of which even shifted to the Nainital High Court which eventually quashed the presidents rule, Harish Rawat was back in saddle as Chief Minister on May 12 as the Congress led government stormed back to power after the Supreme Court permitted the trust vote with a 33-28 victory against the BJP. The victory became easier as the apex court did not permit nine Congress rebel MLAs to vote as they had been disqualified. HC too had upheld their disqualification. On July 12 the apex court will hear the plea filed by the MLAs against their disqualification. The court had on May 12 issued notices to the speaker and CM Rawat on the petition.

GAY RIGHTS ISSUE: On February 3, the Supreme Court had referred a batch of petitions against Section 377 of the Indian Penal Code, a colonial-era provision criminalising consensual sexual acts of Lesbian, Gay, Bisexual and Transgender (LGBT) adults in private, to a five-judge Constitution Bench for a possible back-to-roots, in-depth hearing.

Admitting appeals filed by Naz Foundation against re-criminalising of homosexual acts by a two judge bench of the apex court in December 2013, a three-judge Bench of Chief Justice of India T.S. Thakur and Justices Anil R. Dave and J.S. Khehar gave credence to arguments that the threat imposed by the provision amounts to denial of the rights to privacy and dignity and results in gross miscarriage of justice. Chief Justice Thakur said the petitions pose several questions with “constitutional dimensions of importance” while dictating the order of reference to a Constitution Bench he would be setting up shortly. This Bench neither admitted the petitions nor issued notice to the government, leaving it to the future Constitution Bench to do so, if found necessary.

NIRBHAYA CASE APPEALS: On April 8, the Supreme Court had appointed two senior lawyers as amicus curiae to assist the court in deciding the appeals of the four death row convicts in the 2012 Delhi gangrape case. A bench headed by Justice Dipak Misra appointed senior advocates Raju Ramachandran and Sanjay Hegde as amicus.

While Ramachandran, who also argued as amicus for 26/11 convict Ajmal Kasab, would assist the court in appeals of convicts Mukesh and Pawan, Hegde would appear for convicts Vinay and Akshay. “We must express our concern in the matter. We feel the gravity in the whole issue. Sometimes there are many perceptions and we don’t want to miss anything. We would like to be assisted by the amicus curiae in the matter, the court had said. The matter is now listed for July 18.

ENTRY TAX ISSUE: The Supreme Court Registry has already issued a notice reminding all the Advocates appearing in a batch of Cases relating to Entry Tax, to file their respective submissions/compilations to Senior Advocate Harish Salve as well as to the Court. The matter is listed for hearing before a Nine Judges Bench in the week starting from 18th July.

It is also informed that in view of the Court’s Order dated 11th May, 2016 no adjournment will be given in the matter. A three Judge Bench of the Supreme Court on 11th May,2016 made it clear that all the matters relating to the States’ Goods Entry Tax will be heard by a Nine Judges Bench in the week commencing 18th July, 2016. Many Companies including Vedanta and Reliance have challenged entry tax provisions of various states on the ground that they are inconsistent with Article 301 of the Constitution of India which deals with Freedom of trade commerce and intercourse.

SABARIMALA ISSUE: The court hearing the contentious temple entry issue on May 15 asked several pointed questions to the temple management –Devaswom Board-- when it said that the ban on entry of females aged between 10 and 50 years was because they cannot maintain purity for 41 days on account of menstruation.

“How can periods be linked to purity”, a three-judge bench headed by Justice Dipak Misra asked senior advocate K K Venugopal, representing the Devaswom Board when he said the ban was not discriminatory but based on reasonable classification“What is the fulcrum of classification. Tell us”, the bench then retorted. At the outset, Venugopal said women and men both are allowed entry into the temple and hence, there is no case of gender discrimination and females of a particular age group are not allowed due to the centuries-old custom. There are as many as eight Lord Ayappa temples in Delhi and NCR region and women are allowed inside, he said, adding that the Sabarimala temple is different. Women are allowed inside in Sabarimala also, but they cannot climb eighteen sacred steps on the hill unless they maintain 41 days of purity, he said, adding that the High Court verdict, favouring the practice, is a judgment in rem (continuity) and the apex court should not re-examine it by entertaining a PIL. The arguments remained inconclusive and would resume in July.

ROW OVER JUDGES APPOINTMENT RULES: The rift between the Modi government and the Supreme Court collegium is only set to widen and likely to come before the court in the form of some petition and the Centre is likely to persist with some provisions of the revised memorandum of procedure (MoP) on appointment of judges to the higher judiciary despite Supreme Court Collegium objecting to certain key clauses.

On May 28, the Collegium had returned to the government the revised MoP suggesting changes to certain clauses. It questioned the government’s right to reject its recommendation on the grounds of national interest. This clause is contrary to the current practice where government is bound to accept a recommendation by the Collegium, comprising four senior-most judges of the Supreme Court and the Chief Justice of India (CJI), if it reiterates the same.

The revised MoP also provides that once the Centre has rejected a recommendation it will not be bound to reconsider it even after reiteration by the Collegium. The other clause which the Collegium is learnt to have objected to is that the Attorney General at the Centre and Advocates General in the states should have a say in recommending candidates for appointment and elevation of judges to the Supreme Court and High Courts.

PIL SEEKING BAN ON WHATSAPP: RTI Activist Sudhir Yadav had approached the Supreme Court seeking a ban on instant messaging application ‘WhatsApp’ after it had introduced end to end Encryption on 5th April 2016 to its users with their updated version of the application. According to the Petitioner WhatsApp released its white paper explaining all the encryption they have used and made their all future release totally encrypted that is 256 bit encrypted and they explained over their white paper that they don’t store private key. It is averred that it will be nearly impossible for the government agencies to decrypt messages/call/video/image/document in case it is required by the government of India for the National Security purpose because they don’t have private key of any user.

FRESH AADHAAR ROW: On April 25 the Supreme Court had sought the view of Attorney General Mukul Rohatgi on a petition filed by Senior Congress leader Jairam Ramesh challenging the decision to treat Aadhaar bill as a money bill, which was passed during Budget session in March 2016, overruling amendments moved in the Rajya Sabha. The matter is likely to come up soon. Another senior congress leader and lawyer P Chidambaram argued the matter for Ramesh. As Chidambaram questioned the “grossly unconstitutional” passing of the Aadhar law as money bill, Chief Justice Thakur told him that the court wished to seek the views of the AG and posted the matter for May 6 when a detailed hearing has been assured. The CJI also hinted that the matter may be referred to the Constitution Bench hearing the validity of Aadhar cards Rejecting the Rajya Sabha’s five amendments and the Opposition’s appeal not to make “haste”, the Lok Sabha had on March 16, 2016 adopted the Aadhaar (targeted delivery of financial and other subsidies, benefits and services) Bill, 2016, by a voice vote after rejecting the recommendations for five amendments made by the Upper House earlier in the evening.

REFORMS IN BCCI: SC will continue to hear the board’s objections to Lodha panel recommendations aimed at sweeping changes in the structure, management and functioning of the BCCI. The Supreme Court has been repeatedly pulling up BCCI and firmly asked it to enforce the age-limit and tenure cap restrictions as recommended by the RM Lodha panel. CJI T S Thakur-led bench has categorically told the BCCI that these two recommendations will not be among those which will be sent back to the Lodha panel for re-examination. In what could result in the biggest ever shake up of the BCCI, the panel had fixed a cap on the age and tenure of the top office bearers of the board virtually ending the road for many political strongmen in the sports administration. BCCI is also opposed to one state one vote rule and the one which makes it mandatory for it to include the CAG amongst its governing council.

TAX ON DIESEL CARS: SC will soon decide on imposing environment pollution cess on all new diesel cars. The call will be taken while it hears petitions filed by car manufacturers challenging the ban on sale of SUVs of more than 2000 CC. Taking its crusade against the Capital's toxic air to new heights, the Supreme Court had said the “rich cannot be allowed to pollute the environment”. CJI led bench it seems is inclined to revoke the ban if the manufacturers agree on imposition of a cess which may to upto 30% of the cost of a car.

LAST BUT NOT THE LEAST, THE NEW SC JUDGES: The performance of the four new judges Ajay Manik Rao Khanwilkar, Dhananjaya Y. Chandrachud, Ashok Bhushan, and L Nageswara Rao will be keenly watched. They were sworn in on May 13, that is the day the Supreme Court closed for summer break. Though they were part of the vacation bench, the lawyers and litigants of course did not get to see enough of them.