8 cases before Supreme Court’s Constitution bench: All you need to know
From January 17 onwards, the Constitution bench, comprising judges including chief justice of India Dipak Misra, and justices AK Sikri, AM Khanwilkar, DY Chandrachud, Ashok Bhushan, will be hearing eight matters of great national significance. Petitions concerns the constitutional validity of Aadhaar, the entry of menstruating women in Sabarimala temple, whether or not Parsi women should change their religious identity after marriage, the validity of Section 377 of the Indian Penal Code, etc are some of the cases that will come up for hearing by the esteemed bench of the apex court.
With the turmoil in the Supreme Court not subsiding and the four “rebel” judges, including Justices Chelameswar, Gogoi, Lokur and Joseph, not made a part of the Constitution bench that would hear these super cases, as it were, there are mixed feelings about the fate of these important matters in the court of law. While public opinion seems poised to give women their due in the relevant cases, in matters as sensitive and overarching as the Aadhaar project of the UIDAI, where the government has a direct and enormous stake, just how the matter will pan out remains to be seen, keenly watched as the progress will be.
Importantly, the Constitution bench would reconsider earlier SC judgment, particularly in the section 377 case, and it’s possible that this time it might overrule its own previous observation. Here is a brief report on all the eight cases that will come up for hearing.
The Aadhaar case | Justice Puttaswamy versus Union of India
While the nine-judge bench on August 24, 2017 had held privacy was a “fundamental right”, that was a “limited question” in the greater challenge against Aadhaar, and the Aadhaar Act of 2016 itself. Former Karnataka High Court judge Justice Anand Byrareddy filed an impleadment application before the apex court challenging the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, while the original Aadhaar case petition was filed by another retired Karnataka HC judge Justice K Puttaswamy. The privacy judgment is known as the Puttaswamy versus Union of India case.
The Constitution bench of the Supreme Court is therefore looking at whether or not Aadhaar violates an individual’s right to privacy, and whether it has constitutional validity in anyway, not just in its expanded, all-pervasive form. While the bench has extended the deadline for Aadhaar linkage to other services to March 31, 2018, including to bank accounts and mobile numbers, the government is going ahead with mandating more and more linkages.
The delay in forming of the Constitution bench in the Aadhaar matter has been a matter of much debate and frustration among the rights activists and petitioners, and also came up in the discussion following the press conference by the four dissenting judges, who lamented that this was one instance in which administrative lapses had direct bearing on how Aadhaar became “too big to fail”.
Section 377 | Navtej Singh Johar versus Union of India
The “celebrity petition” of Navtej Singh Johar and a four other LGBTQ citizens against the validity of Section 377 of the IPC is one more matter that will be heard by the constitution bench, scrutinizing the earlier SC order G Singhvi on December 11, 2013 (Koushal versus Naz Foundation), that reinstated Section 377, overruling a 2009 Delhi High Court order (Naz Foundation versus NCR) reading it down. However, there’s a curative petition already existing, filed in 2014 itself, that remains to be heard, and it’s protocol that the curative is decided first.
In fact, the Right to Privacy judgment has much bearing on the clutch of cases pertaining to Section 377 and the criminalization of homosexuality via penalizing gay sex, or sex “against the order of nature”. Questions of autonomy, privacy, fundamental rights, bodily integrity, etc, will once again come up, as will be the question of social morality versus constitutional morality.
Adultery law | Joseph Shine versus Union of India
The Constitution bench will look whether existing laws and previous judgments criminalising adultery and penalising men having sexual intercourse with someone’s wife, should be done away with, or changed. This is also a case in which a current SC judge – DY Chandrachud – will be reinvestigating a judgment given out by his father, Chief Justice YV Chandrachud, in the Sowmithri Vihnu case, that restricted the class of offenders to men in case of adultery.
The contention against adultery laws is that the wife cannot be treated as a chattel or commodity possessed by the husband, and sex between two consenting individuals shouldn’t be penalised. As two equal partners, should women be penalised for sex outside marriage, and in that case, doesn’t this discriminate against married women, because they seem to be in an unequal footing when it comes to single women in sexual relationship with married men.
Sabarimala case | Indian Young Lawyers’ Association versus Satte of Kerala
As Sabarimala Temple prevents the entry of menstruating women, this case is of extreme importance and is about access to public spaces for women, as it’s about “right to pray”, a movement launched by many activists at the helm of the Sabarimala temple entry issue. While earlier, a three-judge bench headed by Dipak Misra (not CJI then), questioned whether the exclusionary practice based on a biological factor amounted to “discrimination” violating Articles 14, 15 and 17, or was it about “morality” and “essential religious practice” as stated in Articles 25 and 26 of Constitution.
The Constitutional bench will relook at rules and provisions of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, and this will be a matter of women’s fundamental rights versus “essential religious practice”. This is a case with immense public interest and also fits well with the current dispensation’s “pro-women” image.
Parsi women’s religious identity after marriage | Goolrokh M Gupta versus Sam Rusi Chothia and Others
Another women-centric issue is at the heart of the case that would decide whether the religious identity of a woman changes after marriage, particularly in the case of a Parsi woman after her marriage under the Special Marriage Act. This is an SLP (Special Leave Petition) against a Gujarat HC judgment that said a PArsi woman’s religious identity is automatically concerted to Hinduism after marrying a Hindu man under the Special Marriage Act.
The Constitution bench had in an interim order allowed Goolrukh Gupta who married a Hindu man to attend and participate in the last rites of her parents as per Zoroastrian tradition. However, this case has tremendous political fodder insofar as its impact on other inter-religious marriages, as well as the highly volatile campaigns along Hindutva lines pressing on against inter-faith marriages. How the case proceeds and how it impacts any inter-religious marriage will be keenly observed and commented upon in days to come.
Disqualification of MPs, MLAs after being chargesheeted | Public Interest Foundation versus Union of India
Should a legislator facing trial in a criminal case be allowed to contest elections? That’s the pressing question that will be heard by the Constitution bench. Earlier, a three-judge bench came up with the following question: “Whether disqualification for membership can be laid down by the Court beyond Article 102(a) to (d) and the law made by Parliament under Article 120(e).”
This is again a significant matter given corruption is endemic to Indian polity. However, there are questions of equal opportunity, right to freedom, and right against discrimination, that are all valid here. In case heard favourably, this might become a handy tool for the government to target members of the opposition by framing arbitrary charges. Yet, at what point does the cleansing of Indian polity really begin, from a legal point of view?
Tax matters and consumer rights
The other two cases – a) M/s Shanti Fragrances v Union Of India [Tax Issue And Revisit Of Prevailing Rule Of Precedence] and b) New India Assurance Co Ltd v Hillli Multipurpose Cold Storage (P) Ltd [Commencing Point Of Limitation For Filing Opposite Party Version In Consumer Case] – pertain to tax exemptions and consumer protection, and have their own civic importance.