Supreme Court judgments passed in 2019: Discussion held by CLPR

Center for Law and Policy Research (CLPR) recently hosted ‘The Supreme Court in Review, 2019’, in association with the NCS chapter of the St. Joseph’s College of Law, Bangalore. The event was organised to facilitate critical public engagement with respect to the Supreme Court of India and its judgments..The event comprised three sessions that touched upon the themes of democracy, Supreme Court reforms, and faith and religion.In the first session, Malavika Prasad, Advocate and doctoral fellow at NALSAR University of Law, shared her thoughts on the scope of Money Bills. Analysing the Puttaswamy and Rojer Mathew judgments, she argued that the recent passing of the Aadhaar Bill and the Finance Bill, 2017 as Money Bills posed a great threat to Indian bicameralism..The second session commenced with Apurva Vishwanath, Assistant Editor with the Indian Express, stating that the role of the Chief Justice of India must always be examined. The previous year had been an eventful year in terms of the role of the CJI, she noted.“When Justice Gogoi came in we all anticipated how he was no-nonsense judge and expected him to make better use of judicial time. But, some 3-4 cases took the centre stage in the whole year – Ayodhya, Sabarimala, Rafale, the sexual harassment case, Rahul Gandhi’s criticism of Modi etc.".She further pointed out,“You had a court with full strength but no time to hear the Kashmir issue. It shows the arbitrariness with which the Court decides what matters are to be heard and what are not...”Vakasha Sachdev, Associate Editor (Legal) with The Quint, spoke about the fact that the judicial immunity that Supreme Court judges enjoy from public scrutiny is not conducive to a strong judiciary. He balanced this by saying that judges should only be assessed in terms of the judgments they author, and not for their personal conduct.“How many judgments has the Supreme Court actually passed against the stand of the central government? Not many. Many judgments are passed where the approach of the case is entirely against the way the Court has to function. In Judge Loya's case statements by judges (not on oath) in their personal capacity were considered reliable evidence in place of affidavits. Why is this happening?”.He further mentioned that judges cannot take criticism in a positive manner.“We never had a culture to critique and examine current events in the Indian academia. Why don't we have a culture of genuine critique based on law? The grounds for criticism are many. In the Alok Verma case, Justice Gogoi adjourned the case for 20 days as he did not like a news report on the case – this is not how a Constitutional Court functions. The final decision which came 2-3 months later only utilized information initially available to the Court, yet the Court kept the matter pending and the ultimate decision was in the government’s favour.In the Kashmir case, the matter was not heard as Justice Gogoi as he was busy with the Ayodhya case. But why couldn't other 34 judges hear it?"Sachdev concluded by stating that students, activists, and practicing lawyers should take the initiative to critique the Court in order to prevent its erosion..In the third session, former judge of the Karnataka High Court, Justice Ashok B Hinchigeri, discussed Justice Indu Malhotra’s dissent in the 2018 Sabarimala judgment. Sharing his personal views, he warned against the judiciary engaging in ‘ecclesiastical matters’. He stressed that an individual’s right to freedom of religion cannot override that of a group’s.“To many people, secularism is being anti-religious, which is not the correct meaning of secularism. It basically means state is neither religious nor anti-religious nor irreligious…This concept arose in medieval Europe in the struggle of supremacy.”He said that the Ayodhya verdict was not based on faith or belief or religion. The verdict was based only on the possession aspect, he stated. The delivery of the judgment has been done with “dispassionate objectivity” by the Supreme Court, he went on to observe..Senior Advocate and co-founder of CLPR Jayna Kothari took the audience through the Court’s Sabarimala verdicts (2018 judgment and 2019 review judgment). She highlighted how in the 2018 judgment, the Court had found that devotees of Lord Ayyappa do not constitute a separate religious denomination, and hence are subject to the social reform mandate under Article 25(2)(b).She further stated that,“In my view, the court has taken a restrictive approach where it has hesitated to overturn the status quo when it came to questions of gender and faith. The Court didn’t hesitate to say that even though Article 25 is a fundamental right, if it violates the right to gender equality, there can be an interference. Is the Court too worried that it will be perceived as being insensitive to cultural or religious beliefs?”Turning to the review judgment, she focused on Justice Nariman’s dissent, in which she criticized the majority for its very broad interpretation of the Court’s review jurisdiction. .Siddharth Chauhan, Assistant Professor at NALSAR, concluded the day by taking the audience through the history of the Ayodhya title dispute. Speaking about the same, he stated that the interface between judiciary and religion had 3 patterns. “Individuals who are part of religious groups are affected by the practices of religious groups that seek state intervention to protect their interests. Inter-denominational disputes is the first category, where an individual sporting a turban or sporting a religious were not allowed to continue in public employment. The second category is individuals who are not part of the sect, who pointed out that group practices are discriminatory to the extent that women are being excluded from a public temple. The Ayodhya case falls in a different category, we cannot simply see it as a property dispute.”Others panellists at the event included Nitin Sethi, Venkatesh Nayak and Advocate Suhrith Parthasarathy. Every session concluded with an interactive question and answer session. The event brought together various judges, lawyers, litigants, academics and students from across India to discuss the landmark judgments delivered by the Supreme Court in 2019.