Outside a small group of judges, lawyers and journalists, few Indians get to watch proceedings in the Supreme Court of India, or actually take time to read a judgment. However, it is the apex court of the largest common law judicial system in the world, as also the court of last resort for more than a sixth of the world’s population. Its judgments have far-reaching social, economic and political ramificationsand consequences that affect the lives of every citizen.

If you followed the news in 2019, you might have got the feeling that the Supreme Court was running the country. You wouldn’t be far off. Every issue of any consequence, and many of none whatsoever, found their way to the Court. Through the course of the year, the Court decidedor chose not to decidecases that went to the very heart of India’s constitutional law and Indian society. On occasion, when concerned citizens looked to the Court to stand up for civil liberties, it let the matter slide; when it did take action, its orders often left loopholes the government could exploit.

Take for instance, the case of former CBI director Alok Verma. When the central government divested Verma of his powers in October 2018, he challenged the order in the Supreme Court. In January 2019, the Court reinstated him. Inexplicably, however, it also directed him to desist from taking any major policy decision till the committee, set up under Section 4 of the Delhi Special Police Establishment Act, took a decision on his future. A few days later, the committee asked Verma to step down once again.

In February, the Court was called upon to look into the vacancies in information commissions (set up under the RTI Act) across the country. In Anjali Bhardwaj v Union of India, the Court stressed on the importance of transparency in appointments to the State and Central Information Commissions. It passed wide-span directions seeking to ensure selection of independent panels. But a few months later, when the government hollowed out the independence of the information commissions and commissioners through substantial amendments in the RTI Act, it looked away.

The Court’s own independence and transparency came into question. In December 2018, the Collegium had recommended Justice Pradeep Nandrajog and Justice Rajendra Menon for elevation to the Supreme Court. The composition of the Collegium changed after Justice Madan Lokur retired on December 30, 2018. On January 10, 2019, the new Collegium passed a resolution overturning these decisions on the basis of new material, the contents or relevance of which were never made public.

The matter of Justice Akil Kureshi’s appointment as a high court chief justice stayed in the news through the year. Justice Kureshi was the seniormost judge in the Gujarat High Court. For context, it was he who, in 2010, had directed that Amit Shah be sent to police custody for his alleged role in the Sohrabuddin case. In May, the Collegium recommended that he be appointed chief justice of the Madhya Pradesh High Court, which has a strength of 53 judges. The Centre sat on the recommendation for months, before requesting the Collegium to reconsider its decision. Had the Collegium reiterated its recommendation, the government would have had no choice in the matter. Instead, the Collegium caved in, and recommended the appointment of Justice Kureshi as chief justice of the high court in Tripuraone of the smallest high courts in the country, with a strength of three judges.

That said, the lack of transparency in the functioning of the Collegium was not the worst institutional challenge the Court faced this year. In April, a former employee of the Supreme Court registry forwarded a detailed affidavit to the SC judges, alleging sexual harassment by retired Justice Ranjan Gogoithen Chief Justice of India. She also levelled allegations of a subsequent pattern of vengeance inflicted upon her and her family. In this unprecedented situation, the Court could have ordered an enquiry under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act or followed its internal sexual harassment complaint procedure. What it did instead was to first summon an emergency Saturday hearing’ in a case dramatically titled: In Re: Matter of Great Public Importance Touching upon the Independence of Judiciarymentioned by Shri Tushar Mehta, Solicitor General of India’. It concluded the charade with a secret, internal report exonerating Justice Gogoi. In between, it appointed Justice A.K. Patnaik, a retired judge of the Supreme Court, to enquire into wild allegations regarding a conspiracy to fix the Chief Justice’. Justice Patnaik is yet to conclude his enquiry.

Former CJI Gogoi made news in 2019 for other reasons too. In something that took on the appearance of a personal project, he instituted a court-administered mechanism to update the NRC (National Register of Citizens) in Assam, and even set a deadline by which it had to be executed. The NRC is a register containing the names of Indian citizens; it was prepared by census enumerators from the census slips of 1951. Petitions seeking an updation of the Assam NRC were filed in 2009, and it was in December 2014 that the Supreme Courtmore specifically, a bench consisting of Justice Ranjan Gogoi and Justice Rohinton F. Narimantook upon itself the task of ensuring that the process was completed. Many legal commentators have pointed out that this was beyond the Court’s legitimate writ, and exposed it to charges of judicial overreach’.

The updated NRC, which came out in August 2019, excluded more than 1.9 million people. Media was awash with stories of malafide exclusion, of how the updated list of citizens had left out hundreds of thousands of genuine citizens. And, to top it all, after Justice Gogoi retired in November, both the Centre and the state government denounced the list and have proposed a fresh NRC process.

Justice Gogoi also presided over one of the longest running and most contentious legal disputes in the country. Civil proceedings in the Babri Masjid-Ram Janmabhoomi dispute came to an end on November 9, with the Supreme Court holding that the Hindu side had possessory title over the disputed site. A lot has already been written on the merits of the decision, but the priority given to the adjudication of the case merits some comment.

Ever since appeals against the Allahabad High Court judgment partitioning the disputed land into three parts came up before the Supreme Court, it had tried to characterise the issue as a simple land dispute’. What, then, was the reason to have it heard by a bench of five judges? Under Article 145(3), a bench of five judges is constituted for cases involving a substantial question of law that requires an interpretation of the Constitution. It is also not clear why the hearing of the case was fast-tracked, even though an application seeking early hearing of the case had been dismissed as recently as January.

The Court’s 40-day daily hearing’ commitment in the Babri Masjid-Ram Janmabhoomi case was cited as a reason for its inability to deal with other important issues that came up before it. Foremost among these were the petitions challenging the communications lockdown in Kashmir and the effective repeal of Article 370. When these matters came up for hearing before the Court in August, it pointed out, on multiple occasions, that it did not have time to hear the petitions. The delays even prompted the United Nations High Commissioner for Human Rights to issue a statement criticising the Supreme Court.

The hearing of the petitions challenging the lockdown was finally held and concluded in November. However, no judgment has been delivered yet. Hearing of petitions challenging the withdrawal of Jammu and Kashmir’s special status, and the bifurcation of the state started on 10 December and will continue when the Court reopens after the winter recess in January 2020.

Another critical matter in which the Court acted unconvincingly was the challenge to the electoral bond scheme. Electoral Bonds were introduced in 2017 and were challenged in the Supreme Court almost immediately after. The matter was first heard in October 2017 and had been pending ever since. It was finally heard for interim orders in April 2019. The Court did not grant a stay against the scheme, but it directed all political parties to submit details of donations (donor names and amounts) received through electoral bonds to the Election Commission in a sealed cover’. Recent reports reveal that the order was not complied with. The Court’s reluctance or inability to hear the challenge meant that a shadow of dubious funding running into billions of dollars loomed over the 2019 general election as well as multiple state elections. This is an issue that goes to the very heart of our democracy.

The Court’s handling of the Kashmir petitions and the electoral bonds issue is an illustration of what lawyer Gautam Bhatia describes as the doctrine of judicial evasion’. Faced with a dispute between individuals and the State over exercise of civil and constitutional rights, the Court’s response is often to not decide it one way or another but to simply refuse to hear the case. Even while this maintains a sort of legal status quo, the State takes steps on the ground to create a fait accompli, effectively making the dispute academic and potential remedies infructuous. In other words, by not deciding the case, the Court is, in effect, deciding in favour of the Stateand with none of the public accountability that comes with a written, reasoned judgment.

In this saga of judicial surrender, there were a few notable exceptions too. Acting on petitions seeking greater paper-trail verificationvia VVPAT terminals attached to EVMs (electronic voting machines)the Court directed the Election Commission to verify the VVPAT slips in five polling stations per constituency instead of just the one mandated earlier. In another matter, it also agreed to examine the Election Commission’s powers to regulate hate speech. The Court’s nudge resulted in the Election Commission taking action against the likes of Maneka Gandhi, Yogi Adityanath, Mayawati and Azam Khan, among others, who were censured and barred from election campaigning for some time. More recently, the Court’s quick intervention in the matter of the formation of government in Maharashtra saved the process from degenerating into a worse mockery of the Constitution.

The Court also did well in some cases concerning commercial law. Petitions on the validity of the Insolvency and Bankruptcy Code and amendments in the Code were dealt with expeditiously. It also acted with speed in matters involving the death penalty, and its judgment in the Ankush Maruti Shinde case was specially notable for the acquittal of six men who had been sentenced to death.

In How Democratic Is the American Constitution, political theorist Robert Dahl had argued that the framers of the US Constitution took pains to set up hurdles to majority rule. Like the US, India too has an anti-majoritarian’ Constitution. Indeed, few democratic constitutions place as many obstacles to a majority government. These obstacles include: indirect methods of election/ appointment of some government officials; a separation of powers among the legislative, executive and judicial organs of State as well as between the two houses of the legislature; a federal division of powers between the national and state governments; and a complex procedure for constitutional amendments.

The Supreme Court has the power of judicial review of decisions taken by the Legislature and the Executive. It can strike down laws or constitutional amendmentsregardless of the fact that they were ushered in by a democratic majority. So, the Court is the lynchpin of the Constitution’s anti-majoritarian structure.

Over the years, the Court has assumed immense powersand little accountability. The Court legislateswithout ever having been elected by an electoral majority. It administerswithout ever having to worry about the political or even legal consequences of its diktats. It interprets law, supervises criminal investigations, orders the setting up of new institutions and lays down rules by which autonomous’ institutions must run. Nothing ever seems beyond its jurisdiction or power.

And yet, in some ways, the Court remains the weakest branch of the State. It must depend on both the Legislature and the Executive for enforcement of its decisions. In the words of Alexander Hamilton, the Judiciary has no influence over either the sword or the purse. It can never attack with success either of the other two and must with all possible care defend itself against their attack.

Year 2019 showed the vulnerability of the Supreme Court, and its willingness to bow to an assertive Executive. A common thread running through the Court’s decisions this year was that the Government almost never lost. It was also a year marked by the jettisoning of procedural norms and safeguardsmanifest, for example, in the frequent recourse to sealed covers’ and the lack of transparency in judicial recusals.

Under Justice S.A. Bobde, who took over as the CJI in November, we should expect more of the same in the new year. For instance, a bench led by the chief justice refused to pass an order on a plea seeking safe entry for all women into the Sabarimala temple in Keralaeven while maintaining that there was no stay on last year’s judgment allowing entry. More recently, responding to petitions seeking an enquiry into the police action at Jamia Millia Islamia university, during the nationwide protests against the Citizenship Amendment Act and the proposed pan-India NRC, the Court sat on its hands, while implicitly blaming students for the violence.

Other problems persist: the Collegium system remains opaque and the Court does not seem to have the will to be an effective counterpoising weight to a powerful and overreaching government bent on reconfiguring the idea of India. In 2020, the Court finds itself at a crossroads: it may continue to be, as Lord Atkin said in his famous dissent in Liversidge v Anderson, more Executive-minded than the Executive’. Or it may, as we hope and the Constitution originally envisaged, stand between the subject and any attempted encroachments on his liberty by the Executive.’

CASE STUDIES

There were some momentous twists and turns in India’s national journey in 2019, and the Supreme Court of India was often in the driver’s seat. Key highlights:

January

Court upholds constitutional validity of Insolvency and Bankruptcy Code 2016

Conditions laid down by Maharashtra government to run dance bars in Mumbai relaxed

February

Bihar government slammed for mismanagement of shelter homes; SC orders transfer of Muzaffarpur shelter home sexual assault case from Bihar to a court in New Delhi; CBI’s then interim chief M. Nageswara Rao held to be in contempt of court for transferring, in violation of an earlier order, its former joint director A.K. Sharma, who was probing the case

March

In a stated attempt at healing’, court refers the contentious Ayodhya dispute to mediation by a three-member panel

April

Political parties directed to submit details of donors and amounts of electoral bonds to the Election Commission in a sealed cover

Allegations of sexual harassment against then Chief Justice Ranjan Gogoi rock the Supreme Court

May-June

In-house panel clears then CJI Gogoi of wrongdoing (in harassment case); report not made public

Dozens of complaints regarding the EC’s inaction on violation of the model poll code reached the Supreme Court. On the Court’s prodding, action was taken against the likes of Yogi Adityanath and Mayawati; Narendra Modi and Amit Shah were cleared

July

RERA registration of Amrapali Group cancelled

Gujarat High Court Bar Association moves SC on the Centre’s refusal to clear the elevation of Justice Akil Kureshi as Madhya Pradesh High Court chief justice

August

Daily hearing of Ayodhya title suits begins on August 6

Petitions filed challenging the communications lockdown in Kashmir and the abrogation of Art. 370 in J&K

September

40-day daily hearings of Ayodhya title suits continue as do the persistent adjournments of the Kashmir petitions’

Court directs the UP government to set up an SIT to investigate sexual harassment allegations against former Union minister Swami Chinmayanand of the BJP

October

Court imposes liability of over Rs 80,000 crore on telcos in judgment on scope of adjusted gross revenues’; reports say Vodafone may exit Indian market

November

Landmark verdict awards disputed Ayodhya site to Hindus

Court reserves judgment in petitions challenging the lockdown in Kashmir

Justice S.A. Bobde takes over as CJI

December

Hearing starts on petitions challenging the abrogation of Art. 370 in Kashmir

No court action on the passage of the Citizenship Amendment Act

The Pending Agenda

Among the most pressing issues of national importance the Supreme Court has to consider in the new year are:

Citizenship Amendment Act (CAA)

Photo: Qamar Sibtain/Mail today

Multiple petitions challenging the CAA were heard on the last day before the Court closed for the winter vacation. The Court has sought a response from the Union government and posted the cases for hearing on January 22. Commentators such as Madhav Khosla have gone as far as to say that if the court’s entire reputation rested on one moment in history, this is it.

Kashmir

Judgment is due and expected in the case challenging the communication lockdown in Kashmir even as hearings continue of the petition contesting the abrogation of J&K’s special status. Also at issue here are the sanctity of the right to freedom of speech’ and the federal character of the Constitution.

Electoral Bonds

An issue of great significance for the largest, possibly most expensive, democratic exercise in the world. The challenge to the scheme has been pending for two years. Recent investigative reports indicate the government ignored serious concerns raised by the Election Commission and the RBI while promulgating the scheme. A stay application is likely to be heard in January.

UAPA

The court has sought the Centre’s response in multiple petitions challenging the 2019 amendments to the Unlawful Activities (Prevention) Act, which, among other key changes, allowed the government to designate individuals as terrorists. Likely to be heard early next year.

EWS Reservation Scheme

More than 20 petitions have been filed challenging the 103rd constitutional amendment, which provides 10 per cent quota for economically weaker sections. Hearing on referral to a five-judge bench took place in July; a final hearing and verdict on the petitions is awaited.