Week of December 14, 2020

Uber and Ola are not colluding, mandatory confessions could violate privacy, and more!

Apex Court Weekly is a weekly round-up of judgments, petitions, orders and notices as they develop at the Supreme Court of India (“the Court”). We also occasionally cover High Courts. We cover some stories that gather national attention and some that should. This update is written by Rahul Srivastava, J.D. candidate at Cornell Law School, and supported by the Cornell India Law Center.

HOUSEKEEPING

Can anybody take a joke?

We've extensively covered contempt petitions against individuals for criticizing the Court on Twitter. The latest individual subject to the Court's scrutiny is comedian Kunal Kamra. Mr. Kamra called the Court "the Supreme Joke of the country", and tweeted a picture of the Court draped in a saffron flag, the color of the ruling Bhartiya Janata Party (BJP). The Attorney General allowed the contempt petition, filed by law students, to proceed. On December 18, the Court issued notice. In response, Mr. Kamra tweeted that the Court should spend its time on more pressing matters of national importance.

Protests to continue

Last week's ACW covered the petition to halt the farmer protests against India's new agriculture laws. The Court declined to discontinue the protests this week, calling protesting against laws a fundamental right. Chief Justice Bobde commented that the protests should continue without impediment and breach of peace. The Court asked the government to form a committee to mediate between the concerned sides.

Andhra Pradesh High Court likely overstepping authority

The Court stayed an Andhra Pradesh High Court order to begin an inquiry into possible "constitutional breakdown in the state". The inquiry would consider recommended President's Rule in the state, effectively suspending administration by the elected state government. Calling the order disturbing, the Chief Justice asked if "anybody had seen an order like this before?"

CAN'T MISS THIS

Merit still matters

In Saurav Yadav v. State of Uttar Pradesh, the Court ruled against general communal reservation, and reserved a place for merit in selecting candidates for government positions.[1] The Court conceded that a more meritorious candidate from the general pool may lose out to fill the government's quota requirements, but maintained that there would be no place for identity considerations in the general pool.[2]

The State of Uttar Pradesh essentially argued that a candidate for public employment eligible under quotas could not apply through the general pool on their merits. Justice Bhat's concurring opinion rejected that claim.[3] If that argument was accepted, then each social group would be confined to their assigned quotas, and meritorious candidates would lose out. Perversely, applicants with less merit would be selected in the open category.[4]

The case concerned female applicants for police constable in Uttar Pradesh who were denied despite securing higher marks than the last admitted candidate in the general category. The Court directed the Uttar Pradesh government to appoint these applicants as constables. 

Uber and Ola are not colluding

Antitrust probes against Big Tech companies are raging around the world, including in the U.S., E.U. and China. Recently, the Competition Commission of India ("CCI") had declared that ride-hailing services Uber and Ola were not colluding by engaging in price-fixing. The applicant before the CCI had alleged that the algorithms that mandated ride fares effectively created a cartel between the two companies.[5]

On December 15, in Samir Agarwal v. Competition Commission of India, the Court affirmed the CCI decision. Uber noted that drivers operate independently, and can negotiate with riders privately, or via either the Uber or Ola apps.[6] The independent discretion that thousands of drivers could exercise made any large-scale collusion implausible.[7]

Much of the opinion discussed whether the applicant had standing to bring the case before the CCI. The Court permitted the applicant to bring such cases before the CCI.[8] However, given that the competition tribunals did not find facts supporting collusion, the Court swiftly dismissed the case.[9]

PETITIONS

Emergency was a bad idea

The Court's acquiescence during the Emergency enabled the suspension of constitutional rights. It's a legacy that has not been forgotten. A 94-year old's petition seeking to declare the Emergency retroactively unconstitutional received a mixed response from the Court, which said that the "Emergency should not have happened".  Nevertheless, the Court was hesitant against relitigating a matter that occurred over 45 years ago.

Does mandatory confession violate privacy rights?

petition seeks to declare annual mandatory confession in the Malankara Orthodox Syrian Church as a violation of individual privacy rights. All members of the Church over 21 years old need to submit an annual confession. According to the petitioners, the Church's priests used information obtained from confession for sexual and monetary exploitation. On December 14, the Court agreed to hear the case.

STORIES WE'RE READING

Farmers legal game-planning

We're covering the farmers protests as they develop at the Court. As the Court has allowed the protests to continue, the farmers unions will consult with their lawyers for the game plan going forward. One lawyer that these pages and the Court is familiar with: Prashant Bhushan.

The Court blames the government

During hearings, the Court blamed the government for its overflowing docket, calling it "fully responsible". The Court was hearing petitions filed by disgruntled government employees. Justice Diwan expressed his displeasure for the government's tendency to appeal everything before the Court, suggesting many appeals lack merit. 

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[1] Page 60 of opinion[2]Id.[3] Page 11 of opinion[4] Page 10 of opinion[5] Page 3 of opinion[6] Page 11 of opinion [7]Id.[8] Page 28 of opinion[9] Page 32-33 of opinion