Week of February 1, 2021

Free speech questions abound, hybrid hearings on the horizon, 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

Hybrid in-person hearings on the horizon

With the COVID vaccination campaign in India gaining steam, the Chief Justice on Monday suggested that a hybrid form of in-person hearings may be on the horizon. The meeting between the Chief Justice, the Solicitor General, and the Bar Council of India followed protests by lawyers over the virtual hearing format that has existed since March of last year. The Chief Justice asked the Court’s secretary general to resolve pending technical issues to resume physical hearings by March 2021. However, returning to a normally functioning Court is unlikely to happen before the pandemic is over. 

Meanwhile, lawyers and clerks will be able to access the Court’s Registry and other facilities from February 8. 

Comedian Munawar Faruqui granted bail

Munawar Faruqui was jailed in January for allegedly “hurting religious sentiments”. He had allegedly made derogatory comments against Hindu gods during stand-up bit. Appealing the Madhya Pradesh High Court’s refusal to grant bail, Mr. Faruqui denied the allegation that he made any derogatory remarks. The Court granted Mr. Faruqui interim bail, and also stayed an arrest warrant issued by the Uttar Pradesh police. The Court also commented on the merits of the case, noting that the arrest did not follow procedure per the criminal code.

CAN’T MISS THIS

The government, the Court, Twitter, and free speech

The government cited more than half a dozen of the Court’s judgments as it asked Twitter to comply with its orders banning posts and accounts on the social media application. The Ministry of Electronics and IT recently asked Twitter to block around 250 posts and accounts because they allegedly accused the government of planning a genocide against farmers. While the tweets were certainly hyperbole, the government asked Twitter to take the content down because the tweets were ‘fake, intimidatory, and provocative” and lacked proof.

According to the government, however, Twitter unblocked many of these accounts. Now, the government has issued notice to Twitter to comply with its orders or face penal action. Government sources allege that Twitter is only an “intermediary” and must comply with government orders.

Regulating free speech on social media is an issue that has reached the Court. On February 1, the Court asked for the government’s reply on a petition seeking to regulate social media content, including through the government’s prosecutorial powers on content that spreads hate or fake news. The case will be heard with another petition that seeks to establish a tribunal to adjudicate complaints against the media. 

PETITIONS

Republic Day violence petitions set to be heard

The Court is set to begin hearings on petitions related to the tractor rally violence on Republic Day. The tractor rally was a protest against the government’s agricultural reforms that turned into a riot. One of the petitions asks the Court to create an inquiry commission that will produce a report on the violence. Another petition asks the Court to direct authorities and the media not to declare the farmers as “terrorists” without evidence. Perhaps the Court’s infamous mediating commission will be able to lend a hand.

Court sends religious conversion laws to High Courts

Petitions challenging the constitutionality of religious conversion laws in Uttar Pradesh and Uttarakhand will have to go through the High Court system before reaching the Court. Responding to such petitions, the Court ruled that Uttarakhand and Allahabad high courts have jurisdiction over these cases first. The Court distinguished the merits of the case from the appropriate jurisdiction, stating that “we are not disputing the importance of the issue.” The petitioner noted that similar religious conversion laws were pending in Gujarat and Madhya Pradesh. 

Petition seeks return of internet to the Delhi-Haryana border

petition seeks to overturn a ban on mobile internet to the Delhi-Haryana border, which the government instituted after protests against agriculture reforms went awry on January 26. Calling access to internet a fundamental right, the petitioner cited the Court’s similar position in cases to restore internet access to Jammu & Kashmir. 

STORIES WE’RE READING

On the Court’s birthday

This article remembers the formative days of the Court, which had its first session two days after India became a republic on January 26, 1950. Both Attorney General M.C. Setalvad and Chief Justice Sir Harilal Jekisundas Kania laid out the Court’s vision in speeches in the Court’s first gathering. The Attorney General promised that the Court will represent “the consciousness of the Indian people”.  The Chief Justice hoped that the Court will maintain its independence and honor the wide powers given by the Constituent Assembly.

Sitting Justice praises the Prime Minister

In remarks celebrating the Gujarat High Court’s diamond jubilee, Justice M.R. Shah lavished praise on the Prime Minister, calling him “our most popular, loved, vibrant, and visionary leader”. Ironically, he discussed the separation of powers between the executive and the judiciary during the same speech. If fawning praise by the judiciary on the executive raises your eyebrows, this isn’t the first time: Justice Mishra called the Prime Minister an “internationally acclaimed visionary” just last year.