Week of February 22, 2021

The government argues against same-sex marriage, the Court stops using WhatsApp, 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.


The Court is not SCOTUS

At the Supreme Court of the United States, lawyers address the Justices as “Your Honor”. Atthe Supreme Court of India, lawyers address Justices as “Your Lordship”. The Chief Justice gave the quick lesson to a law student who was petitioning the Court to strengthen the judicial infrastructure in criminal cases. To add further embarrassment to the law student, the Court informed the student that the Court has already handed out instructions on the matter as a response to a similar petition. After the student admitted his ignorance, the Court adjourned the case for four weeks and asked the student to prepare better next time.

Additional courts to handle check bounces may be coming

More than 3.5 million cases concerning bounced checks are pending at courts across the country. Using its suo motu powers, the Court began proceedings on the matter and asked the government and the RBI for responses. Now, the Court is open to creating courts that will exclusively hear such cases, which amount to approximately 15% of India’s criminal case docket. The Chief Justice noted this week that while the government will set up the courts, the Court will have to create the necessary procedures to conduct such cases. 


No more chances

Perhaps channeling its inner Eminem, the Court dismissed petitions that sought to give aspirants one more chance to sit on India’s competitive civil service exams. Notably, the petitioners were frontline workers who claimed that they missed their last chance to qualify for India’s notoriously large civil service. The petitioners had either aged out or exhausted their maximum permitted attempts at the exam. 

The government, who employ these civil servants, had initially opposed the petitioners. However, they changed course and agreed to provide a “one-time exception” to those who exhausted their maximum attempts last year. While the Court asked the government to extend the exception to those who aged out, the government refused. The government argued that this could create a perpetual cycle of exception seeking.

In disagreeing with the Court, the government made a compelling argument: The Court had no business interfering with government policy. 

Government: Same-sex marriage not part of “Indian ethos”

In an affidavit before the Delhi High Court, the government called marriage a union between a biological man and woman. Any other interpretation of marriage would “make all statutory provisions unworkable”, according to the government. 

Two women filed a petition at the Delhi High Court seeking to marry under the Special Marriage Act (SMA). The petitioners cited the Court’s opinion in Navtej Singh Johar v. Union of Indiathat decriminalized homosexual activity and argued that the opinion warranted same-sex marriage recognition. However, the government argued that the case simply decriminalized an activity and did not “legitimize the human conduct in question”. 

Complicating the fight for marriage equality in India are the myriad of personal laws that are governed according to religion. According to the government, the customs of various religious groups only permit marriage between a man and woman– and are the source of legal recognition of marriage. The government argued that the issue should be left to the legislature, which limited recognition and the resulting benefits of marriages to heterosexual couples.


Contempt petition against killing tiger revoked

Forest officials killed a tiger in Maharashtra in 2018 after the Court decided that it was a man-eater. This week, the Court rejected a contempt petition filed against the forest officials for killing the tiger. The petitioner claimed that the forest officials participated in celebrations in the local Maharashtra village following the killing and that the tiger was in-fact not a man-eater. The Court cited a state government report that noted forest officials did not directly or indirectly participate in the celebration. The Court also noted that they were not told the tiger was not a man-eater during the hearings in 2018.

Kunal Kamra contempt petition continues

The Court adjourned the contempt petition against comedian Kunal Kamra for four weeks. We’ve covered the petitions that the Attorney General permitted to proceed against Mr. Kamra for his tweets that criticized the Court. The case has been adjourned as the petitioners want to respond to Mr. Kamra’s reply. In his reply, Mr. Kamra did not back down from his criticism and decried India’s growing culture of intolerance, calling it a “much loved national indoor sport.”


The Court stops using WhatsApp

Amidst the controversy over WhatsApp’s new privacy policy, the Court will not use the messaging service for sharing videoconference links for hearings. Instead, links will be shared through emails and text messages. Moving away from using a foreign social media company to share content may increase security, the move comes after the government issued new rules on social media platforms. These rules include identifying the “originator of a message that authorities consider to be anti-national and against the security and sovereignty of the country.”

Judicial appointments over the years

Author, advocate, and Cornell Law School professor Abhinav Chandrachud notes the accelerating rate of appointments at the Court. Between 1950 and 2020, 247 Justices were appointed at the Court. However, while 58 Justices were appointed in the 2010s and only 16 were appointed in the 1960s. The article introduces us to three unwritten rules of appointments at the Court: 1. Justices younger than 55 are not appointed; 2. Justices usually must be Chief Justices of a High Court; and 3. Justices must represent regional diversity in India.