Week of January 11, 2021

The Court stays agriculture reforms, a petition challenges WhatsApp's new privacy policy, 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 fines Gujarat ₹25,000

Citing the "casual manner" with which the state filed an appeal, the Court fined Gujarat ₹25,000 for wasting "judicial time". The Court noted that state governments frequently violate the statutes of limitations set out for them. While technological difficulties could excuse prior delays, they do not anymore. The Court dismissed the case.

Former Chief Justice Gogoi appointed as sole arbitrator

Last week's ACW discussed an article seeking to examine post-retirement jobs for the Court's Justices. The article noted that former Chief Justice Gogoi's appointment as a Rajya Sabha MP raise eyebrows across the Indian legal industry. This week, the Court appointed Mr. Gogoi as the sole arbitrator in a contract dispute between two companies. The arbitration will be conducted by the Mumbai Centre for International Arbitration in New Delhi. 


The Court takes an unprecedented step by staying Agricultural reforms

In an effort to placate both the protesting farmers and the government, the Court stayed the implementation of the agriculture reforms and created an expert committee to negotiate between the farmers' bodies and the government. The reasons for doing so are certainly logical: Find an agreement that assuages both parties and simmer growing tensions. Interestingly, while the government opposed the stay, the farmers deemed the committee too "pro-government" and declared that they would not accept its recommendations.

The Court's order also cited public health concerns rising out of the mass gatherings, including the fierce cold that blankets Delhi during this time. The Court's order concluded with the hope that the stay lets the protest abate– although they expressly declared that they could not "stifle a peaceful protest".

Although both sides in the litigation are unhappy with the order, neutral parties have levied criticism against the Court as well. The Court's order has sparked a debate over whether the Court has the authority to stay government laws without determining their constitutionality. Rather than simply decide on the constitutionality of these laws, the Court may have exceeded its powers by playing peacemaker.  

This may be the first time the Court has stayed a law without a single hearing on its constitutionality. Although the Court's order noted previous laws that were stayed without hearing, the cited case (concerning Maratha reservations in Maharashtra) was at the Court on appeal from the Bombay High Court, which had already decided on the merits. Notably, the Court has previously refused to stay government legislation on Aadhaar and electoral bonds.


Modify WhatsApp policy

WhatsApp's new privacy policy mandated that user data will be shared with Facebook, the messaging service's parent company. The ensuing criticism and alleged loss of tens of millions of users to competitors has prompted WhatsApp to delay implementing this policy by three months. Like everything else in India that enters the public discourse, a petition seeks the Court's intervention on the matter. Particularly, the petitioner asks the Court to direct the government to implement stronger privacy protections– arguing that the WhatsApp policy violates fundamental rights. 

Make adultery punishable in the armed forces

The government is seeking the Court's permission to making adultery a punishable offence for India's armed forces. Back in September 2018, the Court had held that criminalizing adultery is an unconstitutional. Adultery was only criminalized for men, but widely considered a sexist policy against women. The government's proposed legislation for the armed forces has invited similar criticism. 

STORIES WE'RE READING: Letters edition

Young lawyers losing out to established lawyers

letter to the Chief Justice argues that virtual hearings have benefited senior lawyers at the expense of younger lawyers. Virtual hearings have enabled more established lawyers in Delhi to argue cases across the country. Younger lawyers part of the Court's Bar are unable to do the same. The letter urges the Court to resume physical hearings. 

More than 500 lawyers sign letter asking to resume physical hearings

Calling the virtual hearing system a failure, more than 500 lawyers want the Court to resume physical hearings. Their letter notes that the system has denied justice to many, such as pending bail applications. Moreover, virtual hearings are riddled with connectivity issues and mismanagement by the Court's Registry. On Tuesday (January 12), the Chief Justice expressed his opposition to resuming physical hearings, citing the need to prevent spread of COVID-19. The Solicitor General agreed with the Court's assessment, arguing that virtual hearings had not denied justice to litigants.