Week of July 6, 2020
Arnab Goswami, fake encounters, technical hiccups and more.
Apex Court Weekly is a weekly round-up of judgments, petitions, orders and notices as they develop at the Indian Supreme Court. We will also occasionally cover High Courts. We will 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. Pranjal Jain assisted with the research.
HOUSEKEEPING
Enforcing SC judgments
The Court gave the Centre one month to implement the Court's decision on February 17, 2020 that advanced women's rights in the Indian Armed Forces. The judgment directed the Army to permanently commission female Indian officers. The judgment offers many instances where the work of female officers is similar to that of male officers.
The suo motu solution
The Court is not new to proactive judicial intervention in public affairs. Suo motu powers enable the Court to begin proceedings on its own. On Monday (July 7), the Court assumed those powers to direct states to report on COVID-19 affecting children's shelter homes in those states. The Court used suo motu again on Wednesday. Read this law review article to learn more about the impact of suo motu powers in India. Reported suo motu usage has spiked since 2010.[1]
Real problems at the Virtual Court
Few expected judiciaries around the world to function without hiccups as they moved to virtual hearings. The Court certainly has not been spared. Faulty microphones at Justice Mishra's residence held back hearings for an hour. This wasn't the Court's first technical snafu and hardly the last.
In addition to the technical hiccups, lawyers are committing fashion faux pas. During Friday's hearings, the Chief Justice reprimanded an attorney for wearing a blue-checkered tie.
CAN’T MISS THIS
The Nation should know
The Court did not take kindly to allegations that the judiciary prioritizes certain cases over others for the wrong reasons.
In Arnab Goswami v. Union of India, the infamous news anchor alleged that FIRs filed against him were politically motivated. Without commenting on the merits of the FIR,[2] the Court declined to interfere with the FIR.[3]
The Court's swift decision in the Arnab Goswami case invited a petition against the Court's registry that sought directions against giving preferential treatment to petitions filed by influential lawyers. Ironically, the Court swiftly dismissed the plea and instituted a Rs. 100 fine on the petitioner.[4]
The Court noted three crucial points:
The petitioner's previous three petitions were riddled with defects.[5] The errors include impleading the wrong parties[6]
The Registry has been working with limited capacity during the lockdown[7]
The Arnab Goswami case received urgent attention because it concerned "liberty and freedom of media".[8]
The Court used the judgment to strongly endorse the work the Court's staff has performed in this difficult time.[9] We recommend you read the scathing opinion.
Meanwhile, journalist Amish Devgn has filed a similar petition as Arnab Goswami once did to quash FIRs. Multiple FIRs were filed against Mr. Devgn for allegedly using hate speech on TV. The Court has paused the FIR investigations as the case continues.
Who cares?
With cases and deaths still rising, the economy battered, some may think where relief funds are placed is trivial. In India, the PM CARES fund and the National Disaster Relief Fund (NDRF) are two "Funds" that can provide financial relief. A petition seeks transfer of money from the CARES fund to the NDRF and attributing any donations to the NDRF. Only the NDRF is established by legislation in the Disaster Management Act, 2005. According to the petition, the distinction allows the PM CARES fund to escape scrutiny from the government's auditors and the RTI.[10]
The Central Government's counter affidavit argues that the Act grants the government broad latitude in managing national disasters, including health emergencies.[11] The document delineates the many measures undertaken by the Central and State governments under this broad interpretation.[12] Crucially, the Centre argues that mere existence of a statutory fund (NDRF) does not prohibit creation of a new fund that elicits voluntary donations.[13]
The Centre urged the Court to dismiss the case.[14]
PETITIONS
Health experts
Although India's doctors are preoccupied with a global pandemic, there is no shortage of healthcare experts at the Court. Last week we brought up a petition seeking alcohol prohibition across India. The petition used alcohol's deleterious effects to justify prohibition. This week, a petition seeks a national yoga policy and highlights yoga's good effects on our health.
Bail and social media
Banning social media has been trending in India lately,[15] irony aside. Now, the Court is will hear an appeal and consider whether banning social media use can be a condition for bail. The petitioner was jailed under India's infamous sedition laws.
Fake encounters, real predictions
Vikas Dubey's death has received widespread coverage in Indian media. Some have questioned the police's version of the events. Anticipating Mr. Dubey's death in the hands of Uttar Pradesh police, a petition was filed before the Court the day before his death and requested security for Mr. Dubey.[16]Interestingly, the document warned that Mr. Dubey may be killed in an 'encounter' once in custody.[17]
STORIES WE’RE READING
Right to privacy or right to equality?
This article compares the LGBT jurisprudence of India and the United States. The article notes the differences in both Courts' reasoning in decisions decriminalizing homosexuality, and the resulting consequences on the continuing fight for LGBT rights.
On the road again
Last week we covered the Chief Justice's itch to sit on a limited-edition Harley Davidson. This story profiles another keen motorist and one of India's original Justices: Vivian Bose. Justice Bose was a larger than life figure who once road-tripped from Nagpur to London in 1933 and again in reverse after retirement in 1956. His other exploits included trekking in the Himalayas, photography and even dining with animals.
No prosecution without representation
The National Level Committee for Reforms in Criminal Law does not include women, religious minorities, or any marginalized communities. Women lawyers at the Court and some High Courts have expressed their concerns in a letter to the Committee. The letter also points out that the Committee features only one practicing advocate.
[1] Page 75 of article
[2] Page 54 of judgment
[3] Page 52 of judgment
[4] Point 22 of judgment
[5] Points 8-11 of judgment
[6] Point 16 of judgment
[7] Point 13 of judgment
[8] Point 12 of judgment
[9] Points 17-20 of judgment
[10] Right to Information Act
[11] Pages 5-6 of document
[12] If you're bored and are interested in seeing how state and central governments cooperate, reading the counter affidavit may be a good read.
[13] Page 35 of document
[14] Page 36 of document
[15] See https://indianexpress.com/article/technology/social/indian-army-delete-89-apps-6497307/ and https://techcrunch.com/2020/06/29/india-bans-tiktok-dozens-of-other-chinese-apps/
[16] Page 19 of petition
[17] Page E-1 of petition