Week of June 22, 2020

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. Subscribe here.

Petitions 

·       The State of Jharkhand challenged the Union Government's decision to virtually auction mining rights for coal found in the state. (Aside from policy reasons, the petition argues that the action violates Schedule V of the Constitution and that the applicable law concerning minerals lapsed in May 2020)

·       District Judge petition challenging show cause notices issued against him for sexual harassment in the workplace dismissed(The petitioner alleged the inquiring body did not follow the law and violated principles of natural justice)

·       Perhaps in light of India-China tensions, petition against Rahul and Sonia Gandhi seeks investigation into a 2008 Congress-CPC agreement (the petition interestingly argues that the investigation is needed to protect fundamental rights) 

·       Court stays investigation against journalists after they petition the court (the petitioners allege that the West Bengal police violated freedom of the press guaranteed under Article 19(1)(a) of the Constitution)

·       Court directs Tihar Jail to provide summer clothing and essentials to detained Jammu and Kashmir Bar Association President (A petition before the Court alleges that the detention since August 2019 violates applicable law)

Can't Miss This 

Defendants' liberties still protected during COVID lockdown

In a decision protecting individual liberty, the Court rejected the Madras High Court's interpretation equating the lockdown to an Emergency proclamation that deprived a defendant's right to default bail.  

India's Code of Criminal Procedure allows defendants to receive default bail if a charge sheet is not filed against them after they have spent 60 days in custody.[1] The State argued that the police could not file a charge sheet because of difficulties associated with the country's strict lockdown in battling COVID-19.[2]

The Court clarified that its March 23 order pausing litigation across the country was to protect litigants from having their proceedings and remedies "time barred" by the courts.[3] The order did not extend to include the time period through which police must file charge sheets against defendants[4] or curtail any provision in the law designed to protect personal liberty.[5]

While holding that the lockdown restrictions cannot Emergency proclamation[6], the Court also reinforced existing precedent that the right to liberty under Article 21 of the Constitution cannot be suspended even in an Emergency.[7]

COVID-19: To meddle or not to meddle?

On June 20th, the Court issued a slew of directions to States as they manage the COVID-19 crisis. Here are some of them:

1.     Create committees comprising health experts that would inspect hospitals in the State. 

2.     The State's Chief Secretary should implement this and ensure the committees begin work within seven days. 

3.     Install CCTV cameras in COVID hospitals

4.     Permit one attendant with a patient in the hospital, and

5.     Create a help-desk accessible physically and by telephone.

However, the Court declined to interfere in government policy when a petitioner challenged the Kerala government's rule requiring that all non-resident Indians returning from the Middle East present a certificate declaring that they do not have COVID-19. 

Non-resident Indians or NRIs, are still Indian citizens. They just live abroad

School's out?

Lockdowns around the world have affected education. India is no exception. The uncertainty surrounding exams and education has made its way to the Court.

On Thursday, the government informed the Court that this year's CBSE[8] Class 10 (Read: Grade 10) and 12 exams are cancelled for now. The Class 12 exams are the primary determinant for admission into most Indian universities. The future of the exams is unclear. The CBSE exams matter came before the Court in a plea challenging the education body's order to hold exams this July. The petition argued that holding the exams in July would lead to inequitable administration for students in different states, containment zones, and even different countries. 

A similar petition was filed against India's Chartered Accountancy (CA) exams. The exam's administrators have given test-takers the ability to opt-out from the exam. The petition argues that the opt-out provision will also result in inequitable administration for the test-takers, violating the Right to Equality in Article 14 of the Constitution. 

What we're reading

COVID-19 and the Court's digital transformation (Add the Court's digital transformation to the trends that this pandemic may accelerate)

Protecting traditional Indian knowledge from patents (Showing how intellectual property rights can prevent traditional Indian knowledge from commercial misappropriation)

Parallels between the Supreme Court in 1775 and today? (The authors draw an eerie historical comparison between a Company-era Supreme Court at Fort William and the Court today)

Ramdev's Patanajali tried to sell an unverified Ayurvedic COVID-19 cure (Spoiler: they immediately ran into trouble with Central and State authorities)

Who will represent the Delhi Police in Court? (the Central and Delhi governments are fighting over who has authority to appoint counsel, paralyzing a case against the Police on the Delhi riots)

[1] Page 6 of Judgment

[2] Page 4 of Judgment

[3] Page 16 of Judgment

[4] Page 17 of Judgment

[5] Page 18 of Judgment

[6] Page 26 of Judgment[

7] Pages 19-26 of Judgment

[8] Central Board of Secondary Education