Week of June 29, 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.

HOUSEKEEPING

Back to business

Tushar Mehta began a renewed three-year term as the Solicitor General. Five Additional Solicitor Generals also began renewed terms. For the complete list of appointees, click here. Solicitor Generals represent the Indian government before the Supreme Court.

Indian Judiciary in numbers

In response to a criminal petition for bail, the Court noted the case volume pending before some of India’s most important High Courts. Here are some statistics the Court mentions:

The Court noted the challenge before the judicial system here. The long appeals process may negate the purpose of appeals: Protecting innocents from incarceration. The Court directed High Courts to gather data on appeals, including the number of convicts in jails waiting appeals. 

Read this article reporting that 3.7 million cases have been pending before India's courts for more than 10 years. 

CAN’T MISS THIS

A different kind of cancel culture

India has registered more than 500,000 COVID-19 cases and a slowdown appears nowhere in sight. Tablighi Jamaat is a Muslim missionary group that organized an event from March 13-15 and caused a spike in COVID-19 cases in New Delhi. The religious gathering sent national, state and local authorities scrambling to contact-trace the attendees. More than 25,000 people across 15 states were quarantined. Most attendees, including more than 1000 foreigners, had dispersed across the country. On April 7, nearly a third of India's 4410 cases were attributed to the large religious gathering in the nation's capital. Outbreaks in far off states Telangana and Tamil Nadu were attributed to the event.[1]

The Ministry of Home Affairs (MHA) responded by cancelling the visas of more than 3500 foreign nationals and banning re-entry for 10 years for alleged involvement in Tablighi Jamaat activities. Public debate criticizing the event, the public authorities' response, and the MHA action has raged across the country. We urge you to learn more about it. We're going to focus on the MHA action's constitutional challenge. 

On June 11, the foreigners petitioned the Court and argued that the MHA action violates their Constitutional rights rising under Article 21.[2] Invoking natural law, the petitioners also alleged that they were not afforded notice or an opportunity to be heard.[3]The petitioners maintain that they were only participating in a religious congregation and did not engage in Tablighi Jamaat's work such propagating religious ideology.[4] Therefore, the petitioners did not violate MHA guidelines prohibiting foreigners from engaging in Tablighi Jamaat activities.[5]  The petitioners note that MHA's own visa guidelines expressly establish that no restrictions against visiting religious gatherings.[6]

The Court on Monday (June 29) asked MHA to clarify a few things:

·       Current MHA stand on the visa status of these foreigners

·       Did MHA provide individuals with notice that their visas would be cancelled?

·       Why are the foreigners still in India if their visas are cancelled?

Responding to the Court, MHA noted 2679 visas were cancelled on a case-to-case basis[7], their deportations are pending because of ongoing criminal proceedings against them[8], and 1502 were notified of their cancellation via e-mail[9]. The remaining 1168 could not be notified because their emails were not with the Bureau of Immigration. 

While maintaining that the foreigners violated the conditions of their visas[10], MHA argued that visas are merely a privilege granted to foreigners[11] and that granting, denying or cancelling visas is a sovereign function of the Central government[12]. 

We will track this case as it develops. 

Caste discrimination in Title VII?

Let’s pause on covering the Indian Supreme Court for a minute and head stateside. The U.S. Supreme Court recently interpreted Title VII protections in the Civil Rights Act to include LGBT discrimination. Now, California is suing Cisco in federal court for caste-based discrimination.

The complaint, filed on behalf of a Dalit Cisco employee, alleges that the employee's superiors, who were "higher caste" Hindus, discriminated against the employee on the basis of caste. The complaint notes that South Asians comprise the majority of Cisco's workforce (and have been for decades)[13] and that only 1.5% of all Indian immigrants to the U.S. are Dalits.[14]

The complaint argues that caste discrimination comes under discrimination based on "religion, ancestry, national origin/ethnicity, and race/color".[15]

PETITIONS

· Power of the purse: SC Bar Clerk's Association petitions the Court to give members Rs. 15,000/month until the Court resumes normal functioning. The petitioners allege that most of their income comes from filing cases, a practice that has dried up in recent months. 

· Don't party like it's 1999: An activist filed an petition seeking alcohol prohibition across the country. Outlining the many health issues associated with alcohol consumption, the petition argues that alcohol is a "social bad" inconsistent with the Constitution. The access afforded to everyday citizens to approach the Court on any matter they wish to raise is certainly a social good. 

· Inequities in death penalty: A petition asks the Court to issue guidelines concerning legal remedies afforded to death penalty convicts and direct states to timely carry out death sentences. The petition compares the vast differences in administering the penalty for the 2012 Delhi rape case and for a murder of the "children of slum-dwellers."

STORIES WE’RE READING

· The Indian Supreme Court needs to provide the general public with video and audio access to hearings, this article argues. Interestingly, both the Attorney General and the Court agree with that sentiment.

· The Chairman of HDFC criticizes the Court for interfering with the RBI’s management of the financial sector.

· While Vice President Venkaiah Naidu has said that virtual Parliament is currently constitutionally impermissible, this article uses a provision from the Government of India Act, 1935 to argue otherwise. 

· With mandatory retirement at the age of 65, Supreme Court Justices are never too far away from hanging up their robes. That was partly why the Chief Justice of India could not resist sitting down on this limited edition 2020 Harley Davidson. The photo went viral on the internet and invited criticism.  

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[1] This Al Jazeera article is the paragraph's source. Read it to learn more about the event, the COVID-19 spread, and public backlash- including rhetoric equating the spread to terrorism.

[2] Page C of Synopsis of Petition.

[3] Page B of Synopsis of Petition. Our readers who have taken civil procedure in the United States know that notice and opportunity to be heard are due process rights guaranteed under the U.S. Constitution.

[4] Page E of Synopsis of Petition

[5] Page H of Synopsis of Petition

[6] Page G of Synopsis of Petition

[7] Page 8 of affidavit

[8] Page 11 of affidavit

[9] Page 12 of affidavit

[10] Page 8 of affidavit

[11] Page 3 of affidavit

[12] Page 2-3 of affidavit

[13] Page 4 of complaint

[14] Page 2 of complaint

[15] Page 12 of complaint