Week of March 15, 2021

The Court ends compromises in gender-violence cases, questions the reservation system, 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.

HOUSEKEEPING

Court takes Delhi High Court’s suo motu vaccination case

The Delhi High Court used its suo motu powers to ask vaccine producers Serum Institute of India and Bharat Biotech about their capacity to manufacture vaccines at different periodic levels. Some of the questions included the amount of underutilized capacity at manufacturing facilities, ability to scale up production and transport the vaccine. The companies’ responded by asking to have the case transferred to the Court, as a similar petition was at the Bombay High Court and vaccines were an “all-India” issue. The Solicitor General agreed with the companies and this week, the Court transferred the case to itself. 

On reservations, the Court asks: “How many generations will [this] continue?”

In a hearing on the Maratha reservation case, the Court asked how many generations the practice of reserving positions in the government and educational institutions will continue for. Mukul Rohatgi, the attorney appearing for the state of Maharashtra told the Court that the Court’s 1993 decision to cap reservation at 50% needs re-examination (as we covered last week). While the Court remained skeptical, Mr. Rohatgi argued that the government’s decision to include 10% reservation for “economically backward” people suggested that reservations were not a policy that the country was ready to move past from. 

ACW March 8: re-examine reservations

CAN’T MISS THIS

No compromises in gender-related crimes

Weeks after the Chief Justice’s remarks in a rape case that brought widespread condemnation, the Court issued an order this week asking the judiciary to refrain from suggesting compromises in gender related crimes. Justice Bhat’s order specifically asked judges from suggesting marriage or any form of mediation. 

Justice Bhat warned that victims seeking redress from courts must believe in the impartiality of the judiciary and directed courts to avoid reinforcing gender stereotypes that perceive men as strong and women “in need” of protection. 

The remarks came after the Madhya Pradesh High Court asked a victim to tie a rakhi on the perpetrator as a condition for his bail. The Court overturned the High Court’s order and asked courts to strictly follow the criminal procedure code. The Court noted that asking a victim to tie a rakhi turned an accused “molester into a brother by judicial mandate”. 

The Court also suggested gender sensitivity training for judges to avoid patriarchal attitudes seeping into judgments. 

PETITIONS

Petition seeking to stop states from disagreeing with the central government dismissed

State assemblies can create resolutions that disagree with government policy. This week, the Court dismissed a petition that sought to ban states from expressing their displeasure with central government legislation such as the Citizenship Amendment Act. Saying it “didn’t want to create more problems than solving”, the Court said it was not aware of any precedent on the issue and asked the petitioner to find such precedent.  The petitioner argued that by commenting on central legislation, States were exceeding their jurisdiction. The Chief Justice was skeptical and wondered why the state could not pass an opinion expressing mere disagreement. Constitutional challenges to the CAA are still pending before the Court. 

Court to hear petition that seeks stay on sale of electoral bonds

Electoral bonds allow large donors such as corporations to submit 100% tax-exempt political donations anonymously. Given that special interests, including foreigners, may use electoral bonds to corrupt the democratic process, electoral bonds have invited challenges at the Court. Most electoral bond donations have gone to the “ruling party”. As the Court considers the constitutionality of electoral bonds, it will also consider a petition to stop issuance of new electoral bonds until the constitutional question is decided. A petitioner is seeking to stop such issuance ahead of elections in West Bengal, Tamil Nadu, Kerala, Assam, and a Union Territory. Another petition challenging electoral bonds has been pending before the Court since 2017. 

STORIES WE’RE READING

Diversify the Court’s bench

There are five vacancies at the Court with more retirements due later this year. This article asks the Court to use this opportunity to further gender diversity and increase female representation at the Court. The author notes that Justice Chandrachud recently expressed concern that there is only one female Justice at the Court these days. The article illustrates the appointment system at the Court, with appointment power resting in the hands of only five senior Justices at the Court. 

The Court’s Bar Association shouldn’t oppose hybrid hearings

Now that the Court has introduced hybrid hearings, this article criticizes the Court’s Bar Association (SCBA) for opposing hybrid hearings. The SCBA opposes the Court’s protocol on hybrid hearings because the Court’s lawyers are losing income through loss of filing fees at the Court. However, the author argues that the loss to the Court’s lawyers is outweighed by the loss to injured citizens. The author cites the exploding backlog of pending cases in India’s judiciary, which increased in one year from 5.4 million to 7.5 million. Many lawyers and litigants across the country would prefer that the Court continue virtual hearings.