Week of March 8, 2021

The Court may review 50% quotas, considers constitutionality of Places of Worship Act, 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

The Court separates State Election Commissioners from state governments

The Goa government appointed their law secretary, a state government employee, as their state election commissioner (SEC). This week, the Court terminated the appointment, calling it a “mockery of constitutional mandate” under article 243K of the Constitution. The Court clarified that SECs must be “independent persons” who are not employed by the state and central governments. The Court also used its Article 142 powers to notify all other states and territories in the country that any other SECs holding similar conflicting positions must also step down. 

The Court: Inform pregnant women of their legal rights

Responding to a petition that asked to set up medical boards in each state to determine whether a woman is eligible for a vaccine, the Court noted that a woman must be notified of her rights if she is raped and becomes pregnant. The Court’s notice come a week after the Chief Justice’s remarks in a rape case created much controversy. 

CAN’T MISS THIS

The Court considers revisiting 50% limit on quotas

In Indira Sawhney & Ors. v. Union of India in 1992, the Court capped reservations in government jobs and education in the country to 50% of available positions. Recently, states like Maharashtra and Tamil Nadu have extended reservations beyond the 50% threshold. Tamil Nadu extends reservations to as far as 69% in government jobs and education. 

The Court is now considering reviewing the Indira Sawhney judgment with a constitutional bench comprising 11 Justices. Only five cases have ever been decided by 11 Justices. Lawyers representing Tamil Nadu and Kerala asked the Court to temporarily adjourn the case, citing upcoming elections and the political impact the case may have. The Court dismissed those concerns.

The issue is before the Court amidst a backdrop of cases challenging state reservation laws, including the Maratha reservation case from Maharashtra. The Court has asked States to clarify their position on the 50% reservation issue. 

The Court takes up challenge on Places of Worship Act 1991

The Places of Worship Act 1991 barred litigation that sought to change a place of religious worship from as it existed on August 15, 1947. You might be able to think of a notable exception to the Act: the Babri Masjid case. 

A petition challenged the Act’s constitutionality, and now the Court has asked for the government’s reply. The petition argues that August 15, 1947 represents an arbitrary date that prevents challenges to places of worship or pilgrimage that were changed before the date. The petition notes that the Act discriminates against Hindus, Jains, Buddhists, and Sikhs as they cannot approach the Court for places of worship that illegally encroached upon.  

PETITIONS

Free Rohingya refugees in Jammu

A petition seeks to release Rohingya refugees detained in Jammu and prevent their deportation. The petition also asks the United Nations High Commissioner for Refugees (UNHCR) to grant them refugee cards. The government recently said that the Rohingya refugees would not be able to obtain citizenship. Media outlets have reported that some refugee family members have disappeared after interacting with the Jammu and Kashmir administration. Although India does not distinguish between illegal immigrants and refugees, international law prohibits countries from sending refugees back to a place where they may be in danger. Rohingyas are a persecuted Muslim minority in Myanmar. 

Petition seeks fresh elections if None-of-the-Above option wins an election

Indian elections allow voters to choose “None-of-the-Above”, or NOTA, on their ballots. A petition is asking to have a new election if the NOTA option is the highest vote getter in any election. The petition also seeks to ban candidates from running in the re-election should NOTA win. NOTA has won the most votes in the past, which currently results in the second highest vote getter becoming the elected representative. The Court expressed concern with possible vacancies in legislatures if NOTA nullifies elections. 

 STORIES WE’RE READING

CJI: The Court “has the highest respect for womanhood”

A week after the Chief Justice’s remarks during a hearing in a rape case invite widespread criticism, the Chief Justice said that the Court has the “highest respect for womanhood”. Ironically, the Chief Justice clarified his stance on International Women’s Day. The Chief Justice noted that his comments were “completely misquoted”. If the Court and Chief Justice indeed feel so, they can institute a simple solution: Record hearings. 

Justice Indu Malhotra retires

The 7th female Justice at the Court retires this week. Justice Malhotra was the first female Justice appointed directly from the bar, after spending more than three decades as a practicing lawyer at the Court. This article chronicles her career and discusses some of her notable opinions, including those in Navtej Singh Johar v. Union of India (decriminalizing homosexual sex), Josephine Shine v. Union of India (decriminalizing adultery), and Indian Lawyers Association v. State of Kerala (Sabarimala temple entry). After Justice Malhotra’s retirement, Justice Indira Banerjee will be the only female Justice at the Court.