Week of November 16, 2020

Election challenges abound, the CBI needs state consent, and more!

Apex Court Weekly

ACW 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.


Justice Lalit recuses himself

Justice U.U. Lalit recused himself in a case against Andhra Pradesh Chief Minister Y. S. Jaganmohan Reddy. The petition challenged the Chief Minister's letter to the Chief Justice alleging that Justice N. V. Ramana was improperly influencing the Andhra Pradesh High Court.  Announcing his recusal, Justice Lalit said ". . . As a lawyer, I had represented one of the parties. I will pass an order for it to be listed before a Bench without me". 

Challenging the Prime Minister's election

Much of the world's attention these days is on United States President Donald Trump's increasingly futile efforts to challenge the validity of Joe Biden's election as his successor. Perhaps an equally futile effort is brewing at the Court, with a petition challenging Prime Minister Modi's election as the MP from Varanasi.  The petitioner is a former Border Security Force officer whose nomination as a candidate for election in Varanasi was rejected by local election officers. During arguments concerning whether the petitioner received enough notice to present additional documents, the Court noted the need to expedite the matter given its importance and reserved judgment. 

Sudarshan TV show is communal

We've previously discussed the Sudarshan TV show Bindas Bol that ended up before the Court because it allegedly fermented communal sentiment. The government's latest affidavit shows that it agrees with the petitioner's assertion: The show did violate the Programme Code and was likely offensive. The Court continued its order staying the show's telecast, and has listed the matter for rehearing in a few weeks. 


CBI Needs State Approval for Jurisdiction

Two weeks ago we discussed that States are withdrawing their general consent for the CBI, and noted that that the CBI has few legal recourses. This week, the Court decided a case that is likely to affect this new tug-of-war between the states and the central government. In M/S Fertico Marketing v. Central Bureau of Investigation and Anr. Etc., the Court held that the CBI requires a state's permission before commencing investigations within the state. 

Sections 5 & 6 of the Delhi Special Police Establishment (DSPE) Act granted the central government authority to empower the CBI to operate within a state, but not without requiring that particular state's consent. [page 13] The Court's opinion notes that such a provision is consistent with the basic federal structure of the Constitution. [Id] 

The case revolved around a CBI investigation into Fertico Marketing and corruption by state officials. While the Uttar Pradesh government had granted the CBI consent to investigate offences under the Prevention of Corruption Act 1988, the government had included an exception that required state consent if an investigation involved state officials. [page 14]

In deciding whether the CBI had jurisdiction, the Court affirmed the Allahabad High Court's decision. [page 21] While the CBI did need the Uttar Pradesh government's consent before proceeding, the Court held that the state had indeed given consent to the CBI.


Epidemic Act during the Pandemic

An ill-time petition challenged the constitutionality of the Epidemic Act before the Court. Rather than decide on the matter, the Court offered the petitioner a basic civil procedure lesson instead: Approach a lower court before coming to us. While the Court enjoys original jurisdiction, India's High Courts enjoy constitutional powers and can strike down laws they deem to be unconstitutional. The petitioner was challenging the COVID-19 policy of the Maharashtra government. Perhaps to save the petitioner from any more obvious jurisdictional issues, the Court suggested that they approach the Bombay High Court. 

Another election challenge

The Court this week issued notice on a petition challenging External Affairs Minister S Jaishankar's Rajya Sabha election. The minister was elected through by-polls in Gujarat in 2019.  Congress then challenged the election on grounds that the Election Commission violated the law by issuing two separate notifications and therefore, creating separate elections for the two by-polls. The Court has indicated that it will use this case to authoritatively decide whether statutes and the Constitution enable the Election Commission powers to issue notifications for by-polls separately. 

Petition voiding electors with criminal charges dismissed

As you may have noticed by now, litigation challenging the validity of elections is not limited to the United States. A petition asked the Court to void elections of those facing serious criminal charges. The Court dismissed the petition, citing a 2018 decision where a constitutional bench decried the criminalization of politics but conceded that lawmaking surrounding the issue must be left to Parliament. 


No more legalese

The best legal writing is straightforward and precise. If you have ever read one of the Court's opinions, you'll know that the Court's Justices disagree with our assertion. Petitions, orders, and opinions at the Court are notoriously verbose. Subash Vijayran, a practicing lawyer at the Court, feels similarly. His petition before the Court requests adopting plain English in statute drafting, law school curricula, and even in the Court's opinions. This article's author agrees and suggests that the Court adopt George Orwell's six principles of writing. Notably, he shares a paragraph from a Himachal Pradesh High Court that will make you dizzy.

One year with Chief Justice Bobde 

Chief Justice Bobde completed one year of his two-year term as Chief Justice on November 18. This article examines his tenure and discusses pending constitutional matters. Naturally, the constitutionality of the Citizenship Amendment Act and the government's unilateral abrogation of Article 370 are the first to mind. However, the article criticizes the Court's indecision over the constitutionality of electoral bonds created by the Finance Act, 2017. Electoral bonds allow a political party to elicit donations anonymously. The article notes that the Election Commission of India has also filed a counter-affidavit with the Court expressing its reservations with electoral bonds. 

Uneven justice

The Indian legal fraternity has criticized the judiciary's quick handling of Arnab Goswami's bail. The issue is not that he was granted bail, but the speed with which the judiciary's procedural powers were deployed for Mr. Goswami. This article asks for transparency from the Court's Registry in how they sort cases. The author also asks India's lower courts to expedite bail for others languishing in prison, rather than differentiate between equal citizens.