Week of November 30, 2020

The GST upheld on lotteries and gambling, mask mandates go too far, 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.


CCTVs in law enforcement premises

In Paramvir Singh Saini v. Baljit Singh, the Court directed the government to set up CCTV cameras in the offices of various law enforcement agencies, including the Central Bureau of Investigation, the National Investigation Agency, and the Enforcement Directorate.[1] The Court specified that these cameras needed to be placed wherever interrogations took place.[2] The Court noted that it had given the same directions in 2018 and nothing had been done since.[3]

To mask or not to mask?

There is a general scientific consensus that mask-wearing prevents the spread of COVID-19. Government mandated mask-wearing has become common across India, and the world. However, the Court this week felt that the Gujarat High Court may have gone too far. Earlier in December, the High Court issued directions where violators of the government's mask mandate would have to perform non-medical duties at COVID-19 centres. Calling the punishment disproportionate, the Court stayed the High Court's order. The Court still asked both the Gujarat state and the Central governments to "vigorously implement" mask mandates.


The Court upholds the Goods and Services Tax on lotteries

A petitioner challenged regulating lotteries as a "good" under the Goods and Services Act 2017 ("GST") in Skill Lotto Solutions Pvt. Ltd. V. Union of India. Conceding a rare deferral to government decision-making, the Court reasoned that the judiciary does not have a serious role in assessing tax policy. 

The petitioner, an authorized dealer of lotteries in Punjab, argued that lotteries could not be goods and were merely 'actionable items'. He contended that lotteries were just pieces of paper and devoid of any value. The GST on lotteries was discriminatory because it levied 12% tax on lotteries sold from the same state, and 28% of lotteries sold from different states.

The Court noted that Parliament included lotteries, gambling, and betting as actionable items subject to taxation– a policy that had existed for decades. As Parliament did not include other actionable items, then the decision to include the other three was deliberate and reasoned. 


"Love Jihad" laws challenged

Amidst India's biggest health and economic crises since Independence, the Uttar Pradesh government passed a law banning "dishonest" religious conversions, with violators facing up to 10 years behind bars. Petitions challenging the law's constitutionality claim that the ordinance violates the rights to privacy and freedom of religion. Particularly, the petition argues that the law could be used to falsely implicate anyone.

Farmers getting in the way

Punjabi farmers are protesting the government's market-oriented agriculture reforms at Delhi's borders. A petition seeks the Court's intervention in breaking up the protest. The petitioner alleges that the protestors are blocking essential supplies to the city and the protest itself may be a breeding ground for COVID-19.  According to the petitioner, the protestors are not occupying the area set aside by security personnel and are instead blocking the city's borders for commuters.


The Court faces a crisis of legitimacy

While praising the Court's historical role in preserving democratic principles through legal innovations, this article criticizes the Court for failing to check the Modi government's majoritarian tendencies. Interestingly, the article runs through some doctrines introduced by the Court: Basic structure, constitutional morality, manifest arbitrariness, and relaxing procedural norms surrounding public interest litigation. Nevertheless, the author laments that since at least 2017, the Court has endorsed government overreach.

Attorney General: Increase female representation in the judiciary

The Attorney General told the Court on Wednesday that more women should sit on benches across the country. He noted that only 80 out of 1,113 judges across the country were women. Out of these 80, only two sit at the Court. According to the Attorney General, increasing female representation will add empathy and improved decision-making to cases surrounding sexual violence. 

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[1] Page 10 of opinion[2]Id[3] Page 11 of opinion