Week of October 12, 2020

The Hathras affair, Halal bans dismissed, equal protections for transgender persons, 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.


Back in business

Although the Court will take a one-week breather for the Dussehra holidays from October 19,  the Court returned to full operational capacity from Monday (October 12). Approximately 30 Justices will simultaneously hear cases from 12 different benches. While in-person hearings remain elusive, the Court's output is expected to double.

Constitutionality challenges to new agriculture laws will continue

During a hearing for petitions challenging India's new agriculture laws, the Court asked FOR the government's response within four weeks. The government brought its all-star team to the hearing: Attorney General KK Venugopal, Solicitor General Tushar Mehta, and Additional Solicitor General KM Nataraj were present.  This was not lost on the Court, who remarked that bringing in all three constituted "overkill" when the petitioners did not even allege a cause of action.


Hathras-related cases reach the Court

The violent rape and death of a woman in Hathras, Uttar Pradesh, has received international attention for highlighting the deep caste and gender inequities that persist in communities across India. While the rape was registered at a local police station almost immediately, both Uttar Pradesh Police and state government initially denied that the rape ever happened. The victim is Dalit, while the alleged rapists are upper-caste Thakurs.

The Lucknow bench of the Allahabad High Court used its suo motu powers to begin proceedings after learning that the state cremated the victim without notifying her family.

The situation got the Court's attention on three separate occasions this week: 

  • The Kerala Union of Working Journalists approached the Court after the Uttar Pradesh police arrested a journalist while he was on his way to Hathras. The habeus corpus petition alleged unconstitutional detention. The Court adjourned the case for four weeks and asked the petitioners to approach the Allahabad High Court for bail.

  • On Tuesday (October 13), a petition asked the Court to transfer the case from Uttar Pradesh to a special court in New Delhi. The petitioners represent a coalition of "women, and queer persons who are activists, academics and journalists belonging to Dalit- Bahujan Adivasi-Vimukta (DBAV) communities."

  • On Wednesday (October 14), the Uttar Pradesh government informed the Court that the victim's family and potential witnesses were receiving police protection. The state government asked the Court to supervise the Central Bureau of Investigation (CBI) probe. The government's affidavit outlined additional security measures deployed, including women police officers protecting female members of the victim's family.


"Mischievous" Halal meat ban dismissed

On October 12, the Court dismissed a petition seeking a ban on "halal" meat. Halal is the Islamic method of animal slaughter that "involves killing through a cut to the jugular vein, carotid artery and windpipe." The petitioner cited the Prevention to Cruelty Animals Act, 1960, which does not permit unnecessary pain or suffering for animals as they're being handled. Calling the petition "mischievous and misconceived", the Court warned that a slippery slope could see calls for banning meat consumption altogether. 

Equal protection for transgender persons

The Court sought the government's reply on a petition seeking equal protection for sexual crimes under the Indian Penal Code (IPC) for transgender persons and called it a "good petition". The petitioner argued that the IPC of 1860 and recent amendments on sexual offenses did not address transgender persons. According to the petitioner, since the laws were drafted for men and women, individuals who do not identify as either cannot claim protection under the law. The petition asked the Court to direct the government to appropriately modify the petition. 

Minors access to social media

The Court asked the government to reply to a petition seeking to pass laws regulating social media access for minors. The petitioners also asked the Court to direct the government to prosecute individuals for sharing and selling videos documenting sexual abuse. Two law students filed the petition.


When there are thirty-four

The late United States Supreme Court Justice Ruth Bader Ginsburg once famously remarked that there would be enough women on the Supreme Court "when there [were] nine," referring to the number of Justices that sit on the United States Supreme Court. This article remembers that quote and laments the lack of female representation at India's highest Court. Only eight women have ever served on the Court, and only three out of the current 34 Justices are women. Only 8% of High Court judges are women. The article suggests that increasing female representation at High Courts and lower courts will begin a trend in the right direction. 

Colonial-era sedition laws continue to stifle free speech

This op-ed contends that freedom of speech in India is under siege, especially through colonial-era sedition laws that were endorsed by the Court in 1961. Back then, the Court articulated a distinction between "sedition" and "protest". According to the author, the government is blurring the distinction by associating individuals with inflammatory speech that they did not use.  The situation today is eerily similar to the Emergency from 1975-77, when constitutional rights were suspended by the Indira Gandhi government.