Week of October 19, 2020 (vacation edition)

The Court goes on vacation, but we do not!

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.

While the Court was on vacation this week, ACW was not. 

INTERVIEW

Sital Kalantry is professor at Cornell Law School where she teaches contract law, immigration and human rights. She writes in the field of comparative law, business and human rights, and the functioning of judicial institutions. We interviewed her on her research on the Court.

With William Hubbard and Aparna Chandra, you co-authored an empirical overview of the Court. Can you tell us a bit about that?

We coded over eighty variables in nearly 5,000 Indian Supreme Court judgments from 2010 to 2014. In our first piece drawing from this research, we examined whether the Indian Supreme Court, often thought of as a court that privileges cases from poor and marginalized groups, continues to be a “people’s court” in practice. In “The Supreme Court of India: A People’s Court?”, published in the Indian Law Review, we found that the Court gives priority to criminal defendants and civil litigants against the government.  (Follow this link for a more comprehensive look at the empirical findings.)

In India, diversity comprises diversity in language, religion, caste, gender, and even regions. You’ve written about diversity at the Court. How has the judiciary fared with diversity over the years?

Courts that reflect the diversity of its populace make more informed decisions and have greater legitimacy.  We coded the personal characteristics of every judge appointed to the Supreme Court to understand whether the judicial appointments procedure impacts the diversity of the people who are appointed.  Prior to 1993, Justices were appointed by the Executive. But after that time, the Chief Justice and four other senior most Justices of the Court began to appoint other Justices.  In 2015, the Court rejected an amendment to the Constitution that would have created a commission that was authorized to appoint Justices.

In From Executive Appointment to the Collegium System: The Impact on Diversity in the Indian Supreme Court, published in Verfassung und Recht in Übersee, we found that under both the executive-led system and judge-led system, the body responsible for judicial appointments prioritized regional and religious diversity, but not gender and caste diversity.  Only six percent of Justices on the Court have ever been women and less than five percent have been from marginalized castes. We discovered that the great majority of Justices appointed to the Supreme Court are former Chief Justices of high courts. However, the Court fails to prioritize the appointment of female Chief Justices of high courts even though there is a dire need to increase gender diversity. We discovered that of the female Chief Justices of high courts that are appointed to the Supreme Court, they are more likely than male chief justices that are appointed to the Supreme Court to have been Chief Justice of two different high courts. This suggests that women have to work harder for the same jobs. 

The United States is in the middle of a contentious nomination process for a new Justice at the Supreme Court. The process is partly contested because any nominee, if confirmed, will receive a lifetime appointment on the bench. You’ve studied tenure length in India. What did you identify?

Indian Justices must retire when they are sixty-five years of age. In The Indian Supreme Court in Crisis (under advance contract with Penguin Random House) (co-authors William Hubbard and Aparna Chandra), I have written a chapter that examines whether this mandatory retirement age impacts the behavior of Justices.  The average age of appointment of a Justices prior to the start of the Collegium system was 58.5 and rose to 59.9 under the Collegium. Because this age has increased but the mandatory retirement age at 65 has not changed, Justices spend lesser time on the Court. 

Chief Justice Chandrachud was the longest serving Chief Justice at 7.3 years. Chief Justice Singh was the shortest at just three weeks. The tenure of Chief Justices has decreased over time. The average tenure (measured from 1950-2018) of the Chief Justice is 18 months.  The average was 20 months before 1993 but has shortened to 12 months since. 

The short tenure of Justices and Chief Justices creates institutional instability.  The retirement age should be changed or Justices should have term limits to ensure that they remain on the bench for a longer period of time.  

BEST OF Apex Court Weekly

This “best-of” section was compiled using feedback from our readers. As always, please share your thoughts in the comments section or email us at indialawcenter@cornell.edu.

From week of July 13: National Treasure: Apex Court edition

ACW week of July 13

Even Nick Cage could have never imagined a treasure like the one that lies below the Padmanabhanaswamy Temple ("the Temple") in Kerala. Five of the treasure's six vaults were opened in 2011.The treasure's estimated value is more than $20 billion. We think it's priceless. 

Some of the treasure's valuables include:

  • Bags (some weighing nearly 800 kg. or 1760 lb.) full of gold coins from the Napoleonic, Roman, British and medieval eras

  • A 4 X 3 ft solid gold idol of Lord Vishnu studded with diamonds and precious stones

  • A 28-foot gold throne

  • A gold ceremonious attire weighing nearly 30 kg (66 pounds).

Keep in mind that one vault, inconspicuously marked "Vault B", remains deliberately unopened. Read these articles (12) to get an insight into the legend of the mysterious Vault B, which sounds a bit like a real-life Chamber of Secrets. 

All this is surely making you wonder: Who does this centuries-old treasure belong to? The Court answered part of that question on Monday (July 14). 

The central question before the Court was whether the Kerala government or the former Travancore royal family, or specifically, the "Ruler of Travancore",would manage the temple and its treasures in their capacity as "shebaits". Shebaits are trustees of a religious idol or deity.The shebait manages the property for the idol.Here, the property under question was the Temple. 

The Court granted shebait rights to the erstwhile royal family.

Historically, the Rulers of Travancore exclusively managed the Temple and did so continuously until 1949.After Independence, the Maharajas of Travancore and Cochin signed a covenant creating the United State of Travancore and Cochin (modern day Kerala).While the covenant said no person or successor could be recognized as Ruler of Travancore,the Court found that the Ruler's shebait authority was not vested under his official capacity as the Ruler. This effectively allowed the Temple's shebait rights to pass through customary laws of succession, and gave the Temple's shebait rights to the Ruler's descendants.

The Court noted that the Temple's beneficiaries were still the worshippers, and that the family simply remained the property's managers. The Court ordered the creation of an advisory committee to transparently manage the Temple's administration. The final pages of the opinion include multiple directions that mandate fair administration, including a provision disallowing the royal family from receiving any renumeration as Trustees.

In case this is all boring and you're still thinking about Vault B: The Court declined to order opening the vault.

From week of August 10: A step forward for women’s property rights

ACW week of August 10

On August 11, in Vineet Sharma v. Rakesh Sharma & Ors., the Court held that Hindu women have an equal right to property as Hindu men. The Hindu Succession (Amendment) Act, 2005 had already expressly given Hindu women equal inheritance rights. There still remained a question before the Court: Did the father have to be alive when the Act was signed for it to apply to women? The Court held that it was not necessary, and equal inheritance rights applied to all Hindu women. 

Applying the law retrospectively was a question that had come up before many courts across the country since the 2005 Act. Even different benches of the Court had taken opposing views on the matter. As each of those case was decided by a two-Justice bench, this decision used a three-Justice bench to finally settle the question. 

Even though the rights could only be claimed after the Act was passed, the Court noted that a woman's property rights were conferred at birth and therefore could be retroactively applied. India has different laws depending on an individual's religion. 

This holding was limited to the rights of Hindu women only, and did not include Muslims, Christians, Sikhs and other religious minorities. The holding was also limited to cases where laws of intestate succession govern inheritance, but not personal wills. 

From week of September 14: The Show Can’t Go On

ACW week of September 14

On September 16, the Court stayed a show, Bindas Bol, from being shown on air. Bindas Bol is an "investigative documentary" that alleges Muslims are trying to "infiltrate" the Indian civil services. Noting that journalistic freedom is not absolute, the Court held that a TV show cannot telecast divisive materials based on incorrect facts. 

While the case and its broader issue of self-regulating electronic media continues, the Government asked the Court to refrain from laying down additional guidelines for media and restrict its decision to just the Bindas Bol matter. The Government's counter-affadavit notes that existing law, created through Parliamentary Acts and prior case law, already balances journalistic freedom and the need for factual reporting. 

Meanwhile, Sudarshan TV, the channel responsible for the TV show, has asked the Court's permission to telecast the case's legal proceedings. Currently, arguments at the Court are not even recorded orally. For Sudarshan TV, some show must go on. 

From week of October 5: Shaheen Bagh Blockade was Unlawful

ACW week of October 5

Two weeks ago, we introduced Amit Sahni v. Commissioner of Police & Ors., a case concerning the Shaheen Bagh anti-CAA protests that took place during the winter of 2019-20. The protests blocked the Kalindi Kunj-Shaheen Bagh area in New Delhi, including an underpass [page 2-3 of opinion]. In February, the Court had appointed interlocutors to work with the protestors and identify a solution to open the blocked public roads [page 4]. The Court noted the difficulties with coming to a consensus as the protestors lacked unifying leadership, and instead had competing constituencies [page 5].

The appellants contended that the Constitution gave them an absolute right to protest [page 7]. However, the government cited precedents where the Court allowed the government to impose 'reasonable restrictions' on the right to assembly [id]. On Wednesday (October 7), the Court held that blocking public roads was unacceptable and advised the government to mitigate such problems [page 12]. 

While peculiarly citing author Walter Lippman [page 10], the Court expressly noted that public ways could not be occupied indefinitely as during the Shaheen Bagh protests. According to the Court, dissent in a democracy is enabled by constitutional rights to freedom of speech and peaceful assembly but limited by reasonable restrictions in the interests of public order [page 9].

The holding was limited to the road blockade and did not concern the constitutional validity of the Citizenship Amendment Act [page 2].