Week of October 5, 2020
Shaheen Bagh road blockade was unlawful, RBI tells the Court to stay away, 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
RBI urges the Court to stay away
Urging the Court to refrain from managing the financial system during an economic crisis, the Reserve Bank of India (RBI) sought to lift loan repayment moratoriums that were instituted at the outset of the COVID induced lockdowns in March. India's central bank argued that continuing a stay on loan repayments would interfere with the agency's regulatory mandate and adversely affect credit discipline, creating ripple effects through India's financial system. The Court will decide on the matter on October 13.
Surprise: Vijay Mallya does not report to the Court
To no one's surprise, "Bad Boy Billionaire" Vijay Mallya did not appear at the Court for a hearing on the pending contempt of court case against him. Mr. Mallya is absconding in the UK, where his extradition to India has been upheld. However, the Ministry of External Affairs informed the Court on Monday (October 5) that "secret proceedings" pending against Mr. Mallya at a British court prevented him from appearing before the Court. Interestingly, counsel for both the MEA and Mr. Mallya were not aware of the nature of the proceedings or the identities of the parties involved.
AG denies permission to begin criminal contempt against Digvijay Singh
Ever since the Court's began proceedings against Prashant Bhushan for criticizing the Court, similar petitions are urging the Court to begin proceedings against other individuals criticizing the Court on Twitter. However, criminal petitions must be approved by the Attorney General before they are brought before the Court. The AG dismissed a petition seeking to bring contempt proceedings against journalist Rajdeep Sardesai for his tweets. On Sunday (October 4), the AG dismissed another petition seeking the same against Congress MP Digvijay Singh.
CAN'T MISS THIS
Shaheen Bagh road blockade was unlawful
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].
PETITIONS
Namaste-Trump petition dismissed
Neither the Indian nor American governments have received high praise for their handling of COVID-19. A petition before the Court clubbed them together, claiming that the Namaste Trump event held in February went against the Home Ministry's guidelines that recommended avoiding large gatherings. The petition sought a broad inquiry into the government's handling of the pandemic. On October 1, the Court dismissed the Petition.
Equal alimony and maintenance for all
A petition before the Court seeks uniform grounds of "alimony and maintenance" for all individuals regardless of their gender, religion, and caste – among other identity markers. The petition laments the complicated set of laws governing issues like alimony, citing the various Acts that apply to different religious groups. The petition urges instituting uniform laws for secular principles such as alimony, maintenance, adoption, succession, and inheritance. The different set of laws for different individuals violates constitutional rights. India infamously does not have a uniform civil code that governs all individuals, regardless of religious identity.
STORIES WE'RE READING
Larger issues stemming from Shaheen Bagh
Balancing the right to protest with maintaining public order raises a bigger issue: Seeking the police's permission before commencing a protest. This article notes that the "permission raj" enables the police to delay protests, and argues that the judiciary has done little to solve the problem. The author argues that the only effective way to maintain an active democracy would be to permit protests on public property like highways.
Engaging the public with the Court's judgments
This article laments the Court's inability to engage with the wider public. The author suggests that the Court create a communications office, and summarize its opinions for the press and public. The author cites American, British, and South African courts as examples. In the United States, Supreme Court opinions are prefaced by a "syllabus" prepared by a Reporter of Decisions. The United Kingdom Supreme Court, established only in 2009, has a communications department that educates the public with the court's judgments. Law Clerks at the Constitutional Court of South Africa and Supreme Court of Appeals of South Africa prepare summaries of opinions. The author notes that different solutions may be effective in engaging with the public, but a step is needed in that direction.