Week of September 14, 2020

Banned TV shows, pending criminal cases against legislators, an unchecked Executive, 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

18th century building to stay

The Court stayed a demolition to an 18th century building in Bihar. The building under question is Patna's collectorate building. A petition had challenged the Court's prior decision granting the Bihar government permission to demolish the building. The building was built in the 18th century by Dutch traders and was used to store, among other things, opium. Previously, the Patna High Court had noted that the building carried no cultural or historical significance. 

Uttarakhand cannot follow the Court's orders

In perhaps another sign of the Court's heavy-handed (and often unenforceable) interference in administrative affairs, Uttarakhand Chief Minister Trivendra Singh Rawat said that the Court's order limiting a all-weather road to 5.5 meters in width was inadequate from a strategic perspective. Uttarakhand is a mountainous state that shares an approximately 350km border with China. Amidst growing Sino-Indian tensions and recent border conflict, a suitable all-weather road developed by the government and without judicial interference may be necessary.

CAN'T MISS THIS

Moving things along

The Court continued to address the backlog of criminal cases pending against legislators in the judiciary. In an order released on September 16, the Court noted that there were approximately 175 cases under the Prevention of Corruption Act and 14 under the Prevention of Money Laundering Act. [page 7 of order] Additionally, 4442 criminal cases were pending as well. [id] Note that more cases are likely pending, as only 11 High Courts submitted reports on the matter. [id] 

The Court noted that despite its persistent efforts since 2016, the number of pending cases has not declined. [page 8] The order highlights multiple reasons why: 

  • Lack of special courts designed to handle these cases

  • Lack of public prosecutors

  • Inability to follow through with investigations after preliminary stages

The Court found the problem concerning because of the growing criminalization of politics and the legislator's ability to influence effective prosecution.[page 15 of order] Additionally, the Court felt that any democratic electorate should be aware of their representative's priors before entering the voting booth. [Id]

As a result, the Court asked Chief Justices of High Courts to prepare an action plan to address this issue using Special Courts. [page 16] The Court asked each Chief Justice to form a committee that would monitor the Special Courts. [Id] Given the delays in the process, the Court requested replies within a week. [Page 17]

Most notably, the Court warned Chief Justices that COVID-19 was not an excuse for delays. [Id] 

The Show can't go on

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. 

PETITIONS

Rajdeep Sardesai petition dismissed

Last week, we covered the petition seeking to initiate criminal contempt proceedings against journalist Rajdeep Sardesai. We noted that a criminal petition would require the Attorney Genera's consent before going up to the Court. On September 17, the Attorney General declined consent. The AG's letter noted that Mr. Sardesai's tweets were not serious enough to undermine the Court. The letter also referred to the Court as "[O]ne of the great pillars of our democracy."

A ban against artificial reproduction

On September 18, the Court agreed to hear a petition arguing that Artificial Reproduction Technique (ART) on animals is illegal under current statutes and unconstitutional as well. The petition notes that the Constitution mandates protecting the environment and nature. Aside from listing the practice's environmental costs, the petition also argues that ART is cruel practice against animals. Interestingly, the Court agreed to hear arguments in person

Challenging Special Marriage Act

The Court asked the Government to reply to a petition challenging provisions of the Special Marriage Act. The petition argues that the provision mandating disclosure of couples who wish to marry is a violation of their right to privacy. In oral arguments, the Chief Justice noted that disclosure of various details (such as name, address, phone number, date of birth, parents' details) may help a husband or father in case "[[S]omebody runs away with someone's wife or daughter. . . ." The petitioner's lawyer argued that public notice would deter consenting adults from marrying into different communities. 

STORIES WE’RE READING

Retired Justice warns of a growingly unchecked Executive

In a speech, Retired Justice AP Shah warned that "[E]very institution, mechanism or tool that is designed to hold the executive accountable, is being systematically destroyed." He particularly criticized the Court, noting its inability to act as a counter-majoritarian against a majoritarian government. Justice Shah applauded the Court's resistance in 2014-15 against the government's attempts to interfere with judicial appointments, but lamented that the Court's independence has headed in a downward spiral since. 

The Basic Structure doctrine

Last week, we covered Swami Kesavananda Bharati's death. Mr. Bharati's petition led the Court to outline the Basic Structure doctrine. The doctrine today enables the Court to challenge Constitutional amendments that challenge the Constitution's spirit. This article chronicles the case and outlines its impact on India today. The author considers the judgment India's second most important text, surpassed only by the Constitution itself.