Week of September 21, 2020

The government loses in international arbitration, petitions oppose the CAA opposers, 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.


Postponing India's Civil Service exams

Hundreds of thousands of aspirants participate in India's civil service exams every year. Civil servants form the backbone of India's expansive Central and State governments, advising governments regardless of political affiliation. A petition before the Court seeks to postpone this year's exams. The petition notes the exams' distinction from regular academic exam administration that has been brought before the Court this year, arguing that there are no concerns like upending the yearly academic cycle. The Court issued notice to the Government and UPSC, setting the case up for oral arguments.

Bihar elections to continue

It seems the pandemic has brought a slew of petitions seeking the Court's intervention in postponing important affairs, or at least we've been covering a lot of those. We've discussed a petition seeking the Court's intervention in postponing the Bihar elections. After having dismissed a similar petition in August, the Court disposed of this matter, too.

ACW week of September 7


From the Court to international arbitration

Vodafone's India venture has not been doing well financially, to say the least. The company is straddled with $14 billion of debt and has reported eight straight quarterly losses. 

In 2007, the government taxed capital gains from Vodafone's acquisition of Hutchison Essar Ltd. However, because the company was officially based in the Cayman Islands, the Court held that the government's tax power did not extend that far. To circumvent the Court ruling, the Indian government in 2012 amended its tax code to include any M&A deals going back to 1962. The amendment specifically targeted Vodafone and included the U.K.'s Cairn Energy. 

An international arbitration tribunal at the Hague sided with Vodafone, holding that the retroactive tax violated bilateral agreements between India and the Netherlands. An arbitration ruling is expected on the Cairn Energy matter, too. Shares of Cairn Energy closed 13% higher in London on Friday.

The opposition to the CAA opposition 

While reserving verdict on cases involving protests against the controversial Citizenship Amendment Act (CAA), the Court noted that no universal policy can be applied when considering the right to protest. The Court's remarks come in response to litigation over the Shaheen Bagh protests in New Delhi last December, where protestors temporarily occupied a road. The blockade ended in March, when COVID-19 sent the country into lockdown. 

The Court noted the need to balance the right to protest against limits on blocking roads. Particularly, Justice Bose remarked that "For a long time, a public road was blocked. What about the right to use the road?" The petitions against the anti-CAA protests claimed that while there is a right to peacefully protest, the Shaheen Bagh protests were not as such. Different petitions made different claims; one speculated that the blockade would resume after the COVID crisis ends while another argued that public places in the nation's capital cannot be used to protest constitutional amendments.

None of these cases involved the constitutionality of the CAA. The Court has not decided on that matter.


Challenging the Court's decision

In India, the Court's judgments can be challenged through petitions filed at the Court itself. The Maharashtra government petitioned the Court and challenged its authority to issue interim stays while a case is referred to a larger Constitutional bench. The case we are referring to is Dr. Jaishri Laxmanrao Patil v. The Chief Minister of the State of Maharashtra, which we covered two weeks ago. In the case, a three-Justice bench stayed the Maharashtra government's decision to grant reservations to the Maratha community, despite referring the case to a larger bench. 

ACW week of September 7

Equal protection for transgenders

petition before the Court seeks to grant equal protection to transgenders, arguing that the Indian Penal Code (IPC) does not protect them from sexual assault. The petition notes that the Court has recognized a "third gender". The petition seeks to direct the Government to modify the IPC appropriately and include transgender persons in provisions dealing with sexual assault. 

No mandatory English training

Ever since the Republic's creation, India has a long history with state action imposing languages on groups of people. The Andhra Pradesh government recently passed mandated English as a subject to all students in government until the 6th grade. Opposition leaders in the Andhra Pradesh Assembly and Telegu artists approached the Court seeking its intervention. The Andhra Pradesh High Court has already found the government's action to be unconstitutional. 


India's fraught history with free speech

Ever since the Republic's founding days, India's policy makers have struggled to define the bounds of free speech. According to this article, the problem has gotten worse in recent years. The author argues that legal instruments have not solved the underlying political and social issues that sometimes are at odds with free speech. Crucially, the author argues that regulating speech is beyond the Court's jurisdiction and is a matter that must be left to Parliament. 

The Court intervenes appropriately

While one author suggests the Court should not subvert legislative prerogatives and create regulatory frameworks, this article's author applauds the Court's intervention in the Sudarshan TV case and doubts the Government's claims as a protector of free speech. However, the author notes that judicial intervention should extend beyond just this case and act as a regulator against hate speech.