Week of September 7, 2020

The animal kingdom as a legal entity, postponing elections, Maratha reservations 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.


Loan moratoriums extended

Loan repayment requirements have been paused since a March directive by the Reserve Bank of India. However, a petitioner asked the Court to prevent banks from charging interest on pending principal amounts during this period. After hearing oral arguments, the Court extended the moratorium by two weeks and agreed to hear the matter then.

Social distancing at the Court

The Court's Justices have been advised to sit separately during hearings, even as the hearings themselves remain virtual. For example, during a three-judge hearing, the Chief Justice heard arguments from his chambers while two Justices heard the case from the courtroom. The Court acknowledged that this advice is a precautionary measure. 

Oil prices unregulated

Usually, government enforced price regulation leads to lower prices for consumers. However, while global oil prices plummeted this year, Indian consumers have only seen oil prices go up, according to this petition. The petition sought to deregulate petrol and diesel prices as the government maintains a heavy hand in determining pricing. In this case, the Court was not interested in intervening in the government's policy decisions.


Maratha reservation issue partially referred to a Constitutional bench

The constitutionality of the Maharashtra State Reservation Act, 2018 was challenged in Dr. Jaishri Laxmanrao Patil v. The Chief Minister of the State of Maharashtra. The Act granted 16% reservation in educational institutions (including private institutions) and state public employment to the Maratha community. [page 3 of judgment] The Bombay High Court reduced the percentage reservation granted to the community. [Id] 

The petitioners sought to refer the case to a larger constitutional bench as the questions it presented were similar to cases where the matter was placed before a larger bench. [page 7 of opinion] However, the respondents contended that the Act's validity was challenged merely because it would exceed the Court's 50% cap on reservations outlined in Indra Sawhney v. Union of India. [page 7 of opinion] The Court sided with the respondents and reasoned that Indra Sawhney outlined a clear rule and no larger constitutional question needed to be answered. [page 9 of opinion]

However, the Court did refer another issue to a constitutional bench: Whether a State legislature (in this case, Maharashtra) can declare particular castes to be "socially and economically backward". [page 10 of opinion] 

The Court also considered its capacity to issue interim orders while referring issues to a larger bench. The Court noted that when a law is unconstitutional on its face or contradicts the Court's prior judgments, an interim stay may be granted. [page 15 of opinion] Applying Indra Sawhney, the Court held that the State of Maharashtra failed to provide an extraordinary situation for extending reservations beyond 50% [page 19 of opinion] and that the Act's implementation would be stayed as a larger bench considers the case. 

The issue is a contentious political topic in Maharashtra and will be keenly followed. 


Postpone elections

According to the 2011 census, the state of Bihar's population is around 100 million. Two petitions are asking the Court to direct the Chief Election Commissioner to postpone the upcoming Bihar Assembly elections. Given the pandemic, this petition challenges the Election Committee's ability to conduct a free and fair election consistent with its statutory authority in the Representation of People's Act, 1951 and Constitutional responsibility outlined in Article 324. 

Animal rights are human rights

Corporations and other business forms can sue or be sued directly as they are legal entities. A petition before the Court seeks legal entity status for the animal kingdom as well. The petitioner notes that doing so will protect animals. While the Court agreed to hear the petition, they noted that it is unlikely that the legal entity status would be granted.

Contempt challenges continues

While the Court assumed its suo motu powers in the Prashant Bhushan case, a petition seeks to hold journalist Rajdeep Sardesai in contempt as well. The petition objects to— you guessed it—Mr. Sardesai's tweets criticizing the Court. Perhaps because prosecutorial power rests with the executive, criminal petitions before the Court require the Attorney General's prior consent. Last month, the Attorney General had rejected another petition seeking contempt.


A passive court

The Court has retreated from its position as one of the most successful High Courts in the world to check government excess, according to this article. After the Court struck down the 2014 Act giving the government a say in appointing Justices, it has failed to seriously challenge any government action. While the article notes the Court's abstention from refusing to comment on the Article 370 abrogation and the Citizenship Amendment Act, it discusses more instances where the Court has retreated from its responsibility of judicial review.

Virtual Courts should continue

A Parliamentary panel recommended that virtual courts should continue beyond the pandemic, arguing that digital justice is cheaper and faster. The report notes that a more digital court system could help clear the backlog of cases pending before the Indian judicial system. Interestingly, the report quotes (without citation) the American jurist Benjamin Cardozo, who once said that "[N]ew times demand new measures and new men". You can read the full report at the bottom of the linked article.

In memoriam: Swami Kesavananda Bharati

On September 6, spiritual leader Swami Kesavananda Bharati passed away. He will be remembered as the petitioner in one of India's most important constitutional cases: Kesavananda Bharati v. State of Kerala. This article remembers his contribution to Indian constitutional jurisprudence. In a 7-6 opinion, the Court held that even with amendments, Parliament could not alter the Constitution's basic structure. The writer contends that without the opinion, Indian democracy would have surely not survived.