By P.K.Balachandran/Daily Mirror
It was only in January this year that the legitimacy of the Indian Supreme Court was under serious scrutiny following an unprecedented press conference held by four judges of the court led by Justice J. Chelameswar, second in the pecking order after Chief Justice Dipak Misra.
In a written statement issued to a stunned media, the four judges said that the internal administration of the country’s highest court was so vitiated by the high-handedness of Chief Justice Dipak Misra, that Indian democracy would itself be in peril if highhandedness and arbitrariness of this sort were not checked immediately.
They alleged that Chief Justice Misra was exceeding his powers as “the first among equals” by manipulating the roster to get some politically sensitive cases heard by a suitable roster of judges.
One of the cases was the mysterious death of Judge B.H. Loya, who was hearing a murder case involving Amit Shah, President of the ruling Bharatiya Janata Party (BJP).
Eventually, the internal dispute was patched up. And Chief Justice Misra not only nominated Justice Ranjan Gogoi, one of the leaders of the revolt, as his successor (As per rules) but gave a series of landmark judgments which strengthened social justice, equity and democracy.
By the end of Misra’s tenure on September 30, the Indian Supreme Court had redeemed itself well and truly.
Historically, the famous Ayyappan temple in Sabarimala in Kerala, was out of bounds to women because Lord Ayyappan was a celibate. Menstruating women were barred and even men devotees had to be ritually purified through a rigorous process over a period of 40 days before being allowed in.
On a petition filed against this, Chief Justice Misra and Justice A.M. Khanwilkar ruled that devotion could not be subject to gender discrimination. Justices Rohinton F. Nariman and Dhananjaya Y. Chandrachud concurred.
Thanks to another recent Supreme Court judgment, adultery is no longer a crime in India though “without a shadow of doubt” it could be a ground for divorce.
“The husband is not the master of the wife,” said the five-judge bench, unanimously striking down the Victorian adultery law.
The law punished a man who had an affair with a woman “without the consent or connivance of” her husband and the punishment was five years in jail. There was no punishment for the woman, who was seen as the victim.
“The wife can’t be treated as chattel and it’s time to say that husband is not the master of the woman,” Chief Justice Misra said.
The judges noted that most countries had abolished laws against adultery and making adultery a crime would mean “punishing unhappy people.”
The Chief Justice further said that adultery might not be the cause of an unhappy marriage. It could well be the result of one.
Justice Misra, who was thought to be pro-BJP, gave the judgment despite the fact that the BJP Government had opposed the petition filed by Joseph Shine a 41-year-old Indian businessman.
The Supreme Court recently ruled that the production of the Biometric Identity Card, called ‘Aadhaar’, could not be deemed mandatory for availing of various Government-sponsored services, especially services for the poor and disadvantaged.
This followed the death of a child, who could not be admitted to a government hospital because her parents did not have the Adhaar Card. The court further said that the Adhaar Card was primarily meant to see that the Government’s food scheme (Which costs US$ 23.6 billion a year) reached the targeted poor group and was not monopolized by the well to do.
The judges also struck down a Government effort to make Adhaar mandatory for opening bank accounts or taking a mobile telephone connection or getting school admission.
The Supreme Court ruled that Section 377 of the Indian Penal Code could not punish gay sex between consenting adults. However, it could punish non-consensual sex, sex with minors and bestiality.
As per Section 377 IPC “unnatural offences” include voluntary carnal intercourse against the order of nature with any man, woman or animal. It shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Supreme Court’s chequered history
The Indian Supreme Court has had a chequered history like other democratic institutions in the country. In the 1950s, immediately after independence from Britain, the court tended to be conservative.
In 1951, it struck down a Madras Government order which provided for reservations in Government jobs and educational institutions for the backward classes or castes.
This prompted the then Indian Government led by Jawaharlal Nehru to bring about the First Amendment to the Indian Constitution to provide for reservations for backward communities.
In the 1960s, leftist politics had taken over India. In 1969, to make banks open their doors to all, including the poor, Prime Minister Indira Gandhi nationalized 14 major banks. The Supreme Court followed suit and reversed an earlier ruling of 1967 in which it had said that under no circumstances could Fundamental Rights be violated.
But in 1970, when Indira Gandhi abolished the Privy Purses given to the 500-odd Indian Princes, when their States were absorbed in the Indian Union, the Supreme Court struck it down on the grounds that abolition of the purses was a breach of a solemn promise.
In 1973, in the Keshavananda Bharati-vs-State of Kerala case, the court battled over the question as to whether parliament has an unbridled power to amend the Constitution including Fundamental Rights.
On a plain reader, Article 368 did not contain any limitation on the power of parliament to amend any part of the Constitution. The court ruled that parliament could amend the constitution but not its “basic structure” or “the essential features of the Constitution.”
The Kesavananda Bharati case was the culmination of a serious conflict brewing between the judiciary and the Indira Gandhi regime.
In 1975, the Allahabad High Court had unseated Indira Gandhi from Parliament on the grounds that she had used official personnel and privileges in her 1971 election campaign in Rae Bareily constituency.
When she challenged this in the Supreme Court, Justice V.R. Krishna Iyer, a committed Leftist Judge, stayed the order so that she could continue as Prime Minister.
By then Indira Gandhi had introduced the concept of a “committee judiciary” and “committed bureaucracy” so that her radical socialistic programmes could be implemented. She packed the Supreme Court with committed judges.
After she declared the State of Emergency later in 1975, (triggered by a movement which called on the police and officials not to obey illegal orders), Indira Gandhi got the court to set aside the judgment unseating her from Parliament.
After the end of the Emergency in 1977, Governments did try to manipulate the Supreme Court. One way of manipulating it was to determine the appointment of judges.
But the court fought back and in 1993 it introduced the Collegium System to choose judges for the Supreme Court and the High Courts in which a Collegium of Judges would do the choosing.
But since it was the Government which should finally make the appointment, governments would delay or send back nominations, which they did not favour. However, the January 2018 revolt of four senior Supreme Court judges has reined in the Government in this regard.
(The featured image at the top shows former Indian Supreme Court Chief Justice Dipak Misra)