The oldest running story about India’s judicial system is one of pendency of cases that have not reached an end in years.
A former Supreme Court judge, Justice Madan Lokur cited the National Judicial Data Grid in May where he found “a staggering 43.90 million cases” were pending before the High Courts and district courts of India. What is of equal concern is the pendency of matters of national importance which fall squarely in the domain of the apex court. A Supreme Court Bench of Justice DY Chandrachud and Justice MR Shah on 1 June termed 95% of the cases before it “frivolous”. "We are seized with matter of national importance, but still we have to read all this," they lamented.
As physical hearings are set to make a return now, here are five matters of “national importance” before the Supreme Court, that must be heard on priority.
On Kashmir; Can This Happen to Any State?
Kashmir had, until recently been under a stringent and harsh lockdown, ever since 5 August when Article 370 was read down, the state bifurcated and stripped of statehood without seeking the views of the state assembly. Hundreds were arrested, including public representatives and three former Chief Ministers were held under the tough Public Safety Act. Whether all the new laws are in consonance with the Constitution is an issue hanging fire in the Supreme Court. The first petition was filed as early as 9 August, 2019.
There are 23 petitioners and several issues raised. The matter was last listed on 2 March, 2020, when a Constitution bench comprising five judges of the SC held that there was no need to refer the matter to a larger bench. However, thereafter no hearings have taken place.
The matter of downgrading a state to a UT and simultaneously bifurcating it, without reference to its assembly is the first in the history of independent India. Along with the removal of the ‘special status’ afforded to it from the very start, this is a matter that examines the very terms on which J&K became part of the Indian union and whether unilateral abrogation by the Central Government/Parliament to Article 370 is at all permissible. On the issue of conversion from State to UT, the federal structure of India is in question, for eg. can this happen to any other state?
The Court would need to hear this and decide if this would be a precedent for the future and other states.
Electoral Bonds & Transparency in Financing Elections
Central to the credibility of any modern democracy is the funding of political parties. Electoral bonds, operationalised by the Modi government in January 2018, provide anonymity to the donor and that disguise both: the kind of money coming into elections (corporates, non-corporates, kind of business); and the parties receiving it.
These bonds have been criticised as setting back transparency. The legal mechanism was introduced by bringing amendments to four different enactments through the Finance Act, 2017, and challenges have been pending in the Supreme Court. They are yet to be finally heard on merits. It was last heard on 26 March, this year, which is more than three years after it was introduced.
Elections are getting more expensive. Should anonymous donors, often interested corporates or moneybags with a pecuniary interest in policies, be allowed to fund parties of their choice without citizens finding out? Should it not be every Indian’s business to know who has funded which party and with what money? This is what is at stake here.
Validity of the Citizenship Amendment Act
The change in the Citizenship Amendment Act, 2019 allows for specified non-Muslim religious minorities of three countries who have been in India since before 31 December, 2014 to secure citizenship. The amendments were seen as a political dog whistle to link religion with citizenship. Large-scale all-India protests broke out and it led to some of the longest sit-ins in recent times. There are over a hundred petitions pending with the Supreme Court, yet to be heard.
If the top Court were to hear the validity of this new Act, whose rules are yet to be framed, would lend clarity to a critical issue: is the citizenship of India, carefully segregated from the question of religious or other personal beliefs or creed in the Constitution, now being allowed to link with a person’s religion?
Does this have a bearing on eventually shaping the question of who is an Indian citizen? Why just certain specified non-Muslims from three countries picked randomly?
Counting Votes & Credibility of the Election Commission
The Election watchdog, Association of Democratic Reforms and the NGO Common Cause, filed a petition after the results of the general elections in 2019, alleging a discrepancy between the voter turn-out and the EVM votes counted on the Election Commission website. In November 2019, the two petitioners cited differences in the two figures being higher than the winning margin in six constituencies. The matter raised serious questions of integrity in the counting process, and the Supreme Court issued a notice to the Election Commission to explain this in December 2019.
But there has been no hearing since. Counting votes fairly and transparently is critical to the credibility of the system of elections. The Election Commission is being questioned with greater frequency in the past few years. A fair hearing of this is important to restore faith in a process central to our democracy.
Money Bill: Validity of Passing Bills Without Taking Them to the Rajya Sabha
A bench, larger than five is set to be constituted by the Supreme Court to assess what exactly calls for designating a bill as being a ‘money bill’, and so escaping the necessity of a vote on it in the Rajya Sabha. Article 110 (1) defines this and the Speaker of the Lok Sabha decides this. But the Supreme Court is to adjudicate on the parameters of what constitutes a money bill and the extent of judicial review over a decision made by the Speaker. On 21 January, 2021, when petitions asking for a review of Aadhar were dismissed, Justice Chandrachud evoked this unfinished business.
This issue matters, because the existence of the Rajya Sabha is to allow for discussion and deliberation, and by providing this pause, balance brute majorities in the Lok Sabha. Rajya Sabha majorities have eluded all governments this Century. Unless this matter is resolved, the money bill route would be a tempting one for all governments to take as a recourse, in order to dodge discussion.
True Proof of Democracy
Hearing these matters speedily would underscore that democracy does not end with elections and all actions of a government that wins a majority, still need to pass the test of constitutionality.
Just the fact that the top judiciary is willing and able to take up these matters that question the actions of those who are the highest in the land, will prove that this is a country of rule of law and not rule by law.
(Seema Chishti is a writer and journalist based in Delhi. Over her decades-long career, she’s been associated with organisations like BBC and The Indian Express. She tweets @seemay. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same)