Ah 2017. Year of hatred, communalism, oppression, violence, dog whistles and fake news. And that’s just a recap of Republic and Times Now’s year. With the rest of India thrown into the mix, it’s been a bit of a dumpster fire of a year.
Of course, just because the executive is ramming
voluntary Aadhaar down everyone’s throats ( voluntarily), and the legislature has been rendered a joke by the sneaky disingenuous unconstitutional completely legit introduction of anything and everything through money bills, doesn’t mean India’s institutions have failed completely, right?
We still have the independent, progressive, forward-minded judiciary, headed by the Supreme Court of India, right? Right?
When the Supreme Court gets something right, it can often do so in a big way. One of the most overused terms in the legal fraternity is “landmark judgment”, but when some cases could have lasting impacts for decades to come, and in a good way, that’s not an exaggeration.
The Right to Privacy
After being put off for nearly two years, a Constitution Bench of nine judges was finally set up in August to decide whether or not we have a fundamental right to privacy. The question had originally arisen because Aadhaar was being challenged in the courts as a violation of our right to privacy.
The government came up with the genius argument that Indians didn’t have a fundamental right to privacy, despite 40 years of everybody agreeing we already did. But Aadhaar roxx, so anything goes.
Thankfully, all nine judges hearing the case rejected the government’s argument in August, and held that we all have a fundamental right to privacy enshrined in the Constitution. The judgment is 547 pages long and has a hell of a lot to say, but to keep things simple: Privacy is intrinsic to living your everyday life and to the other fundamental freedoms (like free speech) in the Constitution.
The right to privacy includes rights over your own body, the right to make your own decisions, and to keep information about yourself private – and because this is a fundamental right, the government can’t pass any laws which violate these rights.
While passing the judgment, the Supreme Court also conclusively struck down one of the worst judgments it’s ever passed – the ADM Jabalpur Habeas Corpus case, decided during the Emergency, which said that during an Emergency, your right to life and liberty could be messed around with by the government without a care in the world.
Several judges also took aim at the regressive Koushal judgment (which had said that section 377 of the IPC is chill), and strongly argued that adult people’s sexuality and sex lives were their own goddamn business (as long as it’s all consensual, of course).
The Child Marital Rape Case
In India, it’s still okay for a married man to forcefully have sex with his wife, consent be damned, because supposedly that’s just how marriage works.
In October, the Supreme Court went a small way towards righting this garbage position, by saying that this exception from rape does not apply when the wife is a minor, ie, under 18 years of age.
It’s horrifying that this actually needed clarification – but yes, before the judgment in Independent Thought vs Union of India, if a girl was between 15-18 years old and was married, her husband could have sex with her and this was legal – despite it being generally illegal to have even consensual sex with anyone under the age of 18.
Thanks to the efforts of the NGO Independent Thought, however, who had been fighting this case for years, the Supreme Court held that this position, despite being supported by the government, was arbitrary and ridiculous – sex with a minor, regardless of whether she’s married or not, is rape.
It is hoped that not only will this judgment stop the abuse of young girls, but also become a more effective deterrent to child marriage.
So that was the good stuff. Oh wait, were you expecting the courts to have done more good stuff? I’m afraid that, to quote Luke Skywalker, “This is not going to go the way you think.”
Unfortunately, despite doing some good things, the Supreme Court didn’t have a great year. This is not just about the stuff they did – but perhaps more importantly about the stuff they didn’t do.
The Aadhaar Cases
Given how ubiquitous Aadhaar has become, it would be remiss if I didn’t link this article with Aadhaar too. (Sorry)
But this is not a joking matter anymore. The government this year railroaded service after service with Aadhaar – and it’s no longer just public welfare schemes, it’s everything. Phone numbers. Bank accounts. Death certificates. Examinations. TB treatment. Tax returns.
A lot of this has been combined with an incredible amount of misinformation. Like the way the government insists that the Supreme Court ordered linkage of Aadhaar with mobile numbers, even though this never happened. Or the way they insisted that Aadhaar wasn’t actually mandatory for death certificates and TB treatment reimbursement, when it was.
And on top of that, there are people dying because of this nonsense. The biometric verification system is flawed and keeps failing to recognise people, especially if they’re old or have certain health problems. Or just because the technology isn’t perfect. And for starving people to be denied rations, for schoolchildren to be denied midday meals because of an Aadhaar problem is perverse and unacceptable.
And that’s not even taking into account the scope for misuse of this whole flawed system, as the Airtel payments bank scandal has showed. At the end of the day, even if you think Aadhaar can help clean up welfare leakages, it’s clear that the system as it currently stands is invasive and dangerous.
Nevertheless, the Executive is obsessed with this, and Parliament can do nothing about it. The only authority in this country which can step in and ensure the implementation of Aadhaar (if at all) is done carefully and without violating people’s rights, is the Supreme Court. And they’ve essentially treated it like college students treat research papers – by ignoring it till the last minute.
The Aadhaar case could have been heard immediately after the right to privacy judgment in August. But it wasn’t.
The CJI said it would be heard in the beginning of November. It wasn’t. Then the end of November. It wasn’t.
He was begged to pass an interim order in December to at least stop Aadhaar linking from being mandatory till the court passed a judgment. It wasn’t, though the government grudgingly agreed to postpone everything till 31 March 2018. Which means you can still be harassed to link Aadhaar to stuff, despite the Supreme Court in 2015 saying this should not be possible.
There was opportunity after opportunity to do something about the misuse of Aadhaar this year, which the Supreme Court ignored time after time. At some point, this will become a fait accompli. But maybe, with the case finally scheduled to begin on 17 January 2018, the Supreme Court can finally do what needs to be done.
The Hadiya Case
In May, the Kerala High Court, in one of its most appalling judgments, annulled a consensual marriage between an adult Muslim man and an adult Muslim woman, and sent the 24-year-old Hadiya to the custody of her parents – she was kept under police guard and not allowed to go where she wanted, or do what she wanted.
Her crime? She had converted to Islam, despite her parents’ wishes. And then some time later, had the temerity to marry a man she met after her conversion, without her parents’ permission.
The law she’d broken? Oh come now, we don’t need law and logic when we can shout about love jihad.
This whole farce was appealed to the Supreme Court in August. Instead of immediately quashing the High Court judgment (or at least staying it) and asking Hadiya to come and tell the court whether she was doing all this voluntarily or not, the judges listened to the bizarre arguments of the NIA about hypnotism and brainwashing, ordered an NIA probe into the matter, and left Hadiya in her parents’ custody for four more months.
Even when they finally called her to speak in December, they spent hours arguing about whether or not she needed to be heard, and despite letting her leave her parents’ home and go back to college, did nothing about the annulled marriage.
Basically, they told adult women across the country that it doesn’t matter what choices you make, your parents, the police, the government and the courts, can all come and tell you that you didn’t know what you were doing. And then pass orders micromanaging your life, despite having no authority to do so.
Because autonomy is so passé. What was that right to privacy judgment all about, again?
There’s a famous legal phrase that’s tended to be overused by lawyers, judges and hacks: “Justice must not just be done, but must be seen to be done.”
2017 will also unfortunately go down as a year when people’s faith in this justice being done was shaken. Now, I’m not naïve enough to be saying that people haven’t been cynical about the judiciary for decades – but what we saw this year has tarnished the aura that the higher judiciary still had for many of us.
The Medical Bribery Cases
Should judges who are accused of impropriety be allowed to preside over their own cases?
In November, two petitions were filed in the Supreme Court asking for a court-monitored investigation into bribery allegations involving a retired Orissa High Court Judge who had claimed to be able to influence a medical college’s cases in the Supreme Court and High Courts. The CBI was investigating the matter, but had made a complete mess of it thus far, including arresting another judge by mistake.
What made the whole thing tricky was that the bench hearing the case in the Supreme Court included the CJI himself, Dipak Misra. The petitions initially came up before Justice Jasti Chelameshwar, the second-most senior judge of the Supreme Court, who referred the matter to a Constitution Bench, which he said should have been made of the five senior-most judges.
The CJI took exception to his, overturned Justice Chelameshwar’s order, asserted that only he could decide who heard which case, and then set up a separate bench to hear the petitions. One, filed by Kamini Jaiswal, was dismissed for being too similar to the other. The other was dismissed as being frivolous, and the petitioners, the Campaign for Judicial Accountability and Reforms, was fined Rs 25 lakh.
By the end, no special investigation was ordered, without giving any real reasons for this, and the fine against CJAR was excessive and unwarranted. It doesn’t matter if the accusations against the CJI were baseless or nonsensical – the way the whole thing played out looked bad for the CJI and everyone else involved, and made it look like the Supreme Court has its own Civil War. Though I don’t know who’d be Cap and who’d be Iron Man in this equation.
Justice Karnan’s Case
In January, Justice Karnan, a judge of the Calcutta High Court, wrote a letter to the PM naming 20 judges he alleged were corrupt.
Despite saying that they didn’t have time to set up a large bench to hear important things like, you know, the right to privacy case, the Supreme Court somehow managed to convene several sittings of seven judges over the next few months, who barred the judge from performing his functions, ordered a psychiatric evaluation of Justice Karnan, and then held him guilty of contempt of court, sending him to jail for 6 months.
While Justice Karnan’s approach to all of this was quite extraordinary – he accused and found the seven judges (including then CJI JS Khehar) guilty of caste discrimination and other charges, and sentenced them to five years in jail – the case once again highlighted the unwillingness of the judiciary to deal with allegations of corruption, and became an ugly saga when Karnan initially disappeared when he was supposed to be arrested, and ended up spending 6 months in jail.
On top of that, the Supreme Court also passed a very problematic gag order restraining anyone from publishing any further statements by Justice Karnan. This kind of prior restraint of free speech can only be imposed by the court in very limited circumstances – where there is a case pending before the courts, and where the statements could prejudice that case. None of those conditions existed here.
So to recap, not only did we have senior judges accusing each other of bribery, contempt, psychiatric disorders, discrimination and airing all this dirty linen in public, we also got as a special offer with it – a possibly unconstitutional restriction of free speech by the very court that is supposed to protect free speech.
Needless to say, 2018 can’t come quick enough.
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