Observer Desk

Posted on 27.12.17 by

Review of the Supreme Court’s Winter Session: 3rd October -15th December 2017

This session was marred by allegations of corruption against the higher judiciary and the subsequent mishandling of situation by Apex Court , which imposed an exemplary cost of 25 lakh on the petitioner Prashant Bhushan, worsened the crisis. In the midst of this credibility crisis, the 5 Judge Constitution Bench comprising of Chief Justice Dipak Misra, DY Chandrchud, A. Khanwilkar, Ashok Bhushan and A.K. Sikri. heard and reserved judgement three constitutional cases –  Common Cause v UOI (evaluation of the Fundamental Right to Life, in the context of the right to die with dignity), Kalpana Mehta v UOI (scrutiny of the separation of powers with respect to parliamentary privilege) and NCT v UOI (examination of federalism as enshrined in the Constitution).

Common Cause v UOI, which dealt with recognition of Living Will and Advanced Directive for terminally ill patients was heard for 2 days and reserved for judgment. Six days of arguments were heard in the Kalpana Mehta v UOI, which examined if Parliamentary Standing Committee Reports could be relied upon by the Supreme Court to issue directions under Article 32 (writ jurisdiction) and Article 136 (Special Leave Petition). The case was in response to the tragic Human Papilloma Virus (HPV) clinical test, which was sanctioned by Drugs Controller General of India (DCGI) and Indian Council of Medical Research (ICMR), despite an adverse report by a Parliamentary Standing Committee. The case of NCT v UOI was heard for 15 days by the court. In this case the Delhi Government had appealed the Delhi High Court decision which had declared  the Lt. Governor to be the “administrative head” and was not bound by the aid and advice of the council of ministers. In many ways, this case is very significant for examining evolving nature of Indian Federalism and the limitations on Centre’s power to interfere in the governance of Union Territories like NCT.

In one of the most anticipated hearings of this session the Shafin Jahan v Ashokan case, Hadiya testified in open court on 27th November 2017 after which the Supreme Court modified its earlier interim order, allowing her to continue her studies in Salem. The earlier order of 8th August by Former Chief Justice Khehar, ordering a NIA probe into her interfaith marriage and putting the 25 year old Hadiya into house custody, had been widely criticised. By releasing Hadiya from her parents’ custody, the order on 27th November partially undid the effect of the earlier order.

On 5th December, the eve of the Babri Masjid demolition, the SC heard the Maulana Aashad v Mahant Suresh Das case and rejected the plea by Senior Counsel Kapil Sibal, who was representing the Wakf Board, to postpone the matter to after Lok Sabha elections scheduled for July, 2019. Instead the matter was adjourned to 8th February. The 5 judge bench has also started hearing the case of Goolrokh Gupta v Burjor Pardiwala, which will decide if a Parsi woman loses her own religious identity and can be excommunicated by the Parsi Trust on marrying a Non-Parsi.

On 14th December, a day before the end of the session, the Supreme Court in Puttaswamy v UOI issued an interim injunction on linking Aadhar with various services until 31st March, 2018. This hearing was necessitated by the 31st December 2017 deadline for linking Aadhar to bank accounts and other services. The Court will begin regular hearings on the constitutionality of the Aadhar Regime from 17th January.

The winter session was an eventful one with the court hearing many constitutional cases and also giving interim relief to citizens in matters of Aadhar. However, the tactless handling of corruption allegations has seriously dented the court’s self image and institutional authority and the court will have to work on its accountability mechanism to redeem its image as the temple of justice.



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