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Legal Updates

Special Issue
{2018}
Issue 12
.5
The second-half of September was a historical period in the history of Supreme Court of India. From the bench in Ismail Faruqui case to the order on prison reforms, here is a recap of the 7 judgments which will greatly affect the Indian legal arena for years to come.
  • Supreme Court says candidates cannot be disqualified on framing of charges
The Supreme Court on the 25th of September rejected a batch of pleas asking the Court to bar candidates facing criminal trials from contesting in elections at the stage of framing of charges against them. The bench comprising of CJI Dipak Misra, Rohinton Nariman J., AM Khanwilkar J., DY Chandrachud J. and Indu Malhotra J., in a unanimous decision said that the judiciary was not the appropriate body to create a pre-condition on the right of candidates. It however did state that the criminalisation of politics was a serious concern and that the Parliament should consider legislating on the same.

Further Reading:
  1. Report No. 244, Electoral Disqualifications, Law Commission of India (February 2014)
  2. B. Venkatesh Kumar, Criminalisation of Politics and Election Commission, Economic and Political Weekly, Vol. 36, No. 24 (June 2001)
  3. Milan Vaishnav, When Crime Pays: Money and Muscle in Indian Politics, Yale University Press (January 017)
  4. Nithya Nagarathinam, Criminalisation of Politics, The Hindu Centre for Politics and Public Policy (April 30, 2014)
  • Supreme Court rules that lawyer elected as lawmakers can practice in courts
A bench comprising of CJI Dipal Misra, AM Khanwilkar J. and DY Chandrachud, dismissed a petition seeking to bar legislators from practising as advocates on the 25th of September. The Court said that there was no conflict of interest if the MPs were allowed to practise law in the Supreme Court and High Courts before the very judges they have the power to impeach. The Court further said lawmakers could not be described as “full-time salaried employees” of the State. Advocates are forbidden to being full time salaried employees as long as they continue their practice.

Further Reading:
  1. Legal Correspondent, Can’t stop legislators from practising: Bar Council, The Hindu (April 01, 2018)
  2. Should legislators be allowed to practice in Court? Legal Alert (March 6, 2018)
  3. George F. Carpinello, Should Practicing Lawyers be Legislators, Hastings Law Journal 41, no. 1 (November 1989)
  4. Judy Arginteanu, An Elegant Balancing Act: Lawyers as Legislators, Bench and Bar of Minnesota (February 9, 2015)
  • Supreme Court refused to refer M. Nagraj case to a seven-judge bench
The Supreme Court on the 26th of September rejected a plea seeking a review of the 2006 judgment of M. Nagraj, which had laid down  conditions for granting  promotions to  employees belonging to the Scheduled Castes or Scheduled Tribes. The bench comprising of CJI Dipak Misra, Rohinton Nariman J., AM Khanwilkar J., D.Y. Chandrachud J. and Indu Malhotra J., also said that there was no need for states to collect quantifiable data on the backwardness of to provide reservations in job promotions to employees belonging to the Scheduled Castes or Scheduled Tribes.

Further Reading:
  1. Reservation in Promotions for Members of Scheduled Castes, National Commission for Scheduled Castes
  2. Ira Chadha-Sridhar; Sachi Shah, Caste and Justice in the Rawlsian Theoretical Framework: Dilemmas on the Creamy Layer and Reservations in Promotions, NUJS Law Review 10, no. 2 (April - June 2017)
  3. R Christodas Gandhi, Reservation verdict: Creamy layer order means no promotions for SC/ST employees even at lower levels, Scroll.in (October 01, 2018)
  4. Faizan Mustafa, Why reservation in promotions for state jobs is a non-issue, Hindustan Times (June 20, 2018)
  5. Anup Surendranath, Winning the case for promotion quotas, The Hindu (September 06, 2018)
  • Supreme Court allowed live proceedings of Supreme Court in selected matters
A three-judge bench of the Supreme Court on the 26th of September assented to the live streaming of court proceedings in the “matters of constitutional importance.” The Court was hearing a case led by Senior Advocate Indira Jaising, involving a PIL filed by a student of NLU Jodhpur, Swapnil Tripathi. The PIL was against the ban on interns to enter the Supreme Court on miscellaneous days.  The judgment contains a set of suggestive guidelines laid down by the Court to facilitate the legal and practical implementation of the matter. The guidelines are concerned with the types of cases to stream, use of appropriate technology and the role of different agencies for such implementation. It further directed the Central Government to form rules under Article 145(1) of the Constitution irrespective of the guidelines laid down.

Further Reading:
  1. Live Law Network, Breaking: Sunlight Is The Best Disinfectant: SC Allows Live-Streaming Of Court Proceedings In Larger Public Interest [Read Judgment], Livelaw.in (September 26, 2018).
  2. Scroll Staff, SC allows live-streaming of court proceedings, says rules to be framed soon, Scroll.in (September 26, 2018).
  3. The Quint, SC Allows Live-Streaming of Court Proceedings, The Quint (September 26, 2018).
  4. Avani Bansal, , LSC Allows Live-Streaming of Court Proceedingsivelaw.in (July 20, 2018).
  5. Should Supreme Court proceedings be live-streamed?, The Hindu (February 16, 2018).
  6. Apoorva Mandhani, Meet The Law Students Who Fought For Live-Streaming Of Court Proceedings, Livelaw.in (September 28, 2018).
  • Supreme Court upholds the validity of Aadhaar
The Supreme Court in a majority decision penned by AK Sikri J. upheld the validity of the Aadhaar Act on the 26th of September. The bench which also included CJI Dipak Misra and AM Khanwilkar J., stated that it was difficult to undertake surveillance using Aadhaar and that there were sufficient security features to protect citizens’ data. While Ashok Bhushan J. wrote a concurring decision, D.Y. Chandrachud J. penned a dissent. Chandrachud J. stated that the safeguards were not robust enough with regards to informed consent and individual rights.

Further Reading:
  1. Initial analysis of Indian Supreme Court decision on Aadhaar, Privacy International (September 26, 2018)
  2. Shankkar Aiyar, Aadhaar: Supreme Court Saves The Baby, Drains The Bath Water, Bloomberg Quint (September 28, 2018)
  3. Vrinda Bhandari, Aadhaar valid, but restricted, and still a problem, Deccan Herald (September 26, 2018)
  4. Prashant Reddy, Aadhaar Verdict: Does the Mere Collection of Biometrics Violate Bodily Integrity and Privacy? The Wire (October 5, 2018)
  5. Apar Gupta, Aadhaar judgement sets a legislative agenda, Black Letter (September 28, 2018)
  6. Malavika Prasad, Aadhaar verdict: SC's majority judgment lacks consistency in logic and reasoning, turns constitutional analysis on its head, Firstpost (September 29, 2018)
  7. The Aadhaar Judgment: A Round-Up, Indian Constitutional Law and Philosophy (October 5, 2018)
  • Supreme court decriminalized adultery, Section 497 of the IPC struck down
A five-judge bench of the Supreme Court, headed by CJI Dipak Misra, unanimously struck down Section 497 of the Indian Penal Code, 1860 that provided for the criminal liability of a married man for having consensual relations outside wedlock on the 27th of September. The law was widely criticized for being discriminatory towards men as it did not provide for criminal liability for women who committed the same offence. The Supreme Court observed that the law was arbitrary and violative of Article 14 of the Constitution as it was rooted on the patriarchal notions of treating women as the property of men and deprived her of her dignity and sexual autonomy. Justice Chandrachud, in his concurring opinion, noted that the earlier challenge on Constitutional validity of Section 497 was treated by the Supreme Court in a restricted manner and was extremely irrelevant to the current scenario.

Further Reading:
  1. Michael Safi, Adultery is not a crime, India's Supreme Court rules, The Guardian (September 27, 2018).
  2. Ananthakrishnan G, Adultery no longer a crime, wife is not property of husband: Supreme Court, The Indian Express (September 28, 2018).
  3. Priyanka Mittal, Adultery no longer a crime as Supreme Court strikes down Section 497, Livemint (September 27, 2018).
  4. Avani Bansal, India Needs to Debate About Law on Adultery, Livelaw (February 7, 2018).
  5. Madhu Mehta, Should adultery be a crime at all?, The Wire (August 4, 2018).
  6. Should Adultery be a crime?, The Hindu (December 22, 2018).
  7. Express Web Desk, India decriminalizes adultery: A look at other countries where it is still a crime or not, The Indian Express (September 27, 2018).
  • Supreme Court allowed entry of women to the Sabarimala Temple
A five-judge bench of the Supreme Court with a 4-1 majority struck down Rule 3(b) formed under The Kerala Hindu Places of Worship Act which gave statutory legitimacy to the ban on women entering the Sabarimala temple on the 28th of September. The Sabarimala temple is a Hindu pilgrimage center located in the state of Kerala. The respondents contended that the deity present in Sabarimala is celibate and allowing women to enter the temple would infringe the deity’s right to privacy. The Court refused to accept the respondents’ arguments and the majority opinion, penned by the CJI Dipak Misra, held that the ban being imposed on women was violative of Article 14 of the Constitution. J. Indu Malhotra dissented while observing that the Sabarimala Temple constituted a religious denomination under Article 26 of the Constitution, and thus, they have the right to regulate their affairs.

Further Reading:
  1. Live Law News Network, Breaking: Devotion Cannot Be Subjected To Gender Discrimination, SC Allows Women Entry In Sabarimala By 4:1 Majority; Lone Woman In The Bench Dissents [Read Judgment], Livelaw (September 28, 2018).
  2. The Hindu Net Desk, SC allows entry of women of all ages to worship at Sabarimala, other places of their choice, The Hindu (September 28, 2018).
  3. Live: RSS Slams Kerala Govt for Implementing SC’s Sabarimala Verdict, The Quint (Last Updated on October 6, 2018).
  4. Charmy Harikrishna, Why women should have the right to enter Sabarimala, The Economic Times (September 4, 2018).
  5. K M Rakesh, Temple not to seek review of judgment, The Telegraph (October 4, 2018).
  6. Ashok Kini, Women Entry in Sabarimala: Past, Present and Future, Livelaw (October 6, 2018).
  7. G Pramod Kumar, Sabarimala verdict: How BJP, Congress and Left are all cashing in on judgment, The Indian Express (October 6, 2018).
  8. Do all women have a right to enter Sabarimala?, The Hindu (October 20, 2017).
  9. M A Deviah, Here's why women are barred from Sabarimala; It is not because they are 'unclean', Firstpost (January 15, 2016).
We thank Bhavisha Sharma and Vishal Rakhecha for their assistance in collating the data, and Benjamin Vanlalvena for designing this newsletter.
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