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2023 awaits judgments likely to impact govt’s decision-making process

The cases on which the judgments are due include the appointment of election commissioners, conduct and utterances of the people holding public offices, pandering to the interests of a section of people by amending the laws restoring the bull centric sport.

Pramod Kumar | New Delhi |

A number of judgments that may impact the government’s decision-making process – including the appointment of election commissioners, conduct of the people holding public offices including their utterances, pandering to the interests of a section of people by amending the laws restoring the Bull centric Jallikattu, bulls and bullock-cart races in Tamil Nadu, Maharashtra and Karnataka – are expected as Supreme Court resumes its working on January 2, 2023, after a two-week winter vacation.

These are the matters on which hearings by the five-judge constitution benches were held and orders reserved last year (2022).

The first to be pronounced on January 2 will be on the challenge to the Modi Government’s November 8, 2016, decision to demonetise the currency notes of Rs 500 and Rs 1000 denominations taking recourse to Section 26(2) of the Reserve Bank of India Act. In the course of the hearing, the apex court had even asked the Centre if it intended to bring a separate law to deal with demonetisation.

Initially, the court was reluctant to hear the matter as it felt that nothing survived in the challenge to the 2016 decision, with the Central government stating that the entire matter was only of academic interest. The Centre had also argued that since the issue before the court was a policy decision having fiscal contours, there was limited scope for the court to intervene.

However, the constitution bench embarked on hearing the challenge to the demonetisation decision after lawyers, particularly senior advocate and former Finance Minister P Chidambaram flagged the issues that needed to be adjudicated by the court including the legal regime that was taken recourse to by the government for arriving at the decision.

Another judgment that is being awaited relates to the issue of reining in the people holding public offices making irresponsible statements prejudicial to the instrumentalities of the state apparatus.

Reserving its order on the issues referred to it by an earlier five-judge bench, a five-judge constitution bench had on November 15 said that the people holding public offices must exercise restraint in making statements and desist from making disparaging remarks hurting others.

The court had said that maintaining of this restraint must be inculcated in the political and social set-up.

The issue is rooted in the then Uttar Pradesh Minister Azam Khan’s remarks alleging conspiracy to run down the then Akhilesh Yadav’s government in the alleged gang rape of a minor girl and her mother on the national highway near Bulandshahr while they were on their way to their ancestral village on July 29, 2016.

The petitioners had contended that Jallikattu, bullock-cart race and Kambala were cruel to bulls as they were inflicted with pain and injuries.

These amendments by the three states were brought in their respective laws to overcome the May 7, 2014 Supreme Court judgment banning Jallikattu.

The court in 2014 had spoken about conferring five rights on the animals recognised by the World Health Organization of Animal Health (OIE) in their guidelines.

These five rights included i) freedom from hunger, thirst and malnutrition; ii) freedom from fear and distress; iii) freedom from physical and thermal discomfort; iv) freedom from pain, injury and disease; and v) freedom to express normal patterns of behaviour.

The catch in these amendments, restoring Jallikattu bullock-cart race and bull-race of Kambala, is that they have been linked to tradition and cultural heritage of the people thus entitling it a shield of Article 29(1) of the constitution.

Though the hearing of these matters is rooted in 2022 but their judgments will come in 2023.

In a significant pronouncement in 2022, a constitution bench held that a public servant can be convicted for corruption based on circumstantial evidence.

The constitution bench had ruled that “This (allegation of corruption) can be proved either by direct evidence in the nature of oral evidence or documentary evidence. Further, the fact in issue, namely the proof of demand and acceptance of illegal gratification, can also be proved by circumstantial evidence in the absence of direct oral or documentary evidence.”

On the 10 per cent reservation for Economically Weaker Sections (EWS) of forward classes, the Supreme Court had by a majority of 3:2 upheld the constitution’s 103rd amendment providing for EWS reservation describing it as an affirmative action, not violative of the basic structure of the constitution and did not offend the equality code by excluding SC/ST and the OBC for its ambit.

The two-judge bench of the apex court was divided on Karnataka government’s ban on wearing of Hijab by Muslim girls in educational institutions. It witnessed a split verdict with two judges differing on the issue of ban. The split verdict had come on a challenge to Karnataka High Court judgment upholding State government’s ban on Muslim girls wearing Hijab in the government schools and educational institutions.

Release of 11 convicts in March 3, 2002 gangrape of Bilkis Bano and murder of 7 members of her family including her three-year-old daughter during post Godhra Gujarat riots, based on May 13, 2022, top court judgment, created an uproar in the social media and amongst the women right activists.

Though Bilkis Bano’s plea seeking review of May 13, 2022, judgment has been rejected, the petitions including by Bilkis challenging the pre-mature release of 11 convicts on August 15 is still pending adjudication by the top court.

There are matters which were decided in 2022 and some awaiting verdict in 2023, but there are some that awaits hearing by the constitution bench for a long time that includes row between Delhi government and the Centre over the control over the transfer and posting of bureaucrats serving under Delhi government, and challenge to the abrogation of Article 370 that had conferred the special status to J&K and the Jammu and Kashmir Reorganisation Act, 2019, bifurcating the erstwhile state of Jammu and Kashmir into two Union territories.

The row between Delhi government and the Centre over the control over the transfer and posting of bureaucrats serving under Delhi government is now directed to be listed for hearing ON January 10.

Besides this, other matters awaiting hearing includes 232 petitions including PILS challenging the constitutional validity of the Citizenship (Amendment) Act, 2019, that paved the way for the grant of citizenship to to Hindus, Sikhs, Christians, Parsis, Buddhist, Jains, who had come to India to escape religious persecution in Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.

Coupled with this is hearing on challenge to the constitutional validity of Section 6A of the Citizenship Act that was incorporated by an amendment in 1985 in pursuance to the Assam accord for granting citizenship to the migrants from Bangladeshi who had crossed over to India before March 25, 1971.

All these matters were pending hearing till then Chief Justice Uday Umesh Lalit dusted them out and constituted five constitution benches of five-judges each to hear them. A task which many of his predecessors shied away from addressing and CJI Lalit did in his short tenure of 74 days, which effectively meant 52 days as 22 days were holidays on account of Ganesh Chaturthi, Dussehra, Diwali, Guru Nanak birthday holidays and the weekends.

In a situation that does not appears to be as promising when it comes to individual freedom and liberty and which found expression by none other than super star Amitabh Bachchan at Kolkata International film festival, the silver lining was when Chief Justice of India, Justice D.Y.Chandrachud had in an open court declared, “What are we here for, if we do not act in matter of personal liberty and grant relief.”