Rafale to Oxytocin: 8 Cases to Follow in SC – And Why They Matter

On 1 July, the Supreme Court of India reopened after a 49-day summer break. While vacation benches had continued to deal with urgent (and sometimes not so urgent) matters during this time, the months leading up to the recess had seen a huge number of important cases being argued at the court – which will now need to be taken up again.

These include cases where the arguments are already over, but the judges need to pronounce their decision (like the Rafale and Sabarimala review cases), as well as those where the arguments still need to take place (like the electoral bonds case).

Here are the cases and judgments to look out for in the weeks to come – and why they matter for you and the country at large.

• On 1 July, a Supreme Court bench headed by Justice SA Bobde said it would begin hearing the petitions challenging the constitutionality of the 10 percent EWS reservation from 16 July onwards. The reservation was introduced through the Constitution (103rd) Amendment Act 2019 in January this year.
• The petitions argue that this reservation, which applies to educational institutions and government jobs, violates the basic structure of the Constitution, which they argue does not contemplate reservations purely on the basis of economic status. The petitions also argue that the new reservation violates the 50 percent cap set by the Supreme Court in the 1992 Indira Sawhney case.

• While some may welcome this new reservation as a way to ensure the underprivileged are able to get the benefits of reservations, regardless of their caste, this does not appear to be something contemplated in the Constitution, which allows for reservations on the basis of being a member of a historically oppressed community.
• This does not automatically mean it is not possible to amend the law to allow the reservation, as amendments to the Constitution are allowed provided they don’t violate its ‘basic structure’. But what happens if the court says that these kind of reservations can be allowed despite not being tied to historical oppression? Will that mean the end of caste-based reservations, despite the continuation of casteism? Will that open the door to further reservations to curry favour with different electorates, with less restrictions on central and state governments?
• Further issues can be gleaned from the Centre’s sample certificate to avail of the quota. The income limit for availing of EWS quota is Rs 8 lakhs, which will lead to an inordinate number of people being eligible for it. The certificate also requires a person to specify their caste, and they cannot be SC/ST/OBC. This means people belonging to those communities cannot apply for the EWS quota even if they do not attempt to use any other quota, and could make it difficult for non-Hindu communities to apply.

• In September 2018, a Constitution Bench of the Supreme Court (by a 4:1 majority) held that the restriction on women between the ages of 10 and 50 from entering the Sabarimala temple was discriminatory and unconstitutional. As a result, they directed the Kerala government to ensure that women of all ages were able to enter the temple.
• The Travancore Devaswom Board and other devotees filed review petitions against the judgment, arguing that constitutional morality and the standards applied by the judges should not be applied in matters of faith. They argued that the restriction was part of the essential practice at the temple, to protect the celibacy of the resident deity. The Kerala Government opposed the review petitions.

• The fate of this case is important for two reasons. First, it will decide whether or not discriminatory practices against a gender can get the protection of essential religious practices. This has implications not just for Hindu practices, but those of other religions as well, and could have a significant impact on gender justice cases brought before the higher judiciary.
• Secondly, it is a big test of the Supreme Court’s own resolve and ability to enforce its orders. Its direction for women of all ages to be allowed inside the temple was defied by devotees at the temple for weeks, and led to significant security problems in the state, before entry of all women became a reality. It may have also played a major role in the rout of the CPI(M) in the Lok Sabha elections from the state.

• Back in December 2018, a three-judge bench of the Supreme Court headed by CJI Ranjan Gogoi had said that they saw no reason to interfere in the Modi government’s deal for 36 Rafale Aircraft, as all the procedures were broadly followed.
• Review petitions were filed against the December 2018 verdict, which alleged that the Centre had misled the court during the earlier proceedings. To support this, articles published in the media, including ones by The Hindu’s N Ram about parallel negotiations by the PMO, dropping of anti-corruption clauses, etc were submitted.
• After several delays, the same bench of the apex court heard the arguments for and against review of their original judgment, and reserved their decision on 10 May. The judgment is expected soon after the court reopens.

• Regardless of political affiliation, there are serious questions that need to be answered not just about the abandonment of procedures when it came to the negotiation of the deal (which raises concerns over the rule of law, even if not corruption), but also about the conduct of the central government during the original proceedings.
• During the review proceedings, Attorney General KK Venugopal admitted that the documents on parallel negotiations, etc were genuine, but argued against their use because they were “stolen”. Such documents should have been revealed by the government to the court in the first place – we need to be concerned if our government is withholding crucial information from the courts.
• A contempt petition was filed against Rahul Gandhi for misrepresenting the court’s interim order allowing the use of the “stolen” documents in February 2019. The court’s verdict on this contempt claim will be pronounced at the same time as the reviews. Since the court has pressed on with this despite an eventual apology from Gandhi, it could be an important test case to see if the courts are going to crack down on politicians making misleading statements about court decisions to score political brownie points.

• The CPI(M) and NGOS’s Common Cause and Association for Democratic Reforms (ADR) filed petitions in the Supreme Court challenging the constitutionality of the anonymous electoral bonds scheme.
• The Centre has defended the scheme as a means to combat black money. However, the Election Commission, which had advised against the scheme fro mthe start, submitted an affidavit in court arguing that the scheme was a “retrograde step as far as transparency in political funding is concerned”, and argued it could lead to more black money entering the system through shell companies.
• In April, the Supreme Court refused to stay the sale of electoral bonds, but directed political parties to submit the details of all donations received through them from the first sale in January 2018 till the present by 30 May 2019, in a sealed cover. This information will not be released to the public.
• This matter is expected to come up in July for hearing.

• The combination of the anonymity of electoral bonds and the dilution of disclosure requirements for political parties and corporates means that thousands of crores can be funneled into political parties in India without us knowing where they are coming from. At the outset, this move is obviously a blow to transparency and accountability, which is never a good thing for governance.
• The funding received by political parties plays a major role in their policy-making, and ensuring that the public can’t scrutinise the sources of funding means we will never fully understand the motivations behind politicians. This is a violation of the right to freedom of expression of Indian citizens, as they have a right to this information when deciding who to vote for, as has been held by the courts in the past.
• There is also an information asymmetry when it comes to these bonds. While they are supposed to be anonymous, the government can actually track and see who has purchased each electoral bond, including those encashed by rival parties, thanks to the secret number on the bonds that is revealed only under UV light, as revealed by The Quint’s Poonam Agarwal.
• An obvious consequence of this asymmetry is that the majority of the bonds will go to the ruling party to avoid repercussions, and this was already borne out by the BJP’s receipt of 95 percent of the value of the electoral bonds sold in 2017-18. This impacts the level-playing field in electoral politics and has serious consequences for free and fair elections.

• In April 2018, the central government imposed a ban on the manufacture and sale of oxytocin by private companies, as well as its import, and only allowed a single public sector company, Karnataka Antibiotics and Pharmaceuticals Ltd (KAPL) to do so. Oxytocin is a hormone which is considered a life-saving drug for pregnant women, because it induces labour and controls bleeding during child birth.
• The ostensible reason for this ban is that oxytocin is misused in the dairy industry, and that it is used as a growth booster to accelerate puberty among trafficked children.
• In December 2018, the Delhi High Court quashed the Centre’s decision as arbitrary and unreasonable. The Centre filed an appeal in the Supreme Court against this decision, which will be coming up before the apex court now that the vacations are over.

• While this may seem a bit out of left field, the case has significant implications. It is essential that there are sufficient stocks of oxytocin for pregnant women to save lives. Government data suggests that 130 women per 100,000 live births die in India, thousands of whom die because of bleeding during child birth.
• KAPL’s ability to manufacture and maintain sufficient stocks of oxytocin is extremely doubtful, as the Delhi High Court noted. The court also found that the government decision was “unscientific” and doubted the Centre’s claims of misuse of oxytocin. In any case, as the Indian Medical Association has argued, there are sufficient safeguards to prevent the kind of misuse alleged by the government.
• There is an urgent need to ensure that decisions about crucial drugs like this are taken properly, in consultation with experts and the medical community, and in a scientific manner. The government cannot ban private manufacture drugs like this (which don’t even fall within the kinds which can be restricted to public companies) without good reasons, and it is essential that the court issue guidance to prevent this.

• The apex court is hearing appeals against the 2010 judgment of the Allahabad High Court that had divided the site (on which the Babri Masjid used to exist before it was demolished by Hindu kar sevaks in 1992) in three parts – two-thirds to Hindu organisations, and one third to the Sunni Waqf Board.
• In March 2019, the judges referred the matter to mediation by a three-member panel of retired Supreme Court Justice Kalifullah, Sri Sri Ravi Shankar of Art of Living fame and senior advocate and mediation specialist Sriram Panchu. The panel was initially given eight weeks to arrive at a mediated solution, but following reports of progress, this deadline has been extended to 15 August.

• The eventual decision in this case has obvious ramifications for communal harmony in India. If either community gets a larger share than the other, it could lead to polarisation and security issues across the country, particularly for the Mulsim community as a minority. On the other hand, if the mediation actually works, it could provide a roadmap for dealing with such tensions in the future.
• While this case does not deal directly with the demolition of the Babri Masjid, what happens here is also an indirect indictment of the rule of law in the country. Regardless of political affiliation, there should be no acceptance of the violence and destruction that took place on 6 December 1992, and the forceful occupation of the property by groups like the Nirmohi Akhara many decades before.
• If such tactics can result in an organisation getting property rights to this site, it would send a message that such tactics can be used to take over other ‘disputed’ property as well, which is not just a blow to religious rights, but also to the rule of law.

• Article 35A of the Indian Constitution empowers the Jammu and Kashmir state legislature to define who are the state’s “permanent residents”. It also lets the state legislature decide what special rights and privileges permanent residents will have.
• This has allowed the J&K assembly to prohibit non-permanent residents from acquiring immovable property like houses or land, from getting government jobs and from being eligible for government aid.
• Several petitions have been filed arguing that Article 35A is unconstitutional, on the basis that it was added to the Constitution by a Constitution Order in 1954 and was therefore not approved by Parliament, that it discriminates against people from outside J&K, and that it discriminates against women.
• These petitions were supposed to have been heard last year, and the BJP promised in its manifesto to abrogate Article 35A, so it looks like it will be difficult to postpone them much longer.

• The status of Article 35A is a major flashpoint for J&K, with all regional parties including Mehbooba Mufti’s PDP and Omar Abdullah’s National Conference making it clear they would oppose any attempt to strike it down.
• The provision was added to reflect the terms of J&K’s accession to India, as negotiated in the Delhi Agreement of 1952. For this to be struck down would appear to be a violation of those terms of accession, and would give a fillip to separatism in the state, and cause more violence.
• Article 35A was an enactment under Article 370 of the Constitution, which expressly allowed for exceptions and modifications to be made to the applicability of the Constitution to J&K. Some have argued that this was only meant to be a temporary provision but this argument was dismissed by the J&K High Court and even by the Supreme Court.
• A debate over Article 35A will also necessarily reopen the case on Article 370, and which will also stoke tensions in the state since it would mean India was reneging on its promises to J&K, which were preconditions for its accession to India in 1947.
• If Article 35A is struck down, it could enable people from other parts of India to purchase property in J&K, allow them to run businesses there and potentially change the demographic nature of the state.

• Were the sexual harassment allegations against CJI Ranjan Gogoi part of a conspiracy by disgruntled former employees, a judgment fixer, and a shadowy corporate figure? That is what was alleged by advocate Utsav Bains soon after the allegations against the CJI were made public on 20 April.
• CJI Gogoi had already constituted a special bench to look into what he considered a threat to the independence of the judiciary. This bench considered Bains’ claims serious enough to warrant an investigation by retired Supreme Court Justice AK Patnaik, ordered on 25 April.
• Justice (retd) Patnaik’s investigation is ongoing – on 3 June he asked for more information from the CBI, IB and Delhi Police, and said he would work on the matter in July. Whenever his report is ready, it will be submitted to the court which will take up the case again.

• The manner in which the allegations of sexual harassment against CJI Gogoi were dealt with was extremely inappropriate, regardless of whether or not the allegations were true. From the CJI’s usage of the court as a platform to defend himself, to setting up a bench to look into these conspiracy claims before setting up a committee to investigate the harassment claims, to the way in which the inquiry committee treated the woman complainant, procedure and basic principles of natural justice were consistently ignored.
• The conspiracy angle, played up first by the CJI himself without an iota of evidence, has not been supported by anything except Bains’ claims. The alacrity with which this was taken up, despite numerous procedural irregularities, was unseemly. This appears to indicate the judiciary is more concerned with protecting itself than investigating allegations of misconduct, and is willing to abuse process to let this happen. If the investigation by Justice Patnaik finds the claims to be unsubstantiated, the judiciary has a lot of soul-searching to do for crying wolf like this.
• On the other hand, if the allegations turn out to be true, then that is equally explosive, and will need a proper investigation to weed out these threats to the judiciary.