(Source: BloombergQuint)

The Year That Was, In The Supreme Court Of India


In a year that saw three Chief Justices sit at the helm of the judiciary, the Supreme Court saw significant developments in the realm of fundamental rights of citizens, the law relating to the administrative machinery of the country, and several issues of importance to the corporate world.

Privacy Becomes A Fundamental Right

The right to privacy is a hot topic all over the world in light of the enhanced capacity of technology to collect, store, analyse and disseminate personal data down to the minute aspects of day to day life. Though the Constitution of India does not expressly protect the right to privacy, a nine judge bench of the Supreme Court in Justice KS Puttaswamy v. Union of India unanimously held that the right to privacy is a fundamental right under the Constitution of India.

The case arose out of a challenge to the Aadhaar scheme. M.P. Sharma v. Satish Chandra and Kharak Singh v. State, judgements of the Supreme Court rendered several decades ago, contained some observations that the right to privacy was not recognised under the Constitution. However, later, in Gobind v. State, the Supreme Court had affirmed the right to privacy. The Supreme Court in 2017 evaluated these and other judgments at length and held that there indeed is a right to privacy guaranteed by the Constitution of India. In doing so, not only did the Supreme Court overrule MP Sharma and Kharak Singh judgments mentioned above, but also overruled its previous judgment in ADM Jabalpur v. Shiv Kant Shukla where it had been held that the fundamental rights would be suspended during a period of emergency. The Court also held that it disagreed with the manner in which right to privacy of LGBT persons was dealt with in Suresh Kumar Koushal v. Naz Foundation, where Section 377 of the Indian Penal Code, which inter alia criminalises sexual acts between consenting adults of the same gender, had been upheld.

Not only will the Justice Puttaswamy judgment have a significant impact on the challenge to the Aadhaar scheme, scheduled to be heard by the Supreme Court in January 2018, but has also set a new benchmark in civil liberties of citizens and will influence several decisions in the years to come.

Politics And Politicians

Section 123(3) of the Representation of People Act prohibits a candidate from seeking votes from a voter on “the ground of his religion, race, case, community or language”. The question then was whether the word “his” in this clause referred to the religion of the candidate alone or that of the voter as well.
In Abhiram Singh v. CD Commachen a seven judge bench of the Court by a majority of four judges, held that the law sought to keep appeals to religion, caste etc. out of the electoral process and hence the “his” referred to the voter as well. However the dissenting judges held that if a person contesting elections is prohibited from speaking of injustice faced by sections of society on the basis of religion or caste, it would prevent the social mobilization of marginalised groups and hence gave a narrow interpretation to the word “his”. The practical difference, if any, between the two scenarios may be seen from the following two statements: “I am of X community. I will help you. Vote for me” and “members of X community have faced injustice. I will remedy this. Vote for me.”

The interpretation of “his” by the majority would prohibit both statements and the minority opinion would prohibit only the first statement.

One case that troubled Jayalalithaa, the former Chief Minister of Tamil Nadu, was a charge of amassing wealth disproportionate to known sources of income, during her first term as Chief Minister, from 1991 to 1996. The case, that had a long and chequered history, came to a conclusion in State of Karnataka v. Jayalalitha. Associates of Jayalalithaa were convicted. Jayalalithaa passed away on December 5, 2016 before the judgement was pronounced and hence the Court held that the criminal appeal by the state, as against her, abated.

The demolition of Babri Masjid in Ayodhya, which continues to cast a dark shadow on present day politics, was again brought to public attention in 2017 not only by the hearing of the civil case relating to the title of the land on which the mosque stood but also because of the restoration of conspiracy charges against several political leaders including LK Advani, Uma Bharti, Murli Manohar Joshi in CBI v. Kalyan Singh. However, Kalyan Singh, being the Governor of Rajasthan at present was held to be entitled to immunity under Article 361 of the Constitution till such time as he remains Governor. The Court also directed that the sessions court should complete the trial in two years.


The problem of non-performing assets has plagued the Indian financial sector for a while now. In the last couple of years, it has grown to alarming proportions prompting the government to take measures to bring it under control. One such measure was the introduction of the Insolvency and Bankruptcy Code.

The Supreme Court delivered some important judgments on this nascent legislation which delineated the scope of the Code and resolved some key issues.
In Innoventive Industries ltd. v. ICICI Bank the Supreme Court explained the scheme of the Code at some length and held that it will prevail over other legislations operating in the same field.
Later, in Mobilox Innovations Ltd. v. Kirusa Software Ltd., the Court held that when a company resists a petition by an operational creditor under the IBC on the ground that there is an “existing dispute” the adjudicating authority is required to see whether “there is a plausible contention which requires further investigation and that the “dispute” is not a patently feeble legal argument or an assertion of fact unsupported by evidence...”. Considering the requirement under Section 8(2) of the Code that the debtor should show the existence of the dispute “and” the record of pendency of the suit or arbitration proceedings filed before the receipt of notice, the Court held that the word “and” in the provision must be read as “or”. In Macquarie Bank v. Shilpi Cable the Court clarified that the demand notice for triggering insolvency proceedings may be issued by the creditor’s lawyer on its behalf. The Court also clarified that the requirement of a certificate from the financial institution maintaining the accounts of the operational creditor to the effect that there is no payment of the operational debt by the corporate debtor is not mandatory.

It is a running joke among lawyers that the Insolvency Code has become the new Negotiable Instruments Act as the most effective method of money recovery.

The Supreme Court in Lokhandwala Kataria v. Nisus Finance and Investment had exercised its extraordinary power under Article 142 of the Constitution to allow a settlement between the parties after the admission of a petition under the IBC while affirming that the inherent power under the NCLAT Rules, did not permit the appellate tribunal to exercise its jurisdiction to the same effect. As a result, other cases where the parties had reached a settlement after the matter was admitted under the IBC, approached the Supreme Court for resolution of dispute. The Supreme Court in Uttara Foods v. Mona Pharmachem recognizing this problem, recommended that the rules be amended to confer such inherent powers to the NCLAT.

Personal Law

Among the sensitive judgements of the Supreme Court this year was, Shayara Bano v. Union of India. A five judge bench considered the validity of the practice of triple talaq and by majority held that legal recognition of the practice could not be permitted. The Court in some judgments had previously held that a legislation could be held invalid only on grounds of violation of provisions of the Constitution or if the legislature concerned is not competent to enact a statute in that particular field.

The majority in Shayara Bano overruled that principle and held that a legislation could be held to be invalid on the ground of arbitrariness alone.

The Court in Krishnaveni Nigam had directed that in a matrimonial dispute when parties reside in different jurisdictions, the court ought to use video conferencing facility, where available, for conduct of the trial and parties should not approach the Supreme Court for transfer of the case. However, in Santhini v. Vijaya Venkatesh a three judge bench overruled Krishnaveni Nigam on this point and held that video conference is not mandatory instead of transfer petitions arising out of matrimonial matters. The dissenting opinion in Santhini is of note as it stated that courts should embrace new technology and adopt them to the fullest.

Government and Governance

Ordinances are an extraordinary power given to the executive to bring about a law while the legislature in not in session. However, this power has often been used by various governments as a way to bypass the parliament altogether. While this practice has been decried in the past, the Supreme Court took a definitive step against such practices in Krishna Kumar Singh v. State of Bihar where it held by majority, that an ordinance necessarily must be placed before the legislature and repromulgation of ordinances is a fraud on the Constitution.

The Court also held that it may enquire into the satisfaction of the President or Governor which is required for issuance of an ordinance.

In TP Senkumar v. Union of India, the Court dealt with the transfer of the Director General of Police of Kerala. The Kerala Police Act, 2011 enacted pursuant to Prakash Singh’s case provided for such transfer if the government is satisfied that the general public is dissatisfied with the efficiency of police in the officer’s jurisdiction. The Court held that such subjective dissatisfaction should be based on some relevant material. No such material being found in this case, the Court ordered that the DGP be reinstated.

Courts And The Courtiers

The case of in re. Justice C.S. Karnan is noteworthy. A bench of the seven senior most judges of the Supreme Court dealt with the issue of a sitting judge of a High Court who had repeatedly made allegations against other members of the judiciary. Holding his actions to be “grossest and gravest… …contempt of court”, and contempt in the face of the Court, the Court punished him with imprisonment for six months.

Designation as a senior advocate is the holy grail for litigators. However, it was felt by many that the system for designations was not fair and gave rise to several dubious practices. A petition by Senior Advocate Indira Jaising sought transparency in the system for designation of Senior Advocates.

The Court introduced a new system for designation involving a committee headed by the Chief Justice to evaluate eligible candidates.

In Techi Tegi Tara v. Rajendra Singh Bhandari, the Supreme Court held that the National Green Tribunal, though empowered to decide substantial questions of law related to the environment, was not empowered to hear matters relating to appointments of members the State Pollution Control Boards (SPCB). Hence the Supreme Court set aside an order of the NGT which had effectively stopped the functioning of the SPCB chairpersons for failure to appoint members.

Crime And Criminals

The Indian Penal Code provides an exception to the offence of rape, stating that intercourse by a man with his wife is not rape, if the wife is not less than 15 years of age. In Independent Thought v. Union of India an NGO challenged this provision pointing out the anomaly that under the Protection of Children from Sexual Offences Act, sexual intercourse with a girl child below 18 years of age, would amount to rape, irrespective of consent. The Court recognizing the right to bodily integrity and reproductive choice of the girl child, read down the exception to apply only to women above 18 years of age.

The Court was careful to mention that it is not expressing any opinion on the exception of marital rape in general which is pending consideration of the Courts.

In Mukesh Singh v. NCT of Delhi the Supreme Court confirmed the death penalty to the accused in the Nirbhaya rape and death case. The Court described the incident as having caused a “tsunami of shock”. The concurring judgement proposed several positive measures including changes to the school curriculum to inculcate gender equality and awareness.

The case of Asha Ranjan v. State of Bihar involved the transfer of Shahabuddin a former member of parliament and political leader who was accused in the murder of the husband and sons of the petitioner. The Court found that the accused was a history sheeter and person of considerable influence in the locality, and sought to balance the safety of the petitioner with the right of the accused to a fair trial. Holding that fair trial did not mean a fair trial as per the choice of the accused, the Court directed that the accused be transferred to Tihar jail in Delhi and the trial be continued by video conference.

Vikram Hegde is an advocate practicing in the Supreme Court of India.

The views expressed here are those of the author’s and do not necessarily represent the views of BloombergQuint or its editorial team.