New Delhi: The Covid-19 pandemic necessitated a re-imagining of how access to justice, a key pillar in all democracies, can be ensured in the backdrop of an unprecedented health crisis. The virus pushed a serious Supreme Court into revolutionary changes to meet the persistent demands of justice. The Supreme Court departed from its history and attempted to mainstream technology, since March 23 the court hearings moved online.
Justices began hearing arguments by video conferencing, a momentous step for an institution, which has always been cautious and guarded its secrets. Technology began to serve as a platform for fiery arguments and courtroom’s give-and-take by lawyers, and paved the way for a renewed justice delivery system. In this year, largely impacted by the pandemic, the Supreme Court delivered some crucial judgments, which may play a significant role in the judicial history.
Permanent Commission for women in armed forces
In the beginning of the year, the Supreme Court delivered a strong blow at gender stereotype, as it granted permanent commission (PC) to women officers in army, navy and air force.
The top court junked the Centre’s argument that women were “physiologically weak” to be given PC and command appointments, and asked the government to look beyond the deeply entrenched gender stereotype, which positions man as a dominant being and casts a notion for women as caretakers. The series of rulings, beginning in February, quashed the 2019 circular, which foreclosed women officers’ chances to apply for PCs. The top court said to cast aspersions on women’s abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army – men and women – who serve as equal citizens in a common mission.
The top court directed the Centre to give PC to serving women officers, who completed 14 years in service along with pensionary benefits to those who retired on account of not being granted the commission. The top court said for command assignments women cannot be excluded completely and there should be case-by-case basis consideration. The top court said the delay in granting PC has caused “irreparable prejudice to the women officers”, and directed the Centre to grant permanent commission to women officers in the Army within three months.
Right to access to the internet equivalent to a fundamental right
In January, the Supreme Court said the right to access the Internet is a fundamental right, under Article 19 of the Constitution, by extension. The apex court observed that it is essential to distinguish between the internet as a tool and the freedom of expression through the internet.
The court directed the Jammu and Kashmir administration to immediately restore internet services connected with access to government websites, localised/limited e-banking facilities, hospitals services and other essential services. The ruling came on the petitions challenging the telecommunication blackout in the region, which followed the revocation of the Article 370.
The top court said non-recognition of technology within the sphere of law is only a disservice to the inevitable. In this light, the importance of the internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet, observed the court. However, the judgement did not mention any time-frame to restore internet services to other sectors and for the people in the region. The apex court observed that none of the counsels, involved in the matter, have argued for declaring the right to access the internet as a fundamental right and therefore we are not expressing any view on the same. “We are confining ourselves to declaring that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected”, said the court.
SC asks Parliament to ponder over powers of the Speaker
In January, the Supreme Court asked the Parliament to ponder over the powers granted to the Legislative Assembly Speaker, regarding the disqualification of MLAs, under the Tenth Schedule of the Constitution. The Supreme Court asked the Parliament to “seriously consider” establishing a permanent tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside independent mechanism, to examine disputes concerning disqualification of MPs and MLAs.
The top court ruling came on an appeal by a Congress MLA from Manipur, who challenged the delay by the Speaker in deciding a disqualification petition against another MLA who won on a Congress ticket but later switched to the BJP. The court emphasised that it is essential for the Speaker to decide on the matter within a reasonable time period, and recommended the disqualification petitions should be decided within three months.
SC takes suo moto cognizance of the migrant crisis during the Covid-19 lockdown
The Supreme Court initially exercised restraint in passing a strong order and expressed satisfaction at the steps taken by the government in the migrant workers’ matter. However, it shook off the hesitation and in May began hearing on its own on various issues connected with the problems faced by migrant workers, who began walking back on foot to their native places or were left stranded in different parts of country due the lockdown to contain the pandemic.
The top court conducted a series of hearings in the matter, where it heard detailed submissions by the Centre and state governments, and directed all migrant workers willing to return to their native places must be transported within a fortnight. The court ordered the state governments and Union Territories to register the migrant workers who have returned home – at the district and block levels – and provide employment opportunities to them. Since then, the top court has taken suo moto cognisance in important matters: proper treatment of Covid-19 patients and dignified handling of dead bodies in the hospitals; and spread of the infection in the child protection homes.
Amid Covid, fundamental right to health includes affordable treatment
In December, the Supreme Court said it is a war against Covid-19, which needs government-public partnership to make Covid treatment affordable for the common people. The top court emphasised that fundamental right to health includes affordable treatment. “Right to health is a fundamental right guaranteed under Article 21 of the Constitution of India. Right to health includes affordable treatment. Therefore, it is the duty upon the State to make provisions for affordable treatment and more and more provisions in the hospitals to be run by the State and/or local administration are made”, said a three-judge bench.
The top court noted that it cannot be disputed that for whatever reasons, treatment has become costlier and it is not affordable to the common man at all. Even if one survives from Covid-19, many times he is finished financially and economically.
The bench insisted that the state government and the local administration should ensure that a cap is fixed on the fees charged by the private hospitals, which can be in exercise of the powers under the Disaster Management Act.
Public spaces can’t be occupied by indeterminable number of people indefinitely
In a major verdict on petitions seeking removal anti-CAA protesters at Shaheen Bagh, the Supreme Court said it cannot accept that an indeterminable number of people can assemble whenever they choose to protest, and cited the distinction between the manner of dissent against the colonisers and the expression of dissent in a democratic system.
A three-judge bench said traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. “What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy,” said the top court.
Emphasising that protesters cannot block public roads and cause grave inconvenience to commuters, the top court said: “We have to make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.”
The court said it is the responsibility of the administration to keep public spaces free from obstruction, and the law enforcement agencies should wait for the court’s intervention.
Transfer of probe, into the death of actor Sushant Singh Rajput from Maharashtra government to CBI
The death of Sushant Singh Rajput was shrouded with mystery and it continues to remain so. In August, the Supreme Court ordered a CBI probe into the death of actor Sushant Singh Rajput and asked Mumbai Police to hand over all evidence collected so far in the case to CBI.
The top court noted that Mumbai police had registered only an accidental death report in connection with Rajput’s death, therefore it had limited investigation powers, whereas the case registered by Bihar police was a full-fledged FIR which has been already referred to CBI.
The apex court ensured that there was no confusion about CBI being the sole authority to investigate the mystery behind Rajput’s death and no other state police could interfere with it. The apex court order came on a plea by Rhea Chakraborty seeking transfer of FIR registered in Patna to Mumbai.
SC extends Arnab Goswami’s interim bail, saying deprivation of liberty even for a day is one day too many
In November, in a major relief for Republic TV editor Arnab Goswami, the Supreme Court granted him interim bail in a 2018 abetment to suicide case. The top court noted that it is deeply concerned if courts do not preserve human liberty and if constitutional courts do not protect liberty then who will, and “deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions.”
Arnab and two others were arrested in connection with the suicide of architect Anvay Naik and his mother. “Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting”, said the top court.
The bench, pulling up the Maharashtra government over Arnab’s arrest, said the victim is entitled to a fair investigation and the investigation should go on, but if state targets individuals on this basis then let a strong message go out. The top court said if constitutional courts did not interfere, “we are traveling the path of destruction undeniably”.
Under Domestic Violence Act, SC says woman can seek residence in shared households of husband’s relatives
In October, the Supreme Court held that a woman can seek right to stay in in-laws house under the Domestic Violence (DV) Act, where she lived for some time due to her relationship. The ruling has given a wider meaning to shared household in DV Act, as the woman facing domestic violence has a right to reside in a shared household, rented or owned by her in-laws, and cannot be compelled to move out, after she filed a complaint under DV Act.
The three-judge bench said domestic violence in this country is rampant and several women encounter violence in some form or the other or almost every day. However, it is the least reported form of cruel behaviour. The bench said in event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the said house will become a shared household.
In December, the Supreme Court said the Senior Citizen Act 2007, cannot be interpreted or deployed to evict a woman from her shared household, which she is otherwise entitled under the Protection of Women from Domestic Violence Act. “Section 3 of the Senior Citizens Act, 2007 cannot be deployed to override and nullify other protections in law, particularly that of a woman’s right to a shared household under Section 17 of the PWDV (protection of women from domestic violence) Act 2005”, said the top court.
SC fines lawyer Prashant Bhushan by Rupee 1 in contempt case for tweets against the judiciary
On 31 August, the Supreme Court imposed a fine of Rs 1 on advocate Prashant Bhushan, convicted in a contempt case for tweets against the judiciary. The court said in case if he fails to deposit the penalty by September 15, then he would have to undergo 3-month imprisonment.
On August 25, a three-judge bench had reserved the order on the sentence, after Bhushan declined to apologise for the tweets. Pronouncing the judgement, the bench said freedom of expression is there, but rights of others should also be respected, and the conduct of the contemnor also needs to be taken into consideration. The bench observed that Bhushan also gave wide publicity to the supplementary statement submitted in the court, where he refused to express regret for the tweets against the judiciary.
Bhushan deposited the fine but also sought intra-court appeal to challenge his conviction, and this plea is pending in the top court.
(Sumit Saxena can be contacted at [email protected] )