A Glance into The Legal Victories of the Year The year of 2018 can easily be earmarked as the one of the most judicially vibrant year that the country has seen. While developments from the High Courts, specialized tribunals and regulatory bodies spread across the country were numerous, it was the Supreme Court that made the loudest sound. It was a year characterized by challenges that would go on to invigorate social change, elevate women rights, equality and most of all take the direction of public interest.
As the word goes, public interest is anything done in lieu of offering an advantage to the public – The Common Man; an action or series of steps undertaken to empower the common man in a certain situation one might say. While it is common for the legal system to adjudicate on cases that are personal in nature such as marital and family disputes, the year witnessed this on a larger canvas where it dealt with issues such as constitutional and individual privacy, constitutional right to sexual orientation, validity of adultery law etc. With issues ranging far and wide, the litigation across forums delved into issues impacting the day-to-day life of a person such as air pollution, water shortage and carrying food items inside multiplexes.
This year might have started slow but, as the months went by, the Supreme Court had achieved social change that would reflect in people’s lives for years to come. All in all, it was a year of hyper activity, excessive workload at each forum with results focused in the same direction – to serve the common man when he knocks the courts’ doors.
We take you through some of the most contentious legal and regulatory developments and the extent to which they cater to protecting the public interest.
Since its inception, the word Aadhaar had become much more than a 12-digit identification number for the public. The Centre which led the Aadhaar scheme with it being an exclusive number assigned to a person who could use it to avail central and state’s welfare benefits such as PDS, LPG, and MGNREGA, later metamorphosed into a ball of confusion. What began as a tool for identification alone spiralled and leapt into an unimaginable direction with everybody wanting a chunk. While the Supreme Court was vested of the matter and was in its capacity conducting marathon hearings, it was not uncommon to be bombarded with calls and messages from telecom companies, travel companies, fintechs, online shopping forums such as PayTM, Amazon, Flipkart asking with utmost authority to opt for Aadhaar based authentication.
On one hand the public was reading media reports from the top court about how such linking was not mandatory till a final decision was taken on the issue, while on the other, private companies continued to threaten the public and went as far as discontinuing services for failure to link Aadhaar in such time. The rigmarole continued until 26 September with the Supreme Court validating its constitutionality and setting straight the record on its limited scope. As the top court restricted private companies from mandatory Aadhaar linking by striking down parts of Section 57 of the Aadhaar Act, people were at relief and they gained more autonomy in taking decisions in their lives that were dictated by Aadhaar based linking.
There are numerous rape cases that became weak due to witnesses turning hostile. This is due to factors such as the fear of constant threat to their lives, lack of adequate protection by the state etc. While the Supreme Court was hearing a case related to rape allegations against godman Asaram Bapu, when it was informed about witnesses disappearing and instances of them being attacked, it asked the Centre for enacting a scheme to afford greater protection. The Centre’s draft was approved in November and will be in place till a law to that effect is finalized. Such a step would not only go a long way in protecting the witness, who is the ear and eyes to the complainant and plays a great role in bringing the perpetrators of crime to justice, it would revitalize the way the system treats them. The draft of the Witness Protection Scheme, 2018 which is an attempt to holistically address the issue of inadequate protection to witnesses will go a long way in reforming the criminalization system in the country. For starters, a person who decides to depose in a sensitive or controversial case as a witness will feel secure and further the cause of judicial dispensation in a safe environment. This will start to reflect in the adjudication of the case.
Ahead of Diwali and owing to the unfortunate state of air pollution in Delhi and NCR, the judiciary stepped in to save the situation the best it could in the limited time that it had. It restricted the time of bursting crackers to two hours on days of festival such as Diwali, Christmas, weddings etc and called for community celebration to lessen the damage. After a plea by the Tamil Nadu government, the court also allowed the State Govt.’s flexibility in choosing their time slots on such days. While trying to strike a balance between protecting the public from alarming levels of air and sou nd pollution and the right of livelihood of cracker manufacturer’s, it chose to introduce the use of green crackers that would be environment friendly and less harmful. Such preventive steps restore public confidence and serve as corrective measures for the years to follow.
The judicial system is regarded as the highest temple of justice whose gates one can knock in troubled times. The legal system of courts is one that is however, strong walled against the common man who is left in a lurch on its daily developments. As ironical as that may be because day in and day out the judicial system caters to working towards public interest and here it fails. This leaves the public who are at the receiving end of numerous issues decided by the courts with no option to follow their progress except relying on media reports. In this year itself, contentious issues affecting a large population such as Aadhaar’s constitutional validity, Section 377, adultery law were heard day after day, but watching the arguments of both sides was non-optional to the common man.
In a bid to address this and afford greater transparency, the Supreme Court this year approved a plan for live streaming of court proceedings of cases of national and constitutional importance. The Centre is expected to frame comprehensive and holistic guidelines that could be implemented on an experimental basis. Following this, the project will be carried out in phases. The move is pivotal as it will not only accord greater accountability by judges and lawyers, but it will open a window for the public through which they will be able to track the progress of cases that affect them and the nation as a whole.
The rights of the LGBTQ community were in question since the year 1994, when the first case challenging the constitutional validity of Section 377 that criminalized homosexuality was filed in the Delhi High Court. Even though the legal channel had opened up, the members of the LGBTQ community had to face discrimination, oppression and they were ostracized at the hands of the society and state for the years between then and 2018, when the record was set straight. On 6 September, the Supreme Court struck down the controversial Section 377, legitimizing same-sex relationships and signaled an end to years of prejudice being faced by the LGBTQ members. This will go a long way to cater to the members of the LGBTQ community who have by virtue of this action found a new voice and have been handed a refreshed version of their everyday lives. It will also enable them to exercise the basic rights under the Constitution which they before could not and live a life free from discrimination.
One can expect tighter standards in the law against those convicted of rape of children as a new law, providing for stringent punishment including death penalty has received the President’s assent after he approved the suggested amendments. The Criminal Law (Amendment) Act, 2018 replaces the criminal law amendment ordinance promulgated following the rape and murder of a minor girl in Kathua and another woman in Unnao. According to the new law, the minimum punishment in case of rape of minor women has been increased from imprisonment of seven years to ten years, extendable to life imprisonment. Similarly, in case of rape of a girl who is below 16 years, the minimum punishment has been revised from 10 to 20 years, extendable to life imprisonment. The newly adopted law also provides for speedy investigation and trial in such cases and lays down a time frame of 2 months within which trials must be wrapped up. This move was long awaited and will go a long way in guaranteeing a safe and sheltered world.
The year has seen various benches of the apex court working rigorously to protect the rights of thousands of home buyers who fall in the middle- and low-income group and have been duped by real estate majors such as Amrapali, Jaypee and Unitech group. Taking a tough stance towards these real estate giants and their leaders, this has come as a reprieve for stranded home buyers who were promised a home that has not been delivered to them in time. There have been numerous orders passed from time to time which these companies have tried to circumvent and in instances even mislead the court but, it has ensured to adopt an iron hand approach and not back down till the home buyers are given what they were promised.
Adopting an iron hand approach against the Amrapali promoters, the court ordered for attachment and sale of all the properties which they had bought using the money belonging to home buyers. These included five-star hotels, malls, resorts, hospitals etc. This was done following a shocking admission by Amrapali that they had diverted Rs 3,000 crore worth of home buyers’ money into other projects. A forensic audit into all of Amrapali’s group companies is underway, several of its properties have been sealed and its directors who are in police custody are being questioned and asked to cooperate with the authorities – all in a bid to restore the home buyers’ faith. On similar lines, the apex court has got the ball rolling on Unitech as it recently directed for a forensic audit of 74 of its projects that are in various stages of construction. The audit would go as far back as 2006 and the terms are yet to be shared by the forensic auditors. The court also assured that the company’s director, Sanjay Chandra, who is in jail for alleged forgery by buyers, would not be granted bail until the completion of the audit. The efforts of the top court to clean up the act of Jaypee Infratech led it to call for its fresh bidding, besides clearing the ground for initiating insolvency proceedings against its parent company, JAL. Under the amended insolvency code, home buyers can be expected to be treated at par with financial creditors.
Following in the steps of movies like Udta Punjab, Padmaavat, Loveyatri and Ramleela that had to come to the courtroom before they could hit the theatres, the movie Kedarnath made its way to the Gujarat High Court and then the Uttarakhand High Court for allegedly hurting religious sentiments. While the Gujarat High Court slapped the petitioner with a fine of Rs 5,000, the Uttarakhand HC dismissed the petition that sought a ban on the movie depicting a love story between a Muslim boy and a Hindu girl. While PIL’s seeking a ban on movies have become a regular occurrence, the Uttarakhand HC once again made it clear that India was a democracy where everybody was free to exercise their rights and asked the petitioners to not watch the movie if they did not agree with it. The movie, however, has still been banned in seven districts of Uttarakhand following protests by Hindu outfits.
The judiciary is one to always look and plan ahead, especially when it comes to issues affecting the public such as air pollution. In one such instance, the Apex Court directed that only BS-VI emission standards compliant vehicles would be allowed to be sold from April, 2020 onwards in Delhi and NCR. By ensuring that vehicles not in compliance with the new and cleaner emission standards are taken off the road, the common man can be assured of a cleaner future. This becomes significant in today’s climate marked by alarming levels of pollution where preventive measures provide a ray of hope to a cleaner future.
Inhuman treatment of prisoners in Indian jails is an issue that is often ignored when justice is doled out by the justice system. Unnatural deaths, animal like existence and overcrowding in jails have created a system where reforms are the need of the hour. In this light, the Supreme Court has been hearing a case on the inhuman conditions in 1,382 prisons across the country in which it has passed directions from time to time. In yet another concrete step, a bench headed by Justice Madan B. Lokur who is accorded the title of being the “social change judge” directed for formation of a committee that will be headed by former judge of the Supreme Court Justice Amitava Roy. He will be assisted by Inspector General of Police, Bureau of Police Research and Director General of the Tihar jail to look into prison reforms that will improve the current situation relating to prison administration and management. The direction had come on a suo motu case after receiving a letter from the former Chief Justice of India R.C. Lahoti that raised the issue of overcrowding, unnatural deaths, shortage of staff, and untrained staff in Indian prisons.
The committee will be looking at reviewing the guidelines and rule s by various wings of the Govt. and parliamentary committees relating to prison reform including treatment of women prisoners. It will also go into the issue of violence in prisons, access to medical facilities in prison and recommend measure to improve on these issues. Recommendations for the steps that need to be taken for the psycho-social well-being of minor children of women prisoners, including their education and health have also been sought from the specialized committee. Once these are in place and implemented in prisons across the country, the country can expect a safer and more humane treatment to prisoners including ones under trial.
Barring the entry of women between the ages of 10-50years into the temple of Lord Ayyappa was considered a tradition. Some might say it was as good as a stone wall that could not be torn down. Tradition may have its place but at the root of restricting women from entering the temple lay years of discriminatory treatment against them. Given the religious significance of the practice, it was a historic day on 28 September when the Supreme Court did away with this restriction and in a 4:1 majority verdict threw open the gates of the temple highlighting that women’s right to equality and worship had been violated. The lone voice of dissent was by Justice Indu Malhotra, who said that it was not the courts place to interfere with religious practices. Through her grounds of dissent, she also reignited the debate around the principle of constitutional morality as she added that it required harmonization of rights of all persons, religious denominations or sects and that the religious beliefs of none were to be undermined. For this to manifest at the gates of the Sabarimala temple has become an arduous task but, the verdict will go a long way by upholding women rights and ending years of prejudice. For one, it made clear that physiological factors associated with women could not be the basis of denying entry to them. As much criticism it has attracted from all quarters, it has empowered women more.
A ruling of the Supreme Court judgment in the case Star India Pvt. Ltd. versus the Telecom Regulatory Authority of India has paved the way for implementing TRAI’s tariff order and interconnect regulations for pricing and packaging of TV channels offered to subscribers and a genre-wise ceiling on channel prices. As of now, every consumer of DTH and cable TV gets a basic package of 100 standard channels for Rs 130. These include various channels which he may not need or opted for. For people who are particular about their bouquet of channels stand to benefit from the order as they will not get a choice to pick channels rather than being burdened by hundreds at one go as part of their standard package. A drawback of this however, is that the consumer will have to pay more for the choice he’s being offered and may prefer shifting to video streaming services instead.
An asset sale worth Rs 25,000 crore between the companies of the Ambani brothers was finally sanctioned for clearance by the Supreme Court on 30 November. The deal was conducted in three parts- sale of spectrum, media convergence nodes and real estate from Anil Ambani led- RCom to Mukesh Ambani’s RJio. The sale deal that was struck in December 2017, as part of a debt resolution plan to save RCom from insolvency proceedings, made its way to various legal forums such as the Bombay High Court, TDSAT, NCLT, NCLAT and finally the Supreme Court where it culminated. Approving the clearance to such as a huge sale was bridled with road blocks. In the last leg before the Apex Court, RCom was required to furnish Rs. 1,400 crores as corporate guarantee. This corporate guarantee was to be furnished by Reliance Realty, a unit of RCom, in addition to a land parcel as security. As the next step, the Central Govt. would grant a no-objection certificate for the takeover of telecom assets within a week from receiving the corporate guarantee, closing the chapter of troubled times for RCom, that shut its wireless business last year and was burdened with debt of Rs. 46,000 crores and spectrum related dues.
Settling uncertainly over the issue, it was decided by the Supreme Court this month that proceedings under the Insolvency and Bankruptcy code would be shadowed by the provisions of the Limitation Act, 1963. The judgment was passed on a clutch of cases in which NCLAT had held that the Limitation Act would not apply to applications under section 7 and 9 of the Insolvency and Bankruptcy code, made from the date of commencement of the IBC, i.e., 1 December, 2016 until the date on which the IBC was amended to incorporate section 238 A of IBC, i.e., 6, June 2018. In a host of earlier cases, the NCLAT had maintained that limitation would not apply. The reasoning given by the NCLAT was that the IBC code related to initiation of corporate insolvency process and therefore, as long as the debt due included interest, it could be invoked even after the expiry of limitation period. However, there is still uncertainty over when the limitation period would start.
The Supreme Court has delivered several important judgments this year from Aadhaar to Sabarimala which expanded the ambit of fundamental rights. In the Sabarimala case, matter pertained to a case of centuries old customs, traditions and practices versus fundamental rights bestowed in our Constitution. The Supreme Court ruled, “Devotion cannot be subjected to gender discrimination", the Supreme Court removed a ban that prevented women between 10 and 50 years of age from entering Kerala's Sabarimala temple. Secondly, the Supreme Court unanimously ruled that the criminal offence of having a sexual relationship with a woman without her husband’s consent was archaic and deprived women of agency. The Supreme Court unanimously struck down a 150-year-old law that considered adultery to be an offence Defined under Section 497 of the IPC, adultery law came under sharp criticism for treating women as possessions rather than human beings.
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