2017 in review: How did the Supreme Court fare on the question of Fundamental Rights

Centre for Law and Policy Research

2017 was a rather eventful year of the Supreme Court of India which delivered some important and unexpected judgments. The year also witnessed the retirement of 4 judges including 2 Chief Justices and appointment of 5 additional judges to the court. Most remarkably however was the later part of the year which witnessed extraordinary accusations of misconduct against the incumbent Chief Justice for allocating sensitive cases to rosters of his choice- by disregarding the institutional conventions. This prompted commentators to remark that the court was facing its worst crisis of legitimacy ever since the period of Emergency. The veiling discretion of the Chief Justice also in many ways filliped the puisne judges of the court to openly revolt against him in an unprecedented press conference. However, all the controversies aside- the court in 2017 had its opportune moments to adjudicate on important questions of fundamental rights will have a critical impact on the Republic in the coming years.

With a motive to capture such judgments, the Rights in Review report by the Centre for Law and Policy Research critically analyses the key Supreme Court cases of 2017 relating to Fundamental Rights to assess if they have advanced the constitutional mandate for a robust protection of cardinal civil, political and socio-economic life. The 2017 report which is the fourth installment in the series identifies 11 significant cases which reorient existing legal doctrines, apply law to changing factual circumstances or otherwise have an impact on our collective public life under 3 main groupings of – Equality, Life and Religious freedom.

One of the primary findings of the report is that the Supreme Court constituted 5 or more judge more readily to decide significant fundamental right cases in the past year. This comes at a time when the number of constitution benches have generally decreased over the successive years arguably due to the burgeoning caseload of the court leaving important question of Fundamental and Constitutional Rights often hanging in vacuum for years altogether. This increase in the constitution benches is hence a welcome move by the Court which would go a long way in clarifying important questions of law and speedy disposal of cases in the subordinate courts.

The review extensively covers the KS Puttaswamy v Union of India or popularly known as the Privacy judgment which could arguably be the most important civil rights judgment of our times. The 9 judge constitutional bench settling the decades-long debate unanimously declared the right to privacy as a fundamental right intrinsic to life and liberty.  The broad endorsement of a constitutional right to privacy is likely to have a significant impact on the other cases of Fundamental Rights in the years to come including the Aadhaar judgment which has been reserved by the court after lengthy arguments. The rights in review report has done an in-depth analysis of the judgment with brief summary of the various concurring opinions while supplementing it with a thematic analysis of the 547 page judgment.

In the age of the #metoo which has reshaped public discourse on gender relationship across the globe and India, the Indian Supreme Court also made its mark felt on the issue. Most prominently, the court declared the practice of instantaneous Triple Talaq under Muslim personal law invalid by a 3:2 majority. However, only 2 of the 3 judges in the majority found the practice to be unconstitutional and violative of Fundamental Rights while Justice Joseph Kurian struck down the practice for being illegal on the ground that it goes Shariat and the basic tenets of the Quran. The refusal for a Fundamental Rights scrutiny of the personal laws would mean that the ghost of Narasu Appa Mali would continue to haunt the court in the foreseeable future. The court hence not only lost an opportune moment to lay to rest the anomaly for once and for all but also means that the validity of religious laws would continue to be decided on individual judge’s interpretation of religious texts.

Amongst the more progressive judgments of the court was the decision in Independent Thought which read down the exception to the rape offense to declare child marital rape a criminal offense and Meera Santosh Pal which expanded the reproductive rights of the woman by permitting the termination of pregnancy beyond the 20th week if there is harm to the fetus and danger to the physical and mental health of the mother- both of which are extensively covered in the report.

The proactive approach of the court was also visible in the case of Arjun Gopal wherein the court refused to withdraw its earlier order banning the sale of crackers in Delhi and NCR region owing to the threatening pollution levels in the region. Refusing relief to the manufacturers and suppliers of firecrackers who brought this challenge, the court notably held that the right to health and quality air took precedence over commercial interests drawing on right to life under Article 21 of the Constitution. In another important Article 21 decision the court while striking down the UP RTE Amendment regularizing the employment of 1.74 lakh Siksha Mitras (Contractual Workers) held that the Article 21A Right to Education meant Right to Quality Education and no trade-off can be made with Quality for the purpose of wider reach. The court in Hussain v Union of India also affirmed that speedy trial is a part of reasonable, fair and just procedure guaranteed by Article 21, the court suggested bail application to be disposed within one week in the subordinate courts and in High Court within two-three weeks.

The activist mode of the court was perhaps most visible in the case of Secretary Mahatama Gandhi Mission v. Bhartiya Kamgar Sena where the court extended the Pay Commission recommendations to Private unaided institution citing State obligations under Article 43 of the Directive Principles of State Policy. The court by collapsing the division between public and private problematically extended the scope and horizontal application of equality guarantee to private actors. 

In the religious realm, the court ruled that the Gujarat Government need not pay for the rebuilding of Muslim religious places that were damaged and destroyed in the Gujarat riots of 2002. The court held that a substantial diversion of tax proceeds towards restoration of shrines which might have been destroyed due to the State’s complicity is violative of Secularism. The court based its reasoning in the 2011 judgment which had upheld the Hajj subsidy- which was however differed in an order to phase-out the subsidy the very next year by a separate bench. More recently, the apex ruled that the Government has a duty to maintain the deteriorating ‘lingam’ at the Mahatakeshwar temple in Ujjain further complicating the jurisprudence on secularism and the distance state is expected to maintain from religious affairs.

Though the report comprehensively covers most of the important fundamental rights cases, two additional cases could have made to the list. The first being Re-Inhuman Condition in 1831 v. State of Assam in which the Supreme Court anguished over the increasing cases of custodial and unnatural deaths in prison highlighted the need for an overhaul of the prisoning system. Recognizing that the prisons in India have become a den of retribution and deterrence antithetical to the normative goals of reformation and rehabilitation, the court issued a slew of detailed directives including direct compensation to next of kin in unnatural deaths, medical assistance, phone and video conferences with family, availability of counselors and support persons, medical facilities, increase in visitation rights and provision of open jails for the prisoners. In another case related to the rights of the visually impaired– the court discussed at length the accessibility requirement of such individuals with respect to safe access to roads and transport facilities. The court issued important directives while setting deadlines including making 50% of government buildings in Delhi and state capitals accessible by 2018 for the visually disabled. Perhaps, another page detailing the important cases to look out for in the next year could also be added to the report for a more eclectic coverage.

Having said that, the strength of Rights in Review report lies in its comprehensive coverage, brevity and detailed description bereft of legalese or technical jargon making it accessible to a non-legal audience also. The latter is crucial not only because of the already artificial barriers in access to the knowledge of law but also because of the far-reaching implications of these cases on the common citizenry of the country. This report by the Centre for Law and Policy Research has done a commendable job in that regards by coming up with this important piece of research. 2018 has already been an eventful year for the court and hopefully, the Court would gain from the strength of 2017 to further the cause of fundamental rights, individual autonomy and democratic principles of the Republic.

The full report of Rights in Review 2017 can be accessed here.

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