India’s Supreme Court redeems itself after a bad patch with Gogoi as chief justice

Justice Ranjan Gogoi has taken over as the Chief Justice of India as per established norms, despite previous differences with the outgoing chief justice Dipak Misra.

Controversy has not been new to the Indian Supreme Court. In its 68 years of existence, it has been subjected to political pressure from the Executive. It had resisted it and sometimes wilted under it. At times, it has found itself to be at odds with progressive political trends and at other times it has shown progressive paths.

But in January this year the crisis it faced was altogether new. For the first time in its history, the highest court was about to implode.  A chief justice who was flouting norms allegedly with a political motive was seen to be destroying the court’s independence. And with one of the pillars of Indian democracy wilting under political pressure, democracy in the country as a whole appeared to be in peril.

This came out in an unprecedented press conference held by four senior judges of the top court led by Justice J Chelameswar. They said that the internal administration of the country’s highest court was vitiated by the high-handedness and arbitrariness of Justice Misra; that the institution was cracking; and that if this was allowed to continue, Indian democracy would be in peril.

They alleged that Justice Misra was exceeding his powers as “the first among equals” by manipulating the roster to get some politically sensitive cases heard by suitable rosters of judges. One of the cases was the mysterious death of judge BH Loya who was hearing  a murder case involving Amit Shah, president of the ruling Bharatiya Janata Party (BJP).

Eventually, the internal dispute was patched up. And Chief Justice Misra ended his tenure in September by giving a series of landmark judgments which strengthened social justice, equity and democracy.

GENDER EQUALITY

In a judgment with far reaching consequences for gender equality, the Court declared that women could not be barred from worshiping at the famous “males only” Ayyappan temple in Sabarimala in the south Indian state of Kerala.

“Devotion could not be subjected to gender discrimination,” said Justice Misra and Justice AM Khanwilkar.

Thanks to another recent Supreme Court judgment, adultery is no longer a crime in India. But it continues to be a ground for divorce.

In Indian adultery law, it was the man who came in for punishment if he had sex with a women without the consent or connivance of her husband. The woman was seen as a victim and spared.

The judges said that since the woman’s sexual behaviour was determined by the will of the husband, she was not free and that there was a gender bias there.

"The wife can't be treated as chattel and it's time to say that the husband is not the master of the woman," Misra said.

The judges said that making adultery a crime would mean "punishing unhappy people." The Chief Justice further said that adultery might not be the cause of an unhappy marriage, it   could well be the result of one.

Misra gave the radical judgment despite the fact that the BJP government had opposed the petition and he himself  was thought to be a BJP sympathizer.

GAY SEX ALLOWED 

The Supreme Court ruled that Section 377 of the Indian Penal Code cannot punish gay sex between consenting adults. However it could punish non-consensual sex, sex with minors and bestiality.

Earlier, the court had recognized transgender persons as the “Third Gender” and asked government to make them eligible for government welfare schemes as a distinct community.

ENDS BIOMETRIC ID CARD TYRANNY

The court recently ruled that the production of the Biometric Identity Card, called 'Aadhaar', could not be deemed mandatory for availing of various government-sponsored services, especially services meant for the poor.

This followed the death of a child which could not be admitted to a government hospital because her parents did not have the Adhaar Card.

The judges also struck down the need to show the Adhaar card   mandatory for opening bank accounts or taking a mobile telephone connection or getting school admission.

SUPREME COURT’S CHEQUERED HISTORY

The Indian Supreme Court has been affected by the changing environment since independence.

Like all institutions founded by the British, it began as a rule-bound and socially and politically conservative one. In 1951, it struck down a Madras government order which provided for reservations in government jobs and educational institutions for the backward classes or castes violating the concept of equality before law.

This prompted the socialist government led by Jawaharlal Nehru to enact the First Amendment to the Indian constitution to provide for reservations for backward communities.

In the 1960s, leftist politics took centre stage. But in 1967, the Supreme Court ruled that under no circumstances fundamental rights could be violated. However, when Prime Minister Indira Gandhi nationalized 14 major banks in 1969 to serve the poor better, the court reversed the ruling of 1967 to allow the takeover of banks.

In 1973, in the Keshavananda Bharati-vs-State of Kerala case, the court ruled that parliament could amend the constitution but not its “basic structure” or “the essential features of the Constitution.”

This stopped the Indira Gandhi juggernaut which was crushing the constitution to serve its political and ideological agenda.

But the ruling led to the imposition of a State of Emergency in June 1975. Earlier that year, the Allahabad High Court had unseated Indira Gandhi from parliament on the grounds that she had used official personnel and privileges in her 1971 election campaign in the Rae Bareily constituency. When she challenged this in the Supreme Court, Justice VR Krishna Iyer, a “committed” leftist  judge,  stayed the order so that she could continue as Prime Minister.

COMMITTED JUDICIARY

Indira Gandhi had introduced the concept of a “committee judiciary” and “committed bureaucracy” so that she could implement her radical socialistic programs. She packed the Supreme Court with committed judges.

Committed judges did good work too. Judges like Krishna Iyer and PN Bhagwati could give socially progressive judgments. Courts allowed letters to be treated as writ petitions.   

After she declared a State of Emergency, triggered by a movement which called upon the police and officials not to obey illegal orders, Indira Gandhi got  the court to set aside the judgment unseating her from parliament.

The  39th Constitutional Amendment which was passed during the Emergency made the election of the President, Vice President, Prime Minister and parliament Speaker beyond the jurisdiction of courts. But after the Emergency this was struck down.

MEASURE TO PROTECT JUDICIARY 

After the end of the Emergency in 1977, governments did try to manipulate the Supreme Court. One way of manipulating was to determine the appointment of judges.

But in 1993, the court fought back and introduced the “Collegium System” to choose judges for the Supreme Court and the High Courts. Judges were to be chosen by a Collegium of Judges.

But since government is the appointing authority, it could delay or send back nominations which it did not favour. Recently the BJP government tried to block High Court Judge KM Joseph from being appointed to the Supreme Court despite the recommendation of the Collegium. But ultimately it had to give in.