By Gautam Kumar & Shikhar Bhardwaj

Justice NV Ramana took oath as the 48th Chief Justice of India on 24th April 2021. His tenure is slated to expire on 26th August 2022. He assumes the country’s apex legal office in a challenging time as India is reeling under the horrendous second wave of COVID19, growing criticism of the Supreme Court on its tinkering with the functioning of high courts and his predecessors’ inability to make any appointment to the apex court through collegium. 

In the light of these pressing circumstances, the tenure of the new CJI becomes crucial.  Justice Ramana has a huge task at hand from making appointments to the apex court to ensuring fair adjudication of long pending constitutional cases. 

Let’s take a look at important cases that are pending before the apex court.

• Youth for Equality v. Union of India (Economic Reservation Case)

The Parliament through the 103^rd Constitutional Amendment Act 2019 amended Article 15 and Article 16. The amendment inserted two new articles to the Constitution viz. 15(6) and 16 (6). The Article enables the Government to make special provisions for the uplifting and advancement of the economically weaker citizens. 

The purpose of the amendment is to provide 10% reservation in educational institutions [15 (6)] and 10% reservation in government jobs [16 (6)]. This provision for 10% reservation is in addition to the existing ceiling of 50% reservations.

Several petitions have been filed in the Supreme Court challenging the validity of the 103^rd amendment act, saying it stands in conflict with Article 14 – Right to Equality. Reservation cannot be solely based on economic criteria, the said amendment exceeds the 50% ceiling limit on the reservation as decided by the Supreme Court in the Indra Sawhney case are some of the other major arguments being put forth.

• Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra (Maratha Reservation Case)

The Maharashtra government based on the recommendation of the Justice Gaikwad commission (the commission had recommended 12% reservation for Maratha community in educational institutions and 13% reservation in appointments in government jobs), passed the Socially and Educationally Backward Classes Act, 2018. The act provides 16% reservation for the Marath community in educational institutions and appointments in the state of Maharashtra.

The said act was challenged before the Bombay High Court stating that it is unconstitutional as it breaches the 50% ceiling provided in the Indra Sawhney case. Other arguments include violation of Articles 14, 16, and 19 for creating a separate class outside ‘Other Backward Classes’ to provide reservation for the Maratha community. 

The High Court upheld the validity of the act in 2019 but observed that the act should not exceed the limit of 12% and 13% reservation as recommended by the Gaikwad commission.

An appeal was filed before the Supreme Court against the judgment of the Bombay High Court. The court framed six issues to be addressed: 

1. Whether judgment in the case of Indra Sawhney needs to be referred to a larger bench or requires a re-look by the larger bench?

2. Whether Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution bench in Indra Sawhney’s case?

3. Whether the state Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has made out a case of existence of extraordinary situation and exceptional circumstances in the state to fall within the exception carved out in the judgment of Indra Sawhney? 

4. Whether the 102nd Constitutional amendment deprives the state legislature of its power to enact legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power? 

5. Whether the state’s power to legislate in relation to any backward class under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India? 

6. Whether Article 342A of the Constitution abrogates the state’s power to legislate or classify in respect of any backward class of citizens and thereby affect the federal policy/structure of the Constitution of India?

The arguments, in this case, got completed on 26th March. The Supreme Court has reserved the judgment. 

• Rakesh Vaishnav v. Union of India (Farm Laws Case)

In September 2020, the parliament passed three bills, namely, the Farmers (Empowerment & Protection) Agreement of Price Assurance & Farm Services Act 2020, Farmers Produce Trade & Commerce (Promotion & Facilitation) Act 2020, and Essential Commodities (Amendment) Act 2020. Collectively referred to as the Farm laws. 

Soon after the bills got cleared by the parliament, a nationwide farmer’s agitation started in protest of the proposed reforms. Farmers groups believe that these laws are of no good to farmers and will further marginalise them to the corporates. Several petitions have been filed before the Supreme Court challenging the validity of the acts. The legislative competence of the parliament is also under question. 

To resolve the agitating farmers’ issue, the Supreme Court framed a committee to negotiate with them. The constitution of this very committee has also been challenged before the court though the committee has submitted its report to the court. Details of the report are not in the public domain yet. 

The court is yet to hear the issue on the merits.

• Karmanya Singh Sareen v. Union of India (Whatsapp Privacy Update Case)

Whatsapp rolled out a new privacy policy in January 2021. The new policy received wide criticism on the grounds of violation of individual privacy. There are several controversies with the new policy like it does not provide the users to opt-out from the updates, provision to share the user’s data with Facebook (its parent company). 

Following this, a huge public outrage has erupted. Whatsaap has extended the deadline to accept the update to 15th May 2021 (earlier it was 28th Feb 2021).

The said privacy policy of Whatsapp has been challenged before the Supreme Court and now pending for hearing.  

• Sajal Awasthi v. Union of India (UAPA Amendment Case)

The parliament in 2019 brought an amendment to change certain provisions of the Unlawful Activities (Prevention) Act 1967. The act empowers the government to designate organisations involved in terrorist activities as terrorist organizations. The changes which were made in 2019 (to section 35) now enable the central government to designate even an individual as a terrorist. 

The said amendment has been challenged before the Supreme Court on several grounds like legislative competence of the parliament to make such changes, empowering executives with arbitrary power which can be used to suppress the dissenting voices against the government, violation of due process and right to reputation.

• Association for Democratic Reforms v. Union of India (Electoral Bonds Case)

The central government launched the electoral bonds scheme in 2018. Through these bonds, any individual or any companies/corporations can make donations to the political parties. The bonds are available to be purchased in the denomination ranging from Rs. 1000 to Rs 1 crore through State Bank of India, exclusively. 

The key issue is, the identity of the person/corporation making a donation through an electoral bond is kept anonymous and is not known in the public domain. Also there is no upper limit of donation through these bonds. 

Several amendments were made to different acts to bring this scheme in shape. These acts are the Foreign Contribution Regulation Act 2010 (FCRA), Representation of the People Act 1951 (RoPA), Income Tax Act 1961, and the Companies Act 2013. As the amendments were passed in the garb of being money bills, they were not put forward in the Rajya Sabha for a democratic discussion. 

Petitions have been filed in the Supreme Court challenging the scheme to be contrary to the transparency in political funding and electoral process and thus in violation of the essence of democracy. The last hearing on this case took place a month back on 24th March. The court denied issuing an interim stay on the electoral bond scheme.

• Indian Union Muslim League v. Union of India (CAA Case)

The parliament passed the Citizenship (Amendment) Bill in 2019 which got officially notified on 10th January 2020. The act amends the Citizenship act 1955 in order to grant Indian citizenship to some illegal migrants. 

The amendment specifically provides for a religious classification in order to provide citizenship. 

It states that such migrants who belong either to Hindu, Buddhist, Sikh, Jain, Parsi, or Christian communities from Bangladesh, Pakistan and Afghanistan are eligible for the Indian citizenship. Further, this applies only to the migrants who crossed the border and entered India till 31st December 2014.

The problem is that the particular amendment does not talk about providing citizenship to people belonging to the Muslim community. More than 200 petitions have been filed before the Supreme Court challenging the constitutionality of the amendment act. 

Discrimination on a religious basis, violation of Article 14 and 21 of the Constitution have been cited as some of the key issues with the amendment. 

• Nandini Praveen v. Union of India (Validity of Special Marriage Act)

Special Marriage Act 1954 lays down the procedure for marriage between people belonging to two different caste or religious backgrounds. A provision under the act makes it mandatory for the couples to serve a 30-days prior notice to the Marriage Officer expressing their intention to marry each other. The purpose of this provision is to provide a chance to the public to raise their objections to marriage. However, it is believed that this provision is an impediment to the couple’s right to marry and their privacy.

The Supreme Court issued a notice last year on 16^th September 2020 in a petition filed by Nandini Praveen, a law student, challenging the validity of sections 6(2), 6(3), 7, 8, 9, and 10 of the act.  

The petitioner contended that these provisions violate Article 14, 15, and 21 of the Indian Constitution. However, the Allahabad High Court in January struck down the provision requiring the parties to serve a 30-day public notice. The same matter is still pending before the apex court and is believed to be tentatively listed on 24^th May 2021. 

• Kantaru Rajeevaru v. Indian Young Lawyers’ Association (Sabarimala Review Case)

Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules 1965 provided the legal basis to the custom restricting entry of women aged between 10-50 years into the Sabarimala temple in Kerala. The Supreme Court in September 2018, by a 4:1 majority held this practice to be unconstitutional. Apex court termed this practice to be violative of the fundamental right of the female worshippers to pray and practice religion under Article 25 of the Constitution. However, the only dissenting judgment was delivered by the only woman on the Constitution bench, Justice Indu Malohtra.

Around 65 review petitions were filed against this judgment of the Apex court by different individuals and stakeholders including National Ayyappa Devotees (Women’s) Association. 

On 14^th November 2019, the Constitution bench with a majority of 3:2 referred the Sabarimala review petitions to a larger bench. However, the judgment did not stay the 2018 order. 

The majority judgment also clubbed the issue of entry of Muslim women in mosques, Parsi women to Tower of Silence, and female genital mutilation in the Dawoodi Bhora Community.  

• Manohar Lal Sharma v. Union of India (Article 370 Abrogation Case) 

On 5^th August 2019, the Government of India abrogated Article 370 and Article 35A of the Constitution which provided special status to Jammu and Kashmir. What followed this move was the detentions of opposition politicians, activists, and lawyers in the valley. Later, the Parliament passed Jammu and Kashmir Reorganization Act 2019 and divided the state of J&K into two Union Territories – Jammu & Kashmir and Ladakh. 

The first petition against the abrogation of special status to J&K was filed on 9^th August 2019. Since then several other petitions have been filed before the Supreme Court. 

These petitions challenge the abrogation of Articles 370 and 35A, J&K Reorganization Act, 2019, internet shutdown in the valley, and detention of political leaders. 

The apex court last year in January 2020 declared “the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g)”. 

However, there are several other petitions that are still pending before the five judge Constitution bench headed by Chief Justice (Now Justice NV Ramana), set up on 29th September 2019, challenging the abrogation of J&K Special status.  

• Ashwini Kumar Upadhyay v. Union of India & Ors. (Constitutionality of the Places of Worship Act)

The P.V Narasimha Rao government enacted the Places of Worship (Special Provisions) Act 1991 which froze the status of places of worship as it stood on 15th August 1947. The act exempted Ram Janmabhoomi-Babri Masjid Dispute that was already pending in the court. section 3 of the act states that no person shall convert any place of worship of any religious denomination or any section thereof into one of a different denomination or section.

In the 2019 Ayodhya verdict, the five judge Constitution bench commended the legislation as one that manifests the secular value of the Constitution by prohibiting the conversion of status of place of worship. 

Recently, Ashwini Upadhyay, an advocate and a BJP leader filed a petition challenging the law to be violative of secularism and bars judicial review which is basic features of the Indian Constitution The petitioner contend that the said act violates Article 14, 15, 21, 25, 26, and 29 of the Constitution. 

The Supreme Court last month asked the centre to file its reply against this petition.

• Appointment of Judges

Former CJI Justice S A Bobde failed to make any appointments to the Supreme Court through the collegium. Chief Justice N V Ramana, therefore, is posed with a challenge of clearing appointments to the seven vacancies at Supreme Court currently and 12 until he demits the office in August 2022.  

At the level of High Courts, around 240 vacancies are present as of now and waiting for appointments through collegium. It will be a challenge for the CJI as lately there has been a strong disagreement between collegium and the centre on recommendations to elevate judges due to various reasons like foreign partner, sexual orientation of the Judges etc. 

Justice Ramana will have to address the question of representation, gender and orientation in these appointments as the Supreme Court has not been able to provide adequate representation to women or persons from marginalised sections of society at the highest level.

(Gautam & Shikhar are law students at UPES School of Law, Dehradun and Contributors at TA. They can be found tweeting at @gautamkr_12 & @shikhar__08)

Featured image source: The Quint

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