In the wake of the retirement of the then incumbent Chief Justice of India, Dipak Misra (who retired on 2nd October, 2018), a flurry of cases with came to be decided in the last fortnight of September upto 01st October, 2018 with great, and equally, grave implications for the future of constitutional laws and human rights in the country.
A few cases stand out for attention, all marked by the fact that they were not unanimous rulings but had minority, dissenting judgments being passed. Notable was the split verdict in the Aadhaar case with the majority of 4 judges including the then CJ, Dipak Misra, alongwith Justices AM Khanwilkar and Ashok Bhushan agreeing with the majority ruling authored by Justice AK Sikri, upholding various aspects of the Aadhaar law while Justice Chandrachud gave a long dissenting judgment. The 1448 pages long judgment will be discussed for long for the numerous issues which were considered in the case.
The other important cases in which there were split rulings related to the case of the arrest of 5 prominent human rights activists by the Maharashtra police in the early hours of 28th August, 2018 in a well planned and orchestrated move by the Pune / Maharashtra police in Delhi, Faridabad, Hyderabad, Thane and Mumbai respectively. In this case the majority ruling written by Justice Khanwilkar and concurred by the then CJI, Dipak Misra, held that the arrests of the activists was not illegal while giving one month's time to the activists to approach the appropriate courts for grant of bail, during which period they were allowed to remain in house arrest in their respective homes. Justice Chandrachud wrote a string dissenting ruling pointing out to the various illegalities in the arrest and holding that the arrests could not be supported; the role of the police also came up for censure.
The third ruling was in the context of the issue of entry of women in the age group 14-50 to the Sabarimala temple in Kerala. In this, the majority view favoured the entry of women as an extension of the fundamental right to equality while the lone dissenting ruling of Justice Indu Malhotra held that the court should not interfere in matters of faith. Irrespective of whether one agrees with it or not, the minority ruling of Justice Indu Malhotra is important as part of constitutional analysis.
These judgments apart there were a few other equally important cases including the SC ruling striking down sec. 377 Criminal Procedure Code which decriminalised homosexuality between consenting adults thereby upholding a long pending demand of the LGBTQ community. Of great import was the ruling in the issue of reservations for SC/STs in promotion in which the SC introduced the notion of `creamy layer' in the context of SC/STs which till then was used only in the context of reservations for MBCs/OBCs.
Many of these judgments are of great importance and will need to be thoroughly discussed and analysed for their implications to human rights jurisprudence. We start the process by carrying a few articles on issues related to a few of these judgments. We invite readers and members to participate in the discussion.
In the meantime, the Delhi High court held the arrest of Gautam Navalakha, of PUDR, as illegal and consequently he came to be released from house arrest.
The minority ruling of Justice Chandrachud in the Romila Thapar case and the order of the Division Bench of the Delhi High Court are very crucial orders which uphold the rights of citizens against arbitrary, capricious and motivated prosecutions launched brazenly by police with impunity. Both the ruling expand the protections against abuse of power by the police and also spell out the importance of procedural compliance as a measure of protecting human rights. We shall be carrying more analytical articles to help readers and human rights activists understand the wide scope of the fundamental right to life under Art. 21 and various procedural laws.
During this same period, the government has also launched major action against a number of environmental groups which have been challenging the government's policies on a range of environmental protection laws. The offices of Greenpeace were raised and their bank accounts frozen. Elsewhere people have been prosecuted in very apparent trumped charges. This is apart from activists and campaigners challenging human rights violations. It's very clear, that in the coming months as elections approach, human rights activists will have to brace up to new challenges and will also have to unite to assert the primacy of the rule of law, the Indian Constitution and human rights.