Year 2017: List of Judgements passed in 2017

Year 2017: List of Judgements passed in 2017

2017 has been an integral year that has seen a number of landmark judgements that were passed by the Supreme Court which have had an impact on societal development. Here is the list of judgements that have made an impact in this year. 

2017 | Judgments

Indira Jaising v. Supreme Court of India | Senior Advocate designations case

In July 2015, Ms. Indira Jaising, a Senior Advocate filed a petition in public interest in the Supreme Court of India titled Indira Jaising v. Supreme Court of India (through the Secretary General) & Ors. seeking guidelines for the designation of Senior  Advocates. We discuss below what motivated the Petition. On the grounds that the process is entirely opaque and there is no way of knowing whether any of the criteria guiding Order IV Rule 2(a) of the Supreme Court Rules and Section 16(2) of the Advocate Act are taken into account since there exist no minutes of meetings detailing evaluation of applications or discussions on the same, the applicants are not interviewed, reasons for non-designation are not communicated to applicants, moreover, the Court adopted voting by Secret Ballot in 2014 making it impossible to know who voted for whom.

Senior designations had become almost a political issue in recent times, and have even given rise to lobbying for the recommendations of judges. 

On 12th October, a three-judge bench of the Supreme Court comprising of Justice Ranjan Gogoi, Justice R.F. Nariman and Justice Navin Sinha pronounced a monumental judgment issuing guidelines to be followed to designate senior advocates by all High Courts and the Supreme Court.

In the guidelines issued, the judges indicated certain factors to be included when considering senior designations such as the number of years of practise put in by an advocate, judgments on cases which the lawyer has been part of, pro bono litigation and other such factors. The judgement significantly enhances transparency in the decision making process. The evaluation is objective based on specified criteria. Pro Bono work is encouraged and recognized as a contribution to public life. The existing system being opaque encouraged back door methods of entry and the favouring of friends and relatives. Rules are yet to be framed by the Supreme Court and High Court leading to delays in the implementation of the judgment.

Noting the discrimination in the dress code of advocates and senior advocates, Senior Advocate Indira Jaising gave up her senior gown insisting that there should be “one bar one gown.”

India V. Pakistan |Kulbhushan Jhadav Case

India filed its request for the indication of provisional measures on 8 May 2017, the same day that it initiated proceedings against Pakistan in a dispute concerning alleged violations of Article 36 of the Vienna Convention on Consular Relations of 24 April 1963 with respect to an Indian national, Mr. Jadhav, sentenced to death in Pakistan. The International Court of Justice (ICJ), principal judicial organ of the United Nations, on 18th May 2017 indicated to the Islamic Republic of Pakistan that it must “take all measures at its disposal” to ensure that Mr. Kulbhushan Sudhir Jadhav, of Indian nationality, is not executed pending a final judgment of the Court in the Jadhav Case (India v. Pakistan). Just as the year ended Pakistan permitted his wife and mother to meet him under controlled conditions with no counselor access amidst allegations of humiliating them. Whether such a visit would comply with international law, remains to be seen.

Shayara Bano and Ors. v. Union of India | Triple talaq judgement:

The Shayara Bano and Ors. v. Union of India judgement was delivered on 22nd August 2017 by a five-judge bench of the Supreme Court of India. The operative part of the judgement held the practice of instantaneous triple talaq or talaq-e-biddat as unconstitutional in a split 3:2 judgement.

Chief Justice Khehar and Abdul Nazir J. in their minority judgement held that Triple Talaq cannot be challenged as it forms part of sharia. They further held that it is not open to challenge on the grounds of violation of Fundamental Rights as it was part of personal law. Opposed to this was the judgment of Rohinton Nariman J. supported by UU Lalit J., who held that Triple Talaq came to be recognized in the Muslim Shariat (Application) Act, 1937, and thus ceased to be part of personal law. Therefore, Triple Talaq was open to challenge on the ground of violation of fundamental rights, including Article 14 of the Constitution. The judgment put to an end the patently unconstitutional practice of Triple Talaq paving the way for a more just society.

Read our analysis of the judgement on triple talaq: Special Issue on Triple Talaq

Justice K.S. Puttaswamy & Ors. v. Union of India & Ors. | Right to privacy:

A nine-judge bench of the Supreme Court in the case of Justice K.S. Puttaswamy & Ors. v. Union of India & Ors. held that privacy is an inherent inalienable fundamental right. The Supreme Court ruled that a right to privacy emerged from personal liberty under Article 21 and as a part of the freedoms guaranteed under Part III of the Constitution.

Read our analysis of the right to privacy judgement: Special Issue on Right to Privacy

Binoy Viswam v. Union of India | Aadhar PAN Judgement:

In June 2017 the Supreme Court upheld the constitutional validity of Section 139AA of the IT Act, 1961, making it mandatory to link an individual assessee’s Aadhar number with his/her PAN number. However, the court also held that the assessees who were not Aadhar card holders need not comply with the said provisions.

Read our analysis of the judgement here: Aadhar-PAN Judgment – Of Judicial Evasion, Unchallenged Assumptions and Non-Engagements by Satya Prasoon

Kamini Jaiswal v. Union of India/ Campaign for Judicial Accountability and Reforms v. Union of India:

The Supreme Court dismissed the petitions filed by Campaign for Judicial Accountability and Reforms (CJAR) and another filed by Advocate Kamini Jaiswal which sought investigation by a Special Investigation Team (SIT) into the alleged bribery case with regard to medical colleges compliance requirements by Medical Council of India (MCI).  Both these petitions had arisen due to an FIR filed by the CBI alleging corruption surrounding an attempt to influence the outcome of a case with reference to medical colleges compliance requirements by Medical Council of India (MCI). The petitions raised questions of corruption in the higher judiciary. However, both were dismissed before the Supreme Court. The case brought to the forefront, the divisions in the court among two senior judges. While the order passed by Justice Chelemeshwar, appointing a five-judge Bench to hear the matter was criticized as being beyond his powers, the order passed by the CJI appointing a five judge Bench (not the senior most) overruling the earlier order, was also criticized on the ground that he became a judge in his own cause by holding that he was a “master of the roles” and he alone had the power to nominate Benches to hear cases. But since the innuendo in the FIR was that he himself was favouring litigants, the general opinion was that he should not have been on the Bench hearing the case as a fundamental principle of jurisprudence is no person should be a judge in his own cause. The public display of this disagreement greatly damaged the credibility of the judiciary as a justice dispensing mechanism. A former High Court judge was arrested and large amounts of cash were recovered from his person, leading to the perception that there was corruption in high places. The FIR remains in place and remains to be investigated.

CBI v. A. Raja | 2G judgement:

On 21st December, the special CBI Court in New Delhi pronounced the verdict in the 2G spectrum case, acquitting former telecom minister A. Raja, Rajya Sabha MP Kanimozhi and 15 other accused of corruption and money laundering charges. The verdict was delivered on the cases lodged by CBI and Enforcement Directorate against A Raja, Kanimozhi and others.

In the chargesheet filed in April 2011 against Raja and others, it was alleged by CBI that there was a loss of Rs 30,984 Crore to the exchequer in allocation of 122 licences for 2G spectrum which were scrapped by the Supreme Court on February 2, 2012.

Mukesh & Anr. v. State of NCT of Delhi & Ors. | Nirbhaya rape case:

In May 2017, the Supreme Court confirmed the death sentence awarded by the Delhi High Court to the convicts of the December 16th, 2012, gang rape case. Six men including the four convicts were found guilty of raping the medical student on a moving bus, who ended up succumbing to the injuries inflicted on her person in a hospital in Singapore. One of the accused was found hanging in a prison cell in Tihar jail in March 2013 while another one of the accused who was under the age of 18 years when the crime was convicted was tried as a juvenile and given a lighter sentence of 3 years in a juvenile home.

The death sentence was awarded to the four convicts by a trial court which was upheld by the Delhi High Court in March 2014.

Mumbai bomb-blast case:

In June 2017, a special TADA court in Mumbai pronounced its judgement in the 1993 bomb blasts that took place in Mumbai which involved seven accused including the gangster Abu Salem. The accused were found guilty of criminal conspiracy charges. Accused Riaz Siddiqui was convicted under Section 3 (3) of TADA Act but was acquitted all other charges. According to Mumbai TADA court, prosecution failed to prove charges of conspiracy against Siddiqui. All the accused were acquitted of charges of waging war against the nation. The bomb blasts left 257 people dead, 713 seriously injured and property worth Rs. 27 crore was destroyed.

Yakub Memon one of the prime accused in the case was hanged in Mumbai in July 2015. Other prime accused in the case include Dawood Ibrahim, Mohammad Dossa and Tiger Memon who still remain at large.

Gurmeet Ram Rahim v. CBI | Dera Sacha Sauda case:

In August 2017, the Dera Sacha Sauda chief Gurmeet Ram Rahim was sentenced to 20 years in prison for the rape of two of his followers by a special CBI Court. He was sentenced to two 10-year imprisonments and fined Rs. 30 lakh.  The crimes were committed in 1999, and a case was filed after one of the complainants wrote an anonymous letter reached the Punjab and Haryana High Court. There were violent protests triggered by the sentencing of this godman which took place across the capital and some neighbouring states. It prompted the Delhi Police to impose prohibitory orders under section 144 CrPC across 11 police districts as incidents of arson were reported from at least 12 places across the Capital.

Read our analysis of the judgement here:  Ram Rahim Verdict: Jail Term Should’ve Been Higher For Each Rape by Indira Jaising

Rajesh Sharma & Ors v. State of UP and Anr | Section 498A verdict:

In July, 2017, the Supreme Court passed a judgement in the case of Rajesh Sharma & Ors v. State of UP and Anr diluting the provisions of Section 498A of the IPC. The judgement relied on an assumption that a large number of cases filed under this provision of the IPC are frivolous and false. The Supreme Court bench in its judgement gave a number of guidelines as precautionary measures for arrests under Section 498A, such as setting up of family welfare committees to look into these complaints before it is investigated into by the Investigating officer/ Police Officer. The judgement saw protests by women’s groups outside the SC and several review petitions have been filed. Meanwhile, on another Petition claiming that women’s groups were not being nominated to the welfare committees, a Bench presided over the CJI issues notice observing that the said judgemnent needed to be revisited as it may run counter to established law.

Read our analysis of the judgement here: Women to the Supreme Court: “We are not liars”, protest against dilution of Section 498A

Independent Thought v. Union of India:

In October 2017, the Supreme Court read down the exception 2 to Section 375 of IPC which laid down the exemption to marital rape in the case of Independent Thought v Union of India. The Court held that sexual intercourse with a girl child under the age of 18 irrespective of the marital status would amount to rape. It was held in the case that the exception created an artificial distinction between an unmarried girl child and a married girl child. It further stated that there was no reasonable nexus to a legitimate objective as it is arbitrary and not in the best interest of the girl child. While the ruling appears to meet the ends of justice, the criminalizing of consensual sex between adolescents.  whether married or not , was not dealt with, nor was the issue of child marriage per se , which was the real issue in the case .

Read our analysis of the judgement: Implications of reading down of the Marital Rape Exemption by the Supreme Court by Upasna Garnaik

 Abhiram Singh v CD Commachen:

A seven-judge constitution bench in a 4:3 ruling held that political candidates cannot appeal to the candidates or voters on the basis of religion, race, caste, community or language during elections. The court dealt with an interpretation of Section 123 (3) of the Representation of People’s Act, 1951, which lays down what would be a ‘corrupt practice’ under the Act.  It was held by Chief Justice TS Thakur in the judgement that an appeal in the name of religion, race, caste, community or language is forbidden even when the appeal may not be in the name of the religion, race, caste community or language of the candidate for whom it has been made. In a minority judgment, Justice D Y Chandrachud held that an appeal to identity during elections was not necessarily violative of Setion 123(3) of the act as it enabled the raising of issues of concern to the people.

Arjun Gopal v Union of India | Cracker ban case:

Petitioners, residents of Delhi, sought the immediate intervention of Supreme Court against the inevitable and upcoming widespread use of firecrackers and fireworks and other products of the same classification, especially during the festivals of Dussehra and Diwali. In September 2017, the bench of Madan B Lokur and Deepak Gupta  issued elaborate directions including banning certain firecrackers and reducing the licenses provided to manufacturers of firecrackers. These directions were said to be issued keeping in mind the adverse effects of air pollution, the human right to breathe clean air and the human right to health, the Central  Government and other authorities should consider encouraging display fireworks through community participation rather than individual bursting of fireworks.

10 year-old rape survivor pregnancy:

The Supreme Court has also been monitoring the pregnancy of the 10-year old rape survivor who gave birth to a child in August. In August, Senior Advocate, Indira Jaising concerned with the low compensation provided in this case, filed an application in the matter of Nipun Saxena v. Union of India where she is assisting the court as amicus curae. The application by Ms. Jaising contained a prayer to the court to provide an immediate compensation of Rs.3 lakhs, and a further sum of Rs. 7 lakhs to be paid to the victim. She also made a prayer for fast track trial of the case under POCSO on priority basis.

Both the accused were convicted and sentenced to life imprisonment by a fast-track court. As a part of the compensation to the rape survivor, the accused were directed to pay Rs. 3,05,000 each, out of which Rs. 5000 each was to be paid to the State under Protection Of Children from Sexual Offences Act. The remaining Rs.3 lakhs each was to be paid to the victim, which is in addition to Rs. 10 lacs awarded by CLSA.

In the last order, a report was filed in the court indicating that 10-year-old is healthy, and no trauma or stress has been observed. Additionally, she has rejoined school and is keeping well. The child has been put up for adoption, and prospective parents have been identified. 

Disclaimer:"The views in the article are of the author and do not represent the views of the Invisible Lawyer"

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