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Has the new chief justice changed the SC’s policy of not hearing politically controversial cases?

EWS Reservations, CAA And The Hijab Ban: UU Lalit’s Term Has Seen The Supreme Court Begin To Hear A Flurry Of Critical Cases.

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President Droupadi Murmu administers the oath of office to Uday Umesh Lalit as the new Chief Justice of India. | PTI

For the past few years, the Supreme Court has been criticised for failing to hear controversial political cases. That seems to be changing now with the swearing-in of Uday Umesh Lalit as the new chief justice of India on August 27.

Four weeks into Lalit’s tenure, the top court has started listing a host of frozen cases. These include the legality of reservations for economically weaker sections, the Citizenship (Amendment) Act, criticised for introducing religion as a criterion for Indian citizenship as well as the the Unlawful Activities (Prevention) Act, a draconion terror legislation that makes bail virtually impossible.

The outcome of these cases is still to be seen. But by simply not listing cases, the Supreme Court was, in effect, helping the Union government, as severa; commentators had pointed out. That’s because a lack of decision allowed the government’s actions to become “fait accomplis”, even if under a legal cloud.

Cold storage cases

On Lalit’s very first working day as chief justice, on August 29, a case challenging the legality of the hijab ban in Karnataka was listed. Starting March 16, several petitions had been filed challenging a Karnataka High Court judgement that upheld a controversial order passed by the BJP ruled-Karnataka government effectively banning the Islamic scarf in education institutes.

However, for more than five months, the Supreme Court simply refused to list the matter even once despite repeated requests by lawyers to hear the case.

Then, on September 12, the court also listed the constitutional challenge to the Citizenship (Amendment) Act, a 2019 law that allowed non-Muslim migrants from Afghanistan, Pakistan and Bangladesh the option of Indian citizenship, even if they had crossed the border without documentation.

The CAA had sparked massive protests across the country, with the Modi government coming under significant pressure internationally as well. However, in spite of its political importance, petitions challenging the law were kept frozen by the Supreme Court for more than two-and-a-half years even as it prevented High Courts from hearing them.

A Lalit-led bench has also listed a writ petition challenging the constitutional validity of the Unlawful Activities (Prevention) Act, 1967 for October 18. The case was filed in December 2021 and has not been listed since. The 1967 act is a stringent anti-terror legislation that makes bail virtually impossible. The law has been criticised for being used to target critics of the government.

The Supreme Court website also shows that the case regarding the legality of electoral bonds has been tentatively listed for October 14. Notified in January 2018 by the Union government, this scheme allows unrestricted anonymous donations to be made to political parties. Critics argue these bonds have benefitted the ruling party at the Centre disproportionately. However, the Supreme Court has not heard this case actively, with the last hearing being in March 2021, where the court refused to put an interim stay on these bonds.

Closing old cases

Apart from these, the Supreme Court has also brought out some cases that had been pending for years. For instance, it closed a contempt case against Prashant Bhushan from 2009 and reserved judgement in a case from 1998 asking for implementation of the Justice Srikrishna Commission report on the 1992-’93 Mumbai riots.

The court has also closed criminal contempt cases relating to the demolition of Babri Masjid that were pending from 1992 and disposed of cases from 2002 asking for an inquiry into the 2002 Gujarat riots.

The court under Lalit has also expedited action in some ongoing cases.

In September, the court gave interim bail, which allows for the release of an accused till the regular bail petition is decided on, to Teesta Setalvad, an activist who had fought on behalf of the victims of the 2002 Gujarat riots. Setalvad was arrested in June the day after a Supreme Court judgement had called for her to be legally prosecuted.

In the same month, it also awarded bail to Siddique Kappan, a journalist arrested and charged under an anti-terror law in October 2020 while he was on his way to cover the story of a Dalit teenager allegedly gang-raped and murdered by upper caste men in Uttar Pradesh. In spite of this, however, Kappan will remain in prison since he is yet to get bail in another case.

Earlier, the Supreme Court had kept Kappan’s bail petition pending for nearly six months before asking Kappan to approach a lower court in April 2021. The court’s disinclination to hear the case was criticised by several legal commentators.

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A protest seeking the right to wear hijabs in educational institutions for Muslim women in Karnataka. Credit: PTI

Constitutional benches

Not having constitutional benches – comprising more than five judges that decide on substantial questions of constitutional interpretations – was another criticism of the Supreme Court in recent years. There were 53 pending cases that required constitutional benches during the previous Chief Justice of India NV Ramana’s tenure. Some of them had significant political ramifications, such as reservations for economically weaker sections and the legality of the abrogation of Article 370,
a constitutional provision that awarded special status to Jammu and Kashmir within the Indian Union.

However, the previous chief justice, in his 16-month tenure, had only constituted one constitutional bench. Moreover, it was done for a non-political case involving a dispute between a Gujarat state electricity regulator and power generation company, Adani Power (Mundra) Limited.

Past chief justices have been criticised for cases not being listed since, as “master of the roster”, the chief has the exclusive power to decide when cases are heard and who hears them.

But in September itself, Lalit has constituted at least three constitutional benches, comprising 15 judges, to hear final arguments in cases. Some of these are related to controversial subject matters, such as the legality of reservations for general category citizens who are economically weak, introduced in 2019 by the Central government. Others are related to areas such as defection and legal education. Several important constitutional cases, regarding religious ex-communication and control of administrative officers in Delhi, are scheduled for hearings in the next couple of months.

A fourth constitutional bench, on Wednesday, conducted preliminary hearings to decide the timeline for listing five constitutional cases. Among them, one was a legal challenge to demonetisation – the 2016 move by the Modi government withdrawing Rs 500 and Rs 1,000 notes overnight.

Lalit also said that he will list the challenge to abrogation of Article 370 after October 10. The case was last heard in March 2020.