2 Jan 2011

Ten landmark decisions of Supreme Court in 2010: A retrospect

In this first post of the new year we look in retrospect the ails and achievement of our beloved Supreme Court in the year 2010 gone by. On this note, what better to start with than quoting the man who has been voted consistently as the number one lawyer of the country and has argued from both sides of the bar. Prominent Senior Counsel (and a former Solicitor General of the country), Harish Salve has come up on record, in a piece written in the Times of India stating that the Supreme Court must demonstrate will to correct itself. Noting of the change of guard at the helm of affairs with a new Chief Justice of India and given a stirred country, Mr. Salve gives the eulogy to 2010 in the following words;
The Chief Justice of India and the institution he heads enter the New Year under somewhat extreme weather conditions beyond the unusually cold winter in Delhi and the rest of the world. Parliament faces a potential logjam with its future course uncertain as allegations about corporate India fly fast and thick even if a little truth is embellished with a lot of salacious fiction. Even the court itself is under scrutiny. Once again the beleaguered citizenry looks with one part hope and three parts desperation upon the court to help restore some semblance of values of governance in this circus of Indian democracy.
We take this opportunity to undertake a retrospect of what we consider have been some of the major decisions rendered in 2010. While the decisions are many, we have taken the liberty to handpick the top them (with no particular order of priority inter se) in as much as we find they not only have influenced the prevailing state of events but also in as much as they carry the potential to change (and if not so, atleast influence) the legal theory of the subjects they have dealt with. 

(1) In State of Maharashtra v. Sarangdharsingh Shivdassingh Chavan the Supreme Court in no uncertain terms made it clear that it will not tolerate the inference of executive in police functioning. Taking a stern note of the actions of a Chief Minister and going on to impose exemplary costs of ten lakhs, the Supreme Court made it clear that it "cannot shut our eyes to the stark realities". In our view the decision is an apt reminder to those in the power that come what may, irregularities would not be exempted from a close and erudite examination by the Court performing its bounded duty of maintaining the Constitutional order. 

(2) In these two decisions, the first which deals with the issue (but does not conclude) directly and the second which is a tacit acceptance to its limitations, the Supreme Court has taken note of its function as being one of judicial nature alone and not extending to a legislative role. (a) In University of Kerala v. Council, Principals', Colleges, Kerala, the Court referred to a larger bench the determination of a question "Whether under our Constitution the judiciary can legislate, and if so, what is the permissible limits of judicial legislation. Will judicial legislation not violate the principle of separation of powers broadly envisaged by our Constitution?" Whatever answer the Court gives, it is bound to affect the balance of powers understood in the Indian context in a big way. (b) In Gainda Ram v. M.C.D., the Supreme Court directed the Municipal Corporation of Delhi to frame bye-laws to deal with the issues relating to hawkers on the streets. Noting that "whatever power this Court may have had, it possibly cannot, in the absence of a proper statutory framework, control the ever increasing population of this country", the Supreme Court also accepted that on the issue it "has tried its best to somehow deal with the situation. But it is difficult for this Court to tackle this huge problem in the absence of a valid law. The nature of the problem defies a proper solution by this Court by any judicially manageable standards."

(3) In Dinesh Kumar v. Yusuf Ali the Supreme Court vigrously shed the mindset prevailing since the hay days of the Indian Constitution. The Courts have traditionally been inclined, in which can be reflected as a socialist pattern, to rule against the owners of property. The land-laws, labour-laws, tenancy-laws, etc. which were enacted during this period are potent reminders of the Nehruvian socialistic pattern which the country has been traditionally following. However with a liberalized regime, the mind-set has also undergone a change both at the policy-levels as well as the manner in which the judiciary has acted thereto. In this decision the Supreme Court ruled against undue pampering of the tenants at the expense of the landlord and invoked its jurisdiction hold that "the law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society" and that the "courts have no concern to dictate the landlord as to how and in what manner he should live". The decision, while based upon recent decisions, reflects the bold change in the judicial cannons of justice dispensation. 
(4) In Indirect Tax Practitioners Association v. R.K. Jain invoked Gautam Bhudda, Mahavir and Mahatma Gandhi to grant a well-needed respite against the strict rigours of the law on contempt of courts. This is the very court which had punished Arundhati Rai for her criticism of the Court's verdict in Narmada Bachaoo Andolan case". However reflecting of changed times, the decision puts on record the need for a liberal regime where a fair-minded criticism is permitted. The Court declared that "air criticism of the system of administration of justice or functioning of institutions or authorities entrusted with the task of deciding rights of the parties gives an opportunity to the operators of the system/institution to remedy the wrong and also bring about improvements. Such criticism cannot be castigated as an attempt to scandalize or lower the authority of the Court or other judicial institutions or as an attempt to interfere with the administration of justice except when such criticism is ill motivated or is construed as a deliberate attempt to run down the institution or an individual Judge is targeted for extraneous reasons."
(5) "In feudal society sexual relationship between man and woman outside marriage was totally taboo and regarded with disgust and horror" noted the Supreme Court in D. Velusamy v. D. Patchaiammal to contrast the new line of thinking in the Indian society as reflected from the enactment of the Domestic Violence Act. The Court spoke extensively over live-in relationships and held that "aforesaid Act of 2005 Parliament has taken notice of a new social phenomenon which has emerged in our country known as live-in relationship". This decision is an apt reminder that the Court is willing to take judicial notice of the changing social times and unashamed in bringing fore the realities of the Indian Social Order. 

(6) The Court in Competition Commission of India v. Steel Authority of India Ltd also granted the newly functional Competition Commissioner of India the requisite authority to take on the challenges of prosecuting anti-competitive practices as also ensuring that the economy worked at an optimal level by providing safeguards ensuring that the Commission did not become a monster that ran amok. While approving the unabashed powers of investigation vested with the Commission, the Court required "the Commission to pass speaking orders, upon due application of mind, responding to all the contentions raised before it by the rival parties" while exercising such power.

(7) Perhaps taking note of the mounting backlog of cases, the Court in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. declared that it was obligatory for the courts to promote alternate dispute resolution and laid down extensive guidelines to be observed scrupulously by the trial courts in this respect. The Court laid thrust on the legal provisions which require the matters to be resolved first by a conciliatory process and only if the issues could therein not be resolved, take up the matter for decision by itself. One can only hope that even the litigants evolve their mindsets to address their grievances through such mediums.

(8) The declaration in Selvi v. State of Karnataka that forced narco-analysis tests (so-called 'truth serum') and lie-detactor tests were unconstitutional and the extensive declaration to the effect that the Court will not allow the Constitutional protection to the accused to the diluted for any reason. The Court categorically declared that "invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the ‘right against self-incrimination" failing to be persuaded that the changed legal times and fear-reigning terrorist attacks required differential treatment.

(9) In terms holding that the Courts were not handicapped at the hands of the executive in matters requiring investigation, a Constitutional Bench in State of West Bengal v. Committee for Protection of Democratic Rights declared that both the Supreme Court as well as the High Court could direct the Central Bureau of Investigation (CBI) to investigate particular instances, setting aside the contentions that it would about to violation of federal structure provided under the Constitution.

(10) By the laying of guidelines for entertaining public interest litigation before the Courts, the Supreme Court in State of Uttaranchal v. Balwant Singh Chaufal provided for a rule-based regime even for uptaking the social cause involved in such matters. Being of the view that given the frequency and volume of such cases it was "imperative to issue directions", the Court made it clear that by framing the guidelines it was not "discouraging the public interest litigation in any manner" but "trying to curb is its misuse and abuse". By requiring those taking up these causes to come with full declaration of their vested interests etc., the guidelines would indeed clean up motivated litigation.

In other notable references, which were not picked in the top ten but deserve an honourable mention are; 
  1. Arun Kumar Agrawal v. National Insurance Company where the Court expressed its concern on lack of appropriate respect and regard given the the house-wives, which according to the Court form the basic fulcrum of an evolved social order; 
  2. The decision in Preeti Gupta v. State of Jharkhand where the Court ruefully noted the blatant abuse of anti-dowry laws as a means to harass the in-laws of the husband; 
  3. Changing with the changing times, the Court in Central Electricity Regulatory Commission v. National Hydroelectic Power Corporation Ltd. adopted email service of notices as an additional medium of serving the parties by traditional methods of service; 
  4. The decision in  Mahanadi Coal Fields Ltd. v. Mathias Oram where the Court wrote extensively over the issues of development in the context of those displaced from their habitat to make way for development of others;
  5. Setting aside Amrinder Singh's expulsion from the Legislative Assembly wherein a Constitutional Bench declared that such actions were contrary to "the basic objectives of a parliamentary democracy";
  6. Declaring that while "a Governor cannot be removed on the ground that he is out of sync with the policies and ideologies of the Union Government or the party in power at the Centre", nonetheless the Constitutional Bench in B.P. Singhal v. Union of India "the Governor holds office during the pleasure of the President" and "the President can remove the Governor from office at any time without assigning any reason and without giving any opportunity to show cause";
  7. The decision in the hotly contested Ambani brothers case in where the Court invoked the doctrine of public trust to give overriding mandate to the executive over private agreements;
  8. Exoneration of Khushboo from charged of obscenity having openly spoken about sexual beliefs. The Court specifically observed that "an expression of opinion in favour of non-dogmatic and non-conventional morality has to be tolerated as the same cannot be a ground to penalise the author";
  9. The conviction of Manu Sharma wherein the Court reflected upon the need of controlled reporting by the press and disassociating itself from indulging in 'trial by media';
  10. Disassociating the right of the State Governments to challenge decisions of CBI investigated matters and thus providing relief to Lalu Prasad Yadav on a technical point of law.  

2 comments:

Dr. Sudha Jain, Advocate said...

Bravo!Your Blog is seems to be written for common reader, who could not spare themselve to know about devlopment of Legal field in length.

In mu opinion ,It is good to say that 10 is superior but in the eye of Law ,the dispensing of justice system should be like that each as well all the Judgement are trasprent judgement/ seems to be judgement.

Be continue , I personally appreciate your approach in this path.

Dr.Sudha Jain, Advocate & Family Counsellor, New Delhi.

Jhuma said...

The ten selections are very appropriate and hence commendable. It covers diverse spheres through which the conscience of the Supreme Court has travelled in the interest of a better society to be enjoyed by all. Thanks for the effort taken for selecting the cases.

Shakya Sen, Advocate, High Court, Kolkata.