The much anticipated hearing challenging the validity of the Aadhaar programme as well as the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (‘Aadhaar Act’) began last week in the Supreme Court before the Constitution Bench of Chief Justice Dipak Mishra, Justice A.M. Khanwilkar, Justice A.K. Sikri, Justice D.Y. Chandrachud and Justice Ashok Bhushan. None of the four-senior judges who expressed their displeasure last week in public about the administration of justice in the highest court were part of the Bench.
There are more than 30 petitions that have challenged the validity of Aadhaar, including Justice K.S. Puttaswamy, retired judge of Karnataka High Court, S.G. Vombatkere, Aruna Roy, Shantha Sinha, Kalyani Menon Sen, Binoy Viswam, and Mathew Thomas, amongst others. Even State of West Bengal has challenged the Aadhaar Act.
Appearing for some of the Petitioners, Mr. Shyam Divan, Senior Advocate, who has been leading the charge against Aadhaar in last five years, argued that “if the Aadhaar Act and programme is allowed to operate unimpeded, it will hollow out the Constitution, particularly the great rights and liberties it assures to citizens.”
Mr. Divan further argued that “the government has rolled out a little understood programme that seeks to tether every resident of India to an electronic leash. This leash is connected to a central data base that is designed to track transactions across the life of the citizen. This record will enable the State to profile citizens, track their movements, assess their habits and silently influence their behaviour. Over time, the profiling enables the State to stifle dissent and influence political decision making. As the Aadhaar platform extends to private corporations, the degree of tracking and extent of profiling will exponentially increase. Several State governments have started using the Aadhaar platform to build profiles of residents that is reminiscent of totalitarian regimes.”
He further contended that for most of the time, the Aadhar program operated without a prescribed law in place, i.e., from 2009 to July, 2016, when the Aadhaar Act came into force, the Aadhaar program had no legal basis or justification, except being set up under a Central Government notification. This was argued to be completely unlawful, since fundamental rights cannot be restricted, let alone taken away, by an executive notification. Even Aadhaar Act, which covers some aspects of the Aadhaar program and not the whole, is under challenge on many grounds, including that it could not have been passed by the Government as a ‘money bill’ in Lok Sabha.
The judges asked many questions pertaining to the programme, biometrics, and the data security, amongst others.
The hearings will continue.
Major decisions –
- Adult women and men have the freedom to choose their spouses – The Supreme Court, while hearing a petition filed by Shakti Vahini, a NGO, which sought directions from the Court against the Central Government and the State Goverments on the prevention of ‘honour crimes’, noted that “the Khap Panchayat as a collective body cannot summon adult girls or boys on their choice of marriage. Whenever there is a collective attack on girls and boys who have attained majority, it is absolutely illegal”. The Court was deliberating on the report filed by Raju Ramachandran, appointed amicus in the case, who stated that the Central Government was consulting the States whether to enact a legislation on the issue or not. The Government was asked to respond to the report in two weeks. [Shakti Vahini vs. Union of India, Writ Petition (Civil) No. 213 of 2010, date of order: 16.01.2018]
- Loya case adjourned and now to be heard by a bench headed by CJI Mishra: the sensational case of CBI Judge Loya’s death took another critical turn when the matter came up before the much controversial bench of Justice Arun Mishra and Justice M Shantanagoudar on a writ petition filed by Tehseen Poonawalla and another journalist. Despite protests from several quarters, including the four senior most judges last week, about alloting this sensitive matter to Justice Mishra, the Bench heard the matter and asked the State of Maharashtra to file all relevant documents in the case and give a copy to the Petitioners. The Court then posted the matter to be listed before another bench. The matter is now listed for Monday before the Bench of Chief Justice Dipak Mishra. [Tehseen Poonawalla vs. Union of India, Writ Petition (Civil) No. 19 of 2018, date of order: 16.01.2018]
- Ban on Padmawat by four States put on hold: The Supreme Court stayed the operation of the two notifications issued by the States of Gujarat and Rajasthan and the decision of the States of Haryana and Madhya Pradesh to ban the screening of Padmawat in their respective States. It was argued by the producers that once a certification was issued by the CBFC, the States could not ssue notifications or orders prohibiting the exhibition of film in theatres. They further argued that it was the obligation of the States to maintain law and order. Agreeing with the said contentions, the Supreme Court noted the primacy of the fundamental right to expression guaranteed under Article 19(1)(a), which could be restricted only under the restrictions prescribed in the Cinematrograph Act. [Viacom 18 Media Private Limited & Ors. vs. Union of India, Writ Petition (Civil) No. 36 of 2018, date of order: 18.01.2018]
- Appeal against Mahmood Farooqui’s acquittal in the rape case dismissed: In a shocking instance, the Supreme Court dismissed the appeal of the rape victim against the acquittal of the filmmaker Mahmood Farooqui by the Delhi High Court in September, 2017. The Apex Court reasoned that since the accused and victim were known to each other and had developed a close relationship, these cases would be hard to decide. The Court failed to note that the High Court judgment committed a gross error by deeming the victim’s sustained refusal to engage in any sexual acts with Mr. Farooqui as a ‘feeble no’, which was not clear to him. The Supreme Court by failing to correct that patent error of law let a bad judgment stay, which would have huge ramifications on the future rape trials. [ X vs. Mahmood Farooqui, Special Leave Petition (Criminal) No. 281/2018, date of order: 19.01.2018]
- Allowing marital rape violates the basic rights of autonomy and dignity of married women: The Petitioners in Delhi High Court, who have challenged the exemption given to marital rape, in Section 375, IPC (rape law) argued that all adults have a right to sexual autonomy and bodily integrity. The exemption to marital rape under Exception 2, Section 375, IPC has created the legal fiction, when married women could be legally raped. Meanwhile, the Delhi Government contended that marital rape was already criminalised under Section 498A, IPC, which penalises cruelty, including physical and sexual cruelty. So there was no need to create a separate offence of marital rape in IPC. This was surprising, considering the AAP Government in Delhi has been demanding better protection for women against sexual assault in law. [RIT Foundation vs. Union of India, Writ Petition (Civil) No. 284 of 2015]
- PIL filed in Bombay High Court seeking direction to CBI to appeal against the discharge of Amit Shah: Bombay Lawyers Association, a registered lawyers’ body, filed a petition in Bombay High Court seeking a direction to CBI to challenge the discharge of Amit Shah in the alleged false encounter of Sohrabuddin Sheikh and Kauser Bi. The petition also challenged the transfer of CBI judge, JT. Utpat, who was earlier hearing the trial of Sohrabuddin, when he was transferrred by the Administrative Committee of Bombay High Court, incontravention of the order of Supreme Court in September, 2012. [Bombay Lawyers’ Association vs. CBI, Public Interest Litigation 1 of 2018]
- Challenge to the media gag order in Sohrabuddin trial’s case: The Bombay High Court issued notice in the petitions filed by journalists against the order by special CBI judge S.J. Sharma prohibiting the media from reporting on the alleged fake encounter case of Sohrabuddin Shaikh, Tulsiram Prajapati and Kausar Bi. Two similar petitions have been filed on this issue on the basis that the gag order was illegal, since the CBI judge was not empowered under the Code of Criminal Procedure to pass such an injunction against media personnel. They also argued that the gag order was ostensibly passed by the judge to prevent misreporting of the sensitive trial, while the media had been reporting since last 5 years, with no instance of any misreporting. [Brihanmumbai Union of Journalists vs. CBI & Ors.,]
- Delhi High Court refuses to grant interim stay on the disqualification of 20 AAP MLAs in Delhi: On Friday, the Election Commission of India sent a recommendation to the President for disqualification for 20 AAP MLAs on the ground of holding office of profit. This was sought to be stayed in Delhi High Court by the AAP MLAs, but the High Court refused to grant any interim relief. The High Court directed the ECI to get instructions regarding the present status of the reference and whether an opinion has already been forwarded by ECI to the President to India. [Som Dutt & Ors. vs Election Commission of India, Writ Petition (Civil) No. 7380/2017, date of order: 19.01.2018]
- Marriage to Scheduled Caste does not entitle to the benefit of reservation: The Supreme Court rejected the plea of a woman who married a man from Scheduled Caste and was claiming the benefit of reservation in employment. The Court held that the caste was determined by birth and the caste cannot be changed by marriage with a person of scheduled caste. Merely because her husband belonged to a scheduled caste category did not mean that the wife had to be issued a caste certificate showing her caste as scheduled caste. [Sunita Singh vs. State of UP, Civil Appeal No. 487 of 2018, of judgment: 19.01.2018]
Prepared by Amritananda Chakravorty ([email protected]) and Mihir Samson ([email protected]), Delhi based practicing Advocates.
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