8 judgments that made 2017 a landmark year
As the new year begins, it becomes necessary to review the legal pronouncements of the past year. 2017 has been replete with many significant judgments. While there are some worthy of mention for their controversial nature and the media reportage associated to them - for example, Gurmeet Ram Rahim’s conviction, upholding the death sentence of Nirbhaya accused or the 1993 Mumbai blasts conviction - this article will focus only on those that are likely to have serious impact on India's future.
Indian courts always have had a particular proclivity for drama and unexpected changes, and 2017 clearly did not buck that trend.
1) Right to privacy
A case which rightly deserves to top the list, a nine-judge bench of the Supreme Court, headed by the then chief justice, JS Khehar, ruled that the right to privacy is a Fundamental Right under the Constitution of India.
By relying on the landmark judgments of Maneka Gandhi and Gobind versus State to overrule the cases of Kharak Singh and MP Sharma, which had previously ruled on the subject, the Supreme Court created history on August 24 by ruling right to privacy as part of Part III.
However, this is just the tip of the iceberg as only time will tell how the Supreme Court’s pronouncement on privacy in horizontal and vertical hierarchies will pan out in the years to come.
2) Triple talaq
In what has paved way for a controversial bill on triple talaq, the Supreme Court of India held that the practice of triple talaq in Muslim Personal Law is patently unconstitutional.
The judgment has led to heated, polarised debates across camps. While many have welcomed the judgment with adulation, there is a considerable criticism of the judgment of being intrusive of personal law, which must be a domain exclusively handled by individual communities.
3) Abhiram Singh election
On January 2, the first working day, the Supreme Court of India held that the word “his” in Section 123 (3) of the Representation of People’s Act includes not only the candidate, but the voter as well. As a result of which, no solicitation or appeal may be made on religious or caste grounds by any candidate.
The dissenting opinion of the judgment attacks such a standpoint on the grounds that even marginalised communities might not be able to make use of their identity to galvanise votes in solidarity.
4) Rolling back ordinance raj
The first working day of the court also saw another important judgment. The Supreme Court emphatically held that the promulgation of ordinances is subject to judicial review. For quite some time now, the Supreme Court has been critical of the usurping of powers by the executive via ordinance promulgations.
Justice Chandrachud went beyond established precedence that even ordinances of first instance is subject to judicial scrutiny, based on a reading of the SR Bommai case. In no uncertain terms, the court held that ordinance issuing power is not an absolute power, but an exceptional conditional one which may be made only on given circumstances, and also stressed the mandatory nature of placing ordinances before Parliament after the stipulated period. This judgment has huge ramification for executives, including the current central executive, which use re-promulgation of ordinances as a strategy to bypass democratic law-making procedures through Parliament.
5) Sex with minor wife is rape
Section 375 of the Indian Penal Code states that sexual intercourse, even consensual, with a girl below the age of 18, must be construed as rape. Ironically, as per the marital rape exception, even if a man rapes his wife (who is above the age of 15), it shall be construed as consensual sex, and not rape. The Protection of Children from Sexual Assault Act, 2012 indiscriminately criminalises any sexual act with a child below 18.
In Independent Thought versus Union of India, the Supreme Court harmonised the inconsistency of the IPC exception with that of the POCSO’s by holding that statutory rape applies to everyone below 18, irrespective of whether the girl is married to the accused or not.
6) Standing up for national anthem
In continuation of what has been a bizarre controversy for the past two years, the Supreme Court of India ruled that standing up for the national anthem in cinemas is not compulsory. By way of an unexpected flip of his position, chief justice Dipak Misra exclaimed that citizens do not require to wear patriotism on their sleeves, which flies in the face of his earlier position when he ruled last year that the playing of national anthem is compulsory.
7) 'Cooling-off' period for divorce
In what is considered to be an easing of the divorce process hereinafter, the Supreme Court has ruled that the six-month cooling-off period for cases pertaining to divorce by mutual consent may be waived off by courts subject to discretion.
Section 13-B of the Hindu Marriage Act governs the law of divorce by mutual consent. As per Section 13(1), a petition for divorce by mutual consent may be filed only if the parties concerned have been living separately for at least a year.
As per Section 13(2), a further six months, from the date of filing the petition, must be maintained as cooling-off period. Although a small step towards easing the process, the apex court has held that Courts may do away with the Section 13B (2) requirement on a case-to-case basis where the parties have been living separately for at least 18 months, and efforts to reconcile difference have failed and claims of alimony and custody of children settled.
In essence, parties need not go through an extra six months of waiting for divorce, if they have already spent that much time separately before filing a petition.
8) Abortion past 20 weeks
According to the Medical Termination of Pregnancy Act, 1971, an order for abortion may only be granted before 20 weeks of pregnancy. Only in exceptional circumstances where the pregnancy poses a threat to the life of the mother or the child, may the court grant abortion past 20 weeks, subject to the opinion of a medical board.
The courts in India have been highly archaic and pedantic while reading the exception beyond 20 weeks. In March 2017, the Supreme Court once again rejected a plea for abortion of a 26-week-old foetus that showed indications of Down syndrome.
In the past, the Supreme Court has maintained similar positions and has shown some leniency, for abortion post 20 weeks, where the pregnancy is a result of sexual violence. The arbitrary nature of relying on medical boards, therefore, still remains good law.