In India’s federal structure, while the legislature is responsible for formulating laws and policies in keeping with the Constitution, the role of the Supreme Court, which is at the apex of the judicial system, is to interpret the laws and act as the guardian of the Constitution. It is the top court’s primary duty to uphold the fundamental rights of citizens and protect their liberties. Moreover, Article 141 of the Constitution states that “law declared by the Supreme Court shall be binding on all courts within the territory of India,” which also means that the Court sets precedents for future interpretations of law in simlar circumstances.
In the year 2022, the Supreme Court handed down multiple judgements with far-reaching impacts on different sections of the populace. Here’s a list of some of the important ones.
The hold on sedition
The Supreme Court in 2022 put on hold Section 124A (sedition) of the Indian Penal Code for the government to revisit the colonial provision. (Representational image) | Photo Credit: (AP Photo/Aijaz Rahi)
On May 11, a three-judge Bench led by former Chief Justice of India N.V. Ramana directed the Central and State governments to keep at abeyance all pending criminal trials and court proceedings under Section 124A (sedition) of the Indian Penal Code, while allowing the Union to re-examine the colonial-era provision dating back to 1898.
“It is clear that the Union of India agrees with the prima facie opinion expressed by this court that the rigours of Section 124A of the IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime.”Supreme CourtMay 11, 2022
The court also said that it “hopes and expects” the Centre and States to refrain from registering new FIRs, continuing probes or taking coercive measures under Section 124A while the “reconsideration” of the provision was underway.
The offence of sedition, which was included in section 124A of the Indian Penal Code (IPC) in 1890, has been under intense public scrutiny for its use as a tool against expressions of dissent, including on social media. The petitioners submitted in court that about 13,000 people were already in jail under the sedition provision. During colonial rule, the British used the sedition law to suppress dissent and imprison freedom fighters such as Mahatma Gandhi and Bal Gangadhar Tilak.
A batch of petitions filed by lawyers, journalists, and civil society organisations challenged the law, arguing that the law was “per se unconstitutional” and pre-dated the Constitution itself. At first, the Centresubmitted in Court that there was no need to reconsider the 1962 Constitution Bench judgment in the Kedarnath Singh v State of Bihar case, which upheld the validity of the sedition law. The twist in the case came in a May 9 affidavit filed by the Centre indicating that it would re-examine Section 124A, inspired by Prime Minister Narendra Modi’s “belief” that the nation should work harder to shed “colonial baggage”.
Aiming to prevent the misuse of Section 124A while it was being reconsidered, the Court directedthat persons accused in fresh cases were free to approach courts, which would examine cases keeping in mind the Supreme Court’s order and the Centre’s “clear” stand that the provision was abused and needed “re-examination”. In October, the Court said that its interim order would continue to be in place, giving the Centre more time to take “appropriate steps” to review the provision.
The Hindu resources:
Explainer:India’s sedition law, its usage, and the opinions around it
Editorial: Frozen sedition
The recognition of sex work
Sex workers at Sonagachi, the country’s biggest collective of sex workers in North Kolkata celebrate the recent recognition of the Supreme Court of sex work as a profession. | Photo Credit: DEBASISH BHADURI
On May 28, the Supreme Court partially fulfilled the long-standing demand of sex workers that their work be decriminalised in an order upholding the rights of the exploited, vulnerable section. In a significant order recognising sex work as a “profession”, a three-judge Bench led by Justice L. Nageswara Rao held that consenting practitioners of sex work were entitled to dignity and equal protection under law.
“It need not be gainsaid that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21 of the Constitution. Sex workers are entitled to equal protection of the law.”Supreme Court May 28, 2022
The Court came down heavily on the violent “attitude” of the police toward sex workers, remarking, “it is as if they are a class whose rights are not recognised”. The Bench directed the police to neither interfere nor take criminal action against adult and consenting sex workers, and whenever there was a raid on a brothel, to not “harass” sex workers, observing that “voluntary sex work is not illegal and only running the brothel is unlawful”.
It not only upheld the dignity of consenting sex workers but also said that the child of a sex worker should not be separated from the mother merely on the ground that she was in the sex trade.
The Court also extended medico-legal care to sex workers— it said that sex workers who were victims of sexual assault should be provided with every facility including immediate medico-legal care, without discrimination. It also gave directions to be followed by the media while reporting on sex workers and suggested that the Centre and States involve sex workers or their representatives to reform laws.
The Court reiterated its 2011 judgment in the Budhadev Karmaskar case, where it ruled that sex workers were also entitled to a “life of dignity”. It also set up a panel to look at prevention of trafficking, rehabilitation, and conditions conducive for sex workers who wish to continue work. With its 2022 order, the Court essentially put the ball in the Government’s court to draw up appropriate legislation to free consenting sex workers from stigma and grant them workers’ rights. Notably, the Court still awaits the Government’s response to the 2011 panel’s recommendations that adult sex workers should not be “arrested or penalised or harassed or victimised”.
The Hindu Resources:
Editorial: Sex as work
Upholding sweeping powers of the PMLA
The Supreme Court in 2022 upheld the core amendments made to the Prevention of Money Laundering Act (PMLA), which gives the government and the ED some virtually unbridled powers | Photo Credit: Getty Images/iStockphoto
In a July 27 verdict that drew criticism from various quarters for potentially allowing personal liberty to be subject to executive excess, a Special Bench of Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar upheld the core amendments made to the Prevention of Money Laundering Act (PMLA), which gives the government and the Enforcement Directorate (ED) virtually unbridled powers of summons, arrest, and raids, and makes bail nearly impossible, while shifting the burden of proof of innocence on to the accused rather than the prosecution.
“Money laundering is an offence against the sovereignty and integrity of the country. This is a sui generis (unique) legislation…The Parliament enacted the Act as a result of international commitment to sternly deal with the menace of money laundering of proceeds of crime having transnational consequences…”Supreme Court July 27, 2022
Over 240 petitions were filed against the amendments, brought in the form of Money Bills, claiming that they violated personal liberty, procedures of law, and the constitutional mandate.
The PMLA tackles laundering of money made through a crime. It has a three-part schedule of offences (or ‘predicate offences’) listing the various crimes that result in tainted money, such as terrorism, drug trafficking, corruption and cheating. An explanation was added in 2019 to clarify the scope of the definition of money laundering under Section 3. Petitioners objected to this, saying that the original wording meant that only showing tainted money as untainted and integrating it into the economy would constitute the offence.
The Court, however, rejected this challenge, holding that the explanation added by the Centre did not expand the scope of the original definition but was only clarificatory. The Bench said that the generation of money through crime and its integration with the formal economy are both independent offences, and it would be wrong to say thatthe offence of money laundering is complete only if the latter activity takes place. This interpretation by the top court rendered holding or using the proceeds of crime as much an offence as the projecting or converting of the proceeds into legal money or property.
The petitioners also argued against the sweeping powers of arrest given to the ED, allowing it to arrest a person without informing him of the charges. This power, they said, was violative of the right to ‘due process’ enshrined in Article 21 of the Constitution. But the court rejected the notion that the ED had been given blanket powers of arrest, search of person and property and seizure, saying that there were “in-built safeguards” within the Act, including the recording of reasons in writing while effecting arrest.
The Court also held that the Enforcement Case Investigation Report (ECIR), on the basis of which the agency works on a case and which is not a public document, could not be equated to an FIR filed in ordinary cases. The Bench said it was not a violation of Constitutional rights if the ECIR was not shown or supplied to the accused, adding that “so long as the person has been informed about grounds of his arrest,” it was in consonance with the mandate of Article 22(1) of the Constitution.
Upholding the onerous bail conditions imposed by the PMLA on the accused, the Court said that money laundering was no ordinary offence and was an “aggravated form of crime the world over”, emphasising the need for “creating a deterrent effect” through a stringent law.
The Hindu resources:
Explainer: What has the Supreme Court said on PMLA’s validity?
Explainer: Has bail under PMLA become near-impossible?
Editorial: Narrow view: On the Supreme Court’s PMLA verdict
Podcast: What are the implications of the Supreme Court’s PMLA judgement? | In Focus podcast
Abortion for unmarried women
The Supreme Court in 2022 ruled that single and unmarried women have the same right to medically safe abortions as married women. (representational image)
In a triumph for the right to equality, dignity, privacy, and bodily autonomy of women, the Supreme Court, in a historic judgment on September 29, made possible the consonant functioning of the letter of the law with its practice by ruling that single and unmarried women have the same right to medically safe abortion as married women.
“The rights of reproductive autonomy, dignity and privacy under Article 21 of the Constitution gives an unmarried woman the right of choice as to whether or not to bear a child on a similar footing as that of a married woman.”Supreme CourtSeptember 29, 2022
The petitioner, a 25-year-old woman who had become pregnant with consent but did not want to carry it to term as her partner refused to marry her, first approached the Delhi High Court. The High Court in its order, took the technical view, as Rule 3B (2003) of the Medical Termination of Pregnancy (MTP) Act, 1971, listed that women who were rape survivors, minors, and those with physical disabilities, and mental illness were eligible for termination of pregnancy and did not explicitly include single women who had become pregnant with consent.
However, the Supreme Court Bench led by Justice D.Y. Chandrachud pried open the constraints of the country’s 51-year-old abortion law, which bars unmarried women from terminating pregnancies which are up to 24 weeks old.
“The rights of reproductive autonomy, dignity and privacy under Article 21 of the Constitution gives an unmarried woman the right of choice as to whether or not to bear a child on a similar footing as that of a married woman,” Justice Chandrachud held.
The Court declared that barring single or unmarried pregnant women from accessing abortion was violative of the right to equality before law and equal protection enshrined under Article 14 of the Constitution. It allowed single and unmarried women whose pregnancies are between 20 and 24 weeks to access safe and legal abortion care. Notably, this ruling assumes significance at a time when unsafe abortions remain a leading cause of maternal mortality.
In a significant move, the Court also recognised marital rape as a factor while interpreting the MTP Act. The court said that under the Act, the meaning of the words “sexual assault” or “rape” in Rule 3B(a) included a husband’s act of sexual assault or rape committed on his wife. “The meaning of rape must therefore be understood as including marital rape, solely for the purposes of the MTP Act and any rules and regulations framed thereunder,” it held.
The Hindu resources:
Explainer: How has the Supreme Court expanded abortion rights?
Editorial: No discrimination: On Supreme Court’s abortion ruling
Altering reservations through EWS
The Supreme Court in 2022 upheld the 10% EWS quota (representational image) | Photo Credit: Getty Images/iStockphoto
The Supreme Court’s judgement upholding economically weaker sections (EWS) quota marked a major change in the country’s approach to reservations— from using it as a tool of affirmative action for those belonging to historically disadvantaged social groups to using solely economic criteria or income as the basis for special provisions.
The Constitution Bench of the Supreme Court on November 7 upheld the validity of the 103rd Constitutional Amendment in a 3:2 majority decision. The Amendment, introduced by the BJP government in 2019 and passed by both houses of Parliament, provides 10% reservation in government jobs and educational institutions to the ‘economically weaker sections of the society’, claiming to cater to the “poorest of the poor”, but excluding Scheduled Castes (SC), Scheduled Tribes (ST), Socially and Educationally Backward Classes (SEBC) and Other Backward Classes (OBC) from its scope.
“Reservation is an instrument of affirmative action by State so as to ensure all inclusive approach. It is an instrument not only for inclusion of socially and educationally backward classes...Reservations for EWS does not violate basic structure... ”Majority opinion, Supreme CourtNovember 7, 2022
While a constitutional amendment cannot normally be struck down, an earlier Supreme Court judgement had created the ‘basic structure doctrine’ under which Parliament’s power to amend the Constitution was subjected to inherent limitations.
What is the ‘basic structure’ doctrine?
Justices Dinesh Maheshwari, Bela Trivedi and J.B. Pardiwala constituted the majority opinion on the Bench. Negating the petitioners’ argument that reservation on the sole basis of economic criteria violated the ‘basic structure’ by breaching the equality norm, the majority held that it did not do so and asserted that unless the EWS segment was exclusive, the object of furthering economic justice could be achieved.
What does Supreme Court’s judgement on EWS Reservation mean? | Talking Politics with Nistula Hebbar
The majority took an expansive view that there was no flaw in addressing economic weakness through reservation as an instrument of affirmative action and it should not be confined to socially weaker sections such as the SCs, STs, SEBCs, and the non-creamy layer of OBCs. Justice Maheshwari rejected the argument that the 10% EWS quota would breach the 50% limit on reservations. He said the 50% rule formed by the Supreme Court in the Indira Sawhney judgment of 1992 was “not inflexible”. Further, it held that the 50% limit applied to reservations only in the SC/ST/SEBC/OBC communities and not the general category.
In the minority, Justice Ravindra Bhat and former Chief Justice U.U. Lalit wrote that though a quota on the basis of economic deprivation, destitution and poverty was not wrong in itself or “constitutionally indefensible”, the “othering” or exclusion of socially and educationally disadvantaged classes on the grounds that they enjoyed the benefits of a pre-existing 50% reservation on their caste and class origins, would mean heaping “fresh injustice” based on their past disability.
The Hindu resources:
Explainer: How has the EWS ruling altered reservations?
Podcast: Isn’t reservation for the poor a good thing? | The Hindu Parley podcast
Editorial: Economics and exclusion: On Supreme Court upholding 10% EWS quota
Intervention on hate speech
Supreme Court in 2022 asked the police to take suo motu action in dealing with hate speech (representational image) | Photo Credit: Getty Images/iStockphoto
Underscoring the constitutional values of secularism and fraternity among all religions and social groups, the Supreme Court in an order on October 21, asked the police to be proactive in dealing with hate speech by taking immediate suo motu legal action without waiting for a formal complaint.
“The Constitution of India envisages Bharat as a secular nation and fraternity…We feel the court is charged with the duty to protect the fundamental rights and also protect and preserve the constitutional values, in particular the rule of law and the secular democratic character of the nation.”Supreme Court October 21, 2022
The petitioner highlighted the “unending flow of hate speeches” targetting the Muslim community. They flagged the “total inaction” on the part of the police in three States (Delhi, Uttar Pradesh, and Uttarakhand) after comments were made at religious events, which had given rise to “despondency and angst” within the Muslim community.
The Supreme Court said in its verdict that it is “tragic what we have reduced religion to” in the 21st century and a “climate of hate prevails in the country”.
“Very shocking statements have been made in a country that has to be religion-neutral,” the Court had noted.
The court directed that FIRs should be registered and criminal proceedings initiated against the makers of hate speech “irrespective of their religion so that the secular character of the country is preserved”. The order even highlighted some of the specific provisions of the IPC under which hate speech offenders may be booked— Sections 153A (promoting enmity between different groups on the ground of religion), 153B (imputations, assertions prejudicial to national integration), 505 (public mischief) and 295A (deliberate and malicious acts intended to outrage religious feelings).
A Bench with Justices K.M. Joseph and Hrishikesh Roy ordered that any “hesitation” to comply with the direction would attract proceedings for contempt of the Supreme Court against the erring officers.
The Hindu resources:
Explainer: What is ‘hate speech’, and how is it treated in Indian law?
Editorial: Vital intervention: On the Supreme Court order against hate speech
The split on Hijab
Pro-Hijab supporters in solidarity with Muslim women, taking out a rally in Bengaluru on February 26, 2022. | Photo Credit: MURALI KUMAR K, The Hindu
Earlier this year, Muslim girl students wearing hijab were barred entry into pre-university classes in a Karnataka district. This caused widespread uproar and was followed by a prohibitive order of the State government mandating either a prescribed uniform or any dress that was “in the interest of unity, equality and public order”. The Karnataka High Court upheld the government’s order amid protests in various States arguing why the headscarf, which does not interfere with the uniform, was coming in the way of girl students’ right to education.
The matter then reached the Supreme Court, where a two-judge Bench of delivered a split verdict on the issue, conflicted between a girl student’s freedom to wear a headscarf and the state’s interest in keeping schools a place of equality and secularism. Justice Hemant Gupta upheld the Karnataka government’s prohibitive order of February 5, saying that “apparent symbols of religious belief cannot be worn to secular schools maintained from State funds”. Justice Gupta said ‘secularity’ meant uniformity, manifested by parity of uniform among students.
Differing from Justice Gupta, Justice Sudhanshu Dhulia asserted that secularity meant tolerance to “diversity”. He observed that wearing or not wearing a hijab to school was “ultimately a matter of choice”. Justice Dhulia pointed out that for girls from conservative families, “her hijab is her ticket to education”.
“Asking the girls to take off their hijab before they enter the school gates, is first, an invasion of their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education… there shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka,” Justice Dhulia held.
The split verdict gave rise to the question of whether matters inviting sharply divided opinions and having significant political implications should be placed before Division Benches of an even number. The verdict is yetto be re-heard by a larger bench.
The Hindu resources:
Video explainer: Watch | Karnataka’s hijab controversy explained
Editorial: Split over hijab: On the Supreme Court verdict
Talking Politics with Nistula Hebbar | What does the Supreme Court split verdict on hijab ban mean?
