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Year-end Special: 10 landmark judgments of 2013
If there was a year that redefined the concept of judicial activism in India, it could well be 2013.
Case after case the judiciary has reinforced the faith that the average Indian reposes in the unblemished pillar of democracy.
Over the years, the judiciary has developed a new normative regime of rights and insisted that a state cannot act arbitrarily but must act reasonably and in public interest.
From ordering the disqualification of convicted lawmakers and legislators to providing for the 'none of the above' option in electronic voting machines, the judiciary has augmented its moral authority and acquired new credibility with the people through activism and creativity.
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Upholding Section 377 of the IPC
It was clearly one of the most debated judgments of the year.
On December 11, a Supreme Court bench comprising justices G S Singhvi and S J Mukhopadhaya set aside the Delhi High Court's verdict which had in 2009 decriminalised gay sex among consenting adults in private.
It ruled that Section 377 in the Indian Penal Code will continue making gay sex -- "irrespective of age and consent" -- an offence punishable with a sentence up to life term and put the onus Parliament "to consider the desirability and propriety of deleting Section 377 from the statute book or amend it.
The bench discarded the "anxiety" shown by the high court "to protect the so-called rights of LGBT persons" and said that it had wrongly relied upon the judgments of other jurisdictions which may be informative in relation to the plight of sexual minorities but it could not be applied "blindfolded" for deciding the constitutionality of the law enacted by the Indian legislature.
Demolishing the argument that Section 377 targeted LGBTs, the court said that it did not criminalize a particular people or identity or orientation. "It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation," it said.
Activists campaigning for LGBT rights expressed anguish as well as fear of being vulnerable to all sorts of exploitation, prejudice and feeling ostracised.
Even the political class is divided on the issue. While the BJP supported the verdict, terming homosexuality as against the established norms of society, the government and the Congress went on an overdrive and indicated that various options, including ordinance, were available for negating the verdict.
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Providing the right to reject
On October 14, the Supreme Court recognised the right to negative vote for the electorate in the country.
Asserting that the move will go a long way in cleansing the political system of the country, the Apex court directed the Election Commission to have a "None Of The Above" button on electronic voting machines and ballot papers which can be used by the voters to reject all the candidates contesting elections in a constituency.
According to the Supreme Court order, negative voting would foster purity and vibrancy in elections as at the end of the list of candidates in EVMs and ballot papers, the electorate will have the option of "none of the above" which will give them an option to reject all those contesting polls.
"Negative voting will lead to systemic change in polls and political parties will be forced to project clean candidates. If the right to vote is a statutory right, then the right to reject candidate is a fundamental right of speech and expression under Constitution," the court said.
However, the much-discussed option proved to be a damp squib when it was implemented during the assembly polls in Delhi, Rajasthan, Madhya Pradesh, Chhattisgarh and Mizoram.
Many feel that it will make the candidates work harder to keep the faith of voters. Others argue that the mere introduction of NOTA makes no difference to 'corrupt' electoral system, unless they count it and if 50 per cent of the voters opt for NOTA, then it should be treated as a rejection of all candidates.
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Disqualification of criminal lawmakers
This was probably one verdict that RJD chief Lalu Prasad Yadav wished hadn’t come.
On July 11, the Supreme Court held that chargesheeted Members of Parliament and MLAs, on conviction for offences, will be immediately disqualified from holding membership of the House without being given three months’ time for appeal, as was the case before.
A bench of Justices A K Patnaik and S J Mukhopadhaya struck down as unconstitutional Section 8 (4) of the Representation of the People Act that allows convicted lawmakers a three-month period for filing appeal to the higher court and to get a stay of the conviction and sentence.
Section 8 of the RP Act deals with disqualification on conviction for certain offences: A person convicted of any offence and sentenced to imprisonment for varying terms under Sections 8 (1) (2) and (3) shall be disqualified from the date of conviction and shall continue to be disqualified for a further period of six years since his release. But Section 8 (4) of the RP Act gives protection to MPs and MLAs as they can continue in office even after conviction if an appeal is filed within three months.
The Bench found it unconstitutional that convicted persons could be disqualified from contesting elections but could continue to be Members of Parliament and State Legislatures once elected.
The first politicians to lose their Parliament membership were Congressman Rasheed Masood (convicted for cheating, criminal conspiracy and forgery and sentenced to 4 years in jail), RJD chief Lalu Prasad Yadav and JD-U MP Jagdish Sharma (both convicted in the Bihar fodder scam)
According to the Association of Democratic Reforms as many as 72 sitting MPs face criminal charges and could be disqualified if convicted for over two years
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Restoring the power of the red beacon
On December 11, the Supreme Court slammed the rampant misuse of red beacon lights on cars, saying the practice had “perhaps no parallel in the world democracies”.
A Bench of Justices G S Singhvi and C Nagappan directed the states to amend the Motor Vehicle Rules to restrict the use of the red beacon and impose an exemplary fine on those who misused it.
"The use of red lights on the vehicles carrying the holders of constitutional posts will in no manner compromise with the dignity of other citizens and individuals or embolden them to think that they are superior to other people, more so, because this distinction would be available to them only while on duty and would be co-terminus with their tenure," it said.
Urging the parliament to make laws for imposition of "adequate" and "deterrent" penalty for any misuse, the bench ordered the state governments to revise their lists of "high dignitaries".
The Bench said, "The red lights symbolise power and a stark differentiation between those who are allowed to use it and the ones who are not. A large number of those using vehicles with red lights have no respect for the laws of the country and they treat the ordinary citizens with contempt. The use of red lights on the vehicles of public representatives and civil servants has perhaps no parallel in the world democracies," it noted.
The bench said the last four decades have witnessed the best political and executive practices being distorted to a massive extent, and the best example of this is the use of symbols of authority, including red lights on vehicles of public representatives and civil servants of various cadres.
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Re-opening dance bars
Eight years after the Maharashtra government banned dance bars in Mumbai, the Supreme Court on July 16 gave its go-ahead to their reopening in the maximum city and elsewhere in the state
Deciding on the constitutionality of the ban on dance performances in bars in Maharashtra imposed under the Bombay Police (Amendment) Act of 2005, the apex court gave its order in favour of the bar owners and dancers’ union who had contended that the ban on bar dances in some establishments while permitting them in others was contrary to the rule of equality enshrined in Article 14.
The Act had prohibited ‘any type of dancing’ in an “eating house, permit room or beer bar” while allowing dance performances in three star and above hotels and other ‘elite’ establishments.
The Supreme Court had taken up the case after the state government contested the 2006 Bombay High Court order that the Act prohibiting dancing violated the right to carry on one’s profession under Article 19 of the Constitution. The HC also held that banning dances in some establishments while permitting them in others was contrary to the rule of equality.
The state government had sought to justify the ban in public interest, alleging that bar dancing is obscene and vulgar and depraves morals, fuels trafficking and prostitution and causes exploitation of women who dance in the bars.
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Making sense of social networking
During the first half of the year, numerous complaints of harassment for posts on social networking websites had sparked public outrage
Then on May 16, the Supreme Court, while delivering its verdict on a plea by Shreya Singhal who had petitioned the court against the arrest of an activist Jaya Vindhyalaya under provisions of the IT Act on a complaint filed by an Andhra Pradesh MLA, ruled that no person would be arrested under Section 66A of the IT Act for posting objectionable comments on social networking websites without prior approval from an officer of the Inspector General of Police-rank
In view of public outrage over people being arrested for making comments or liking posts on Facebook, Centre had on January 9 issued advisory to all states and UTs asking them not to arrest a person in such cases without prior approval of a senior police officer.
The advisory issued by the Centre says that, "State governments are advised that as regard to arrest of any person in complaint registered under section 66A of the Information Technology Act, the concerned police officer of a police station may not arrest any person until she/he has obtained prior approval of such arrest from an officer, not below the rank of Inspector General of Police (IGP) in metropolitan cities or of an officer not below the rank of Deputy Commissioner of Police (DCP) or Superintendent of Police (SP) at district level, as the case may be.
"We direct the state governments to ensure compliance with the guidelines (issued by Centre) before making any arrest," a bench of Justice BS Chauhan and Justice Dipak Misra said.
The apex court is still examining the constitutional validity of section 66A of the IT Act, which section states that any person who sends, by means of a computer resource or communication device, any information that was grossly offensive or has a menacing character could be punished with imprisonment for a maximum term of three years, besides imposition of appropriate fine
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Setting the parrot out of the cage
On May 8, using unusually scathing language, the Supreme Court called the country's premier investigating agency, the Central Bureau of Investigation a 'caged parrot'
The apex court's observations came after examining CBI Director Ranjit Sinha’s nine-page affidavit on the alleged changes made by Law Minister Ashwani Kumar and the then Attorney General of India GE Vahanvati, among others.
"It's a sordid saga that there are many masters and one parrot," the bench said.
"The CBI must know how to stand up against all pulls and pressures by government and its officials," the bench headed by Justice RM Lodha and comprising Justices Madan B Lokur and Kurian Joseph said.
The bench observed that the job of CBI is not to interact with government officials but to carry out interrogation to find out the truth.
Voicing concern over Centre's interference in the draft status report, the court pulled up joint secretaries of the PMO and coal ministry for meeting CBI officials and suggesting changes in the report.
Later in July, the CBI told the apex court that administrative and financial powers of the CBI director are "limited" and more is needed to be done than what has been proposed by the Centre to ensure autonomy and insulate it from extraneous influences.
The Centre, though, maintained that the director of the CBI cannot be given the ex-officio power of secretary as it will amount to "vesting unbridled power in one authority".
However, in December, the SC gave more teeth to the CBI, ruling that the investigative agency need not take any prior approval from the Centre to prosecute senior bureaucrats in court-monitored corruption cases. By doing away with the provisions of prior sanction from the Centre, it cleared the deck for the agency to prosecute bureaucrats allegedly involved in the Coalgate scam.
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Okaying Kudankulam
One landmark judgment when the Supreme Court weighed in favour of development over environment came on May 6 when the Apex court dismissed a plea against the commissioning of the Kudankulam nuclear plant in Tamil Nadu.
Delivering its order, the two-judge bench of K S Radhakrishnan and Dipak Misra also issued 15 guidelines on commissioning, safety and security, and environmental issues concerning the plant, even as it directed the authorities, as a peace offering, to withdraw criminal complaints against the activists opposed to the project.
Local residents and activist groups have been holding protests against the Kudankulam Nuclear Power Project situated in Tirunelveli district of Tamil Nadu, leading to a delay in its commissioning. The protests gained momentum in 2011 after the Fukushima disaster in Japan.
The Bench said: “Larger public interest of the community should give way to individual apprehension of violation of human rights and right to life guaranteed under Article 21 of the Constitution.”
Describing the negative aspects of the nuclear power plant as “minor inconveniences and minor radiological detriments”, the Bench noted: “The benefits we reap from KKNPP are enormous since nuclear energy remains an important element in India’s energy mix which can replace a significant part of fossil fuels like coal, gas oil etc.”
India has a mammoth population unlike developed countries, and the consumption of electricity was growing. The Bench said: “To sustain rapid economic growth, it is necessary to double the supply of energy. Energy tariff is also increasing, and nuclear power in the long run will be much cheaper than other forms of energy.”
The Bench added: “[Kudankulam] Nuclear power plant is being established not to negate the right to life but to protect the right to life guaranteed under Article 21 of the Constitution.”
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Keeping hope alive for cheaper cancer drug
In yet another landmark judgment, the Supreme Court on April 1 rejected a patent plea by Swiss drugmaker Novartis AG for cancer drug Glivec, boosting the case for cheaper drugs for life-threatening diseases.
The decision in the seven-year legal battle was keenly awaited by the two most interested parties -- big pharma companies and health aid groups -- with both sides saying the outcome will set a precedent with far-reaching consequences for the future availability of the drugs.
A bench of justices Aftab Alam and Ranjana Prakash Desai refused to give credence to Novartis' claim that 'Imatinib Mesylate', a substance used in the cancer drug, is a new product and the outcome of an invention.
In its 98-page verdict, the bench said that law of patent in the country should not be developed on the lines where patent is determined not on the intrinsic worth of invention but by the artful drafting of companies' claims.
The legal battle over the patent, in which the claim of the Swiss firm was vehemently opposed by the Indian companies and health activists, was keenly watched by pharma companies across the world and will clear hurdles coming in the way of the manufacture of generic drugs in the country for cancer patients.
According to official estimates there are over 28 lakh cancer patients in the country.
"We certainly do not wish the law of patent in this country to develop on the lines where there may be a vast gap between the coverage and the disclosure under the patent; where the scope of the patent is determined not on the intrinsic worth of the invention but by the artful drafting of its claims by skillful lawyers, and where patents are traded as a commodity not for production and marketing of the patented products but to search for someone who may be sued for infringement of the patent," the bench said.
The apex court judgement can pave the way for cancer patients getting cheaper drugs as a one-month dose of Glivec costs around Rs 1.2 lakh, while generic drugs, manufactured by Indian companies, for the same period, are priced at Rs 8,000.
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Unshackling bureaucracy
Bureaucrats in India have always complained of political interference while discharging their duties.
The Supreme Court, on October 31, addressed that issue in a landmark verdict. The court ruled that bureaucrats should not act on verbal orders given by political bosses, as it sought an end to frequent transfers and suggested a fixed tenure to insulate them from political interference.
Suggesting sweeping reforms in the functioning of bureaucracy, a bench headed by Justice K S Radhakrishnan said Parliament must enact a law to regulate postings, transfers and disciplinary action against bureaucrats.
Holding that much of the deterioration in bureaucracy is because of political interference, it said that civil servants should not act on verbal orders given by political executives and all actions must be taken by them on the basis of written communication.
The bench, which also had Justice P C Ghose, said giving a fixed minimum tenure to a civil servant will not only promote professionalism and efficiency, but also good governance.
It asked the Centre and all State governments along with Union Territories to issue directions within three months for providing fixed tenure to civil servants.
The bench also said Civil Services Board should be constituted at the Centre and State-levels.
The verdict, which is on the line of apex court's earlier order on police reforms for giving fixed tenure to senior police officers in Prakash Singh case, will go a long way in giving freedom and independence to the functioning of bureaucracy.
The judgment came close on the heels of controversies surrounding Ashok Khemka, Indian Administrative Service officer of Haryana cadre, over DLF-Robert Vadra land deal, and Durga Sakhti Nagpal, Uttar Pradesh cadre IAS officer, who was targeted by the state government for alleged misconduct.
The apex court passed the verdict on a Public-Interest Litigation filed by 83 retired bureaucrats, including former Cabinet Secretary T S R Subramanian seeking its directions for insulating bureaucracy from political interference.
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