The year that went by was eventful and momentous with numerous path-breaking judgments and landmark legislation. The year 2019 began with the Constitution (One Hundred and Twenty Fourth Amendment) Act, 2019 that the reservation of up to 10% for Economically Weaker Sections in educational institutions and public employment. On January 12, 2019, the Act received the Presidential assent and a gazette was released on it which turned it into a Law. Gujarat became the first state to enact this law on January 14, 2019. This law marks a watershed movement for economic justice guaranteed under the Constitution.
As a befitting sequel to the August 2017 decision of the Apex Court that triple talaq be unconstitutional, came the Muslim Women (Protection of Rights on Marriage) Act, 2019. This has made the declaration of triple talaq a cognizable offence, attracting up to three years’ imprisonment with a fine.
The offence will be cognizable only upon information relating to the offence is given by: (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.
This legislation paved the way for the protection of Muslim women and the larger issue of gender equity in the nation. Though the law came in July 2019, it is given retrospective effect from September 19, 2018.
Redemption of Jammu & Kashmir
On August 5, 2019, Union Home Minister Amit Shah announced in Rajya Sabha the Presidential proclamation of the Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) under Article 370 of the Constitution. Whereas the 1954 order specified that only some articles of the Indian Constitution to apply to the state, the new order removed all such restrictions. In effect, the separate Constitution of Jammu & Kashmir was rescinded.
Soon after the Presidential Order 2019, the Home Minster moved a resolution recommending that the President issue an order under Article 370(3) rendering all clauses of Article 370 inoperative. After the resolution was adopted by both houses of the Parliament, the President issued Constitutional Order 273 on August 6, 2019 replacing the extant text of Article 370 with the new text, wherein - all provisions of Constitution stood applied to the State of Jammu & Kashmir.
Simultaneously, the Jammu & Kashmir Reorganisation Bill, 2019 came to be introduced to change Jammu & Kashmir's status of a state to carving out two separate union territories: Union Territory of Jammu & Kashmir and Union Territory of Ladakh. The two union territories came into existence on October 31, 2019, which was celebrated as National Unity Day.
On August 9, 2019 saw enactment of Consumer Protection Act, 2019, which comprehensively amended the existing law. The Act, among other things, defined six major consumer rights - i) be protected against marketing of goods and services which are hazardous to life and property; (ii) be informed of the quality, quantity, potency, purity, standard and price of goods or services; (iii) be assured of access to a variety of goods or services at competitive prices; and (iv) seek redressal against unfair or restrictive trade practices. It also provided for the imposition of heavy penalty (ten lakh for the first offence and up to fifty lakh for repeated ones) misleading advertisements.
Citizenship Amendment Act, 2019
At the last phase of the year came the CAA 2019, the legislation that decriminalised the religiously persecuted communities of Hindu, Sikh, Buddhist, Jain, Parsi or Christian from three of our neighbouring nations—Afghanistan, Bangladesh and Pakistan. With the coming into force of CAA, immigrants from these six persecuted communities, who entered Bharat on or before the December 31, 2014 and who have been exempted by the Central Government under the Passport (Entry into India) Act, 1920 or Foreigners Act, 1946 will not be treated as illegal immigrants. Further, as per the Third Schedule to CAA, the period of naturalisation required for the citizenship for these six persecuted communities has been reduced from eleven years to five years.
An innocuous piece of legislation that does not apply to any citizen of our nation, was grossly misinterpreted by urban Naxals and Congress ecosystem to create communal riots across Bharat.
Landmark Judgments of 2019
As the year draws to a close, it is equally important to chronologically recapitulate some of the important judgements rendered by the Supreme Court of India.
Teachers are entitled to Gratuity
On January 7, 2019, the Supreme Court, in the case of Birla Institute of Technology vs. the State of Jharkhand, placing reliance on an earlier decision, held that teachers are not entitled to gratuity. However, in a rare move, on January 9, 2019, the apex court stayed its own judgement suo motu and then passed a detailed order subsequently, correcting its judgement – teachers are entitled to gratuity.
Constitutional validity of IBC
On January 25, 2019, the Supreme Court, in its judgement in the case of Swiss Ribbons Private Limited v Union of India, upheld the constitutional validity of the Insolvency and Bankruptcy Code, 2016. The court set to rest the controversy on the challenge to some of the major sections that distinguished between operational creditors and financial creditors. The Court upheld this distinction as based on intelligible criteria.
Restoration of conviction in Haren Pandya Case
Supreme Court on July 5, 2019 allowed the appeals of the Central Bureau of Investigation (CBI) and the Gujarat government challenging the Gujarat High Court order by which the convicts were acquitted of murder charges in the case and convicted Mohammed Parvez Abdul Kayuum and eleven others for killing former Gujarat home minister Haren Pandya in 2003.
Equity in Compensation
In Union of India vs. Tarsem Singh matter, the Supreme Court held section 3J of the National Highways Act, 1956, as unconstitutional to the extent that it excludes payment of solatium and interest payable under the Land Acquisition Act. In effect, the apex court brought the levels of compensation paid under the National Highways Act at par with the Land Acquisition Act.
Jai Shri Ram
In a unanimous judgement, the five-judge Constitutional Bench of the Supreme Court held the entire 2.77 acres of land must be handed over to the Hindus for construction of Ram Mandir. Alongside, the court ordered for the grant of an alternative plot of five acres to be given to Sunni Wakf Board for construction of a mosque. On December 12, 2019, series of review petitions were also dismissed which challenged the unanimous verdict.
After considering thousands, the Court held that on the balance of probabilities, there is clear evidence to indicate that the worship by the Hindus in the outer courtyard continued unimpeded in spite of the setting up of a grill-brick wall in 1857. Their possession of the outer courtyard stands established together with the incidents attaching to their control over it.
The Court further held that there is evidence on a preponderance of probabilities to establish worship by the Hindus prior to the annexation of Oudh by the British in 1857. The Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century.
The apex court discarded the three-way bifurcation by the Allahabad High Court as the same was legally unsustainable. The Supreme Court held that even as a matter of maintaining public peace and tranquillity, the solution which commended itself to the High Court is not feasible. With these findings that Court issued the following directions:
i) The Central Government shall, within a period of three months from the date of this judgment, formulate a scheme pursuant to the powers vested in it Under Sections 6 and 7 of the Acquisition of Certain Area at Ayodhya Act 1993. The scheme shall envisage the setting up of a trust with a Board of Trustees or any other appropriate body Under Section 6. The scheme to be framed by the Central Government shall make necessary provisions in regard to the functioning of the trust or body including on matters relating to the management of the trust, the powers of the trustees including the construction of a temple and all necessary, incidental and supplemental matters;
(ii) Possession of the inner and outer courtyards shall be handed over to the Board of Trustees of the Trust or to the body so constituted. The Central Government will be at liberty to make suitable provisions in respect of the rest of the acquired land by handing it over to the Trust or body for management and development in terms of the scheme framed in accordance with the above directions; and
(iii) Possession of the disputed property shall continue to vest in the statutory receiver under the Central Government, until in exercise of its jurisdiction Under Section 6 of the Ayodhya Act of 1993, a notification is issued vesting the property in the trust or other body.
The Ayodhya Judgement marks a watershed moment for the unity and integrity of Bharat. The way nation welcomed the verdict was as graceful as the verdict itself. All right-thinking sections across the communities welcomed the verdict and pledged to adhere to it in letter and spirit. As RSS Sarsanghachalak Shri Mohan Bhagwat and Prime Minister Shri Modi rightly said the judgement should not be viewed from the narrow prism of victory or vanquish. The judgement is a victory to the whole nation as it has cemented the bond of fraternity amongst all citizens cutting across all barriers. This historical verdict marks the harbinger of the new era of solidarity and unity.
CJI within RTI Ambit
In a historical verdict in the matter of Central Public Information Officer (CPIO) Supreme Court vs. Subhash Chandra Agarwal, the apex court categorically held that office of the Right to Information Act is applicable to the office of Chief Justice of India.
On November 14, 2019, the Supreme Court, by 3:2 majority, decided to refer the review petitions pending enabling to a larger bench to consider the legal question of whether essential religious practices can be interfered with by the courts. The Court held that in a legal framework where the courts do not have any epistolary jurisdiction and issues pertaining to religion including religious practices are decided in the exercise of jurisdiction Under Section 9 of the Code of Civil Procedure or Article 226/32 of the Constitution, the courts should tread cautiously. This is a time-honoured principle and practice.
In addition, the court framed the following questions to be decided in reference by a larger bench:
(i) Regarding the interplay between the freedom of religion Under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
(ii) What is the sweep of expression ‘public order, morality and health' occurring in Article 25(1) of the Constitution?
(iii) The expression 'morality' or 'constitutional morality' has not been defined in the Constitution. Is it overarching morality in reference to preamble or limited to religious beliefs or faith There is a need to delineate the contours of that expression, lest it becomes subjective.
(iv) The extent to which the court can inquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the Section of the religious group.
(v) What is the meaning of the expression 'sections of Hindus' appearing in Article 25(2)(b) of the Constitution?
(vi) Whether the "essential religious practices" of a religious denomination or even a Section thereof are afforded constitutional protection Under Article 26.
(vii) What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a Section thereof at the instance of persons who do not belong to such religious denomination?
The year 2019 saw significant developments in the domain of law – both of legislative origin as well as judge-made. The historical context of these legislations and judgments is as momentous as their future implication. On a deeper analysis, one can gather that the Supreme Court has moulded its relief to ensure larger and lasting justice along with peace and tranquillity.
The Congress and Urban Naxals ecosystem is expending pent up anger accumulated over the last year in the form of protests to CAA. As the understanding is dawning in the common masses, all illusions are getting effaced. All this said, as new Bharat is waking up to its moment of truth, one thing is undisputed by even the staunchest critics of our Union political regime. One may agree or disagree with the Union, but robustness with which legislation are tabled and approved and their adherence to the manifesto promises cannot be faulted with.
(Author is a practising advocate and founder of Navayana Law Offices)