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Monday, July 23, 2018

Ayodhya to Memorandum of Procedure, Supreme Court battles could have political echoes

Outside the courtrooms, allegations of judicial activism, and run-ins of the judiciary with the legislature and executive, can be expected to continue.

Written by Ananthakrishnan G | Updated: December 27, 2017 12:33:13 am
(Illustration: C R Sasikumar)

2018 promises to be another action-packed year for the Supreme Court — cases with major political and social ramifications are listed for hearing, apart from an expected flood of public interest litigation (PIL). Attempts to rein in alleged judicial corruption, and to bring about greater transparency in appointments to the higher judiciary through implementation of the Memorandum of Procedure (MoP), and allowing audio and video recording of proceedings, will be closely watched. Outside the courtrooms, allegations of judicial activism, and run-ins of the judiciary with the legislature and executive, can be expected to continue.

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On February 8, a three-judge Bench headed by Chief Justice of India (CJI) Dipak Misra will commence hearing on appeals against the September 30, 2010 judgment of the Allahabad High Court that ordered a three-way division of the disputed 2.77 acres of the Babri Masjid-Ram Janmabhoomi site, giving a third each to the Nirmohi Akhara sect, the Sunni Central Wakf Board, UP, and Ramlalla Virajman, the infant Lord Ram who sits where he was placed under a tarpaulin canopy by the kar sevaks who demolished the Babri Masjid on December 6, 1992. On May 9, 2011, the apex court had stayed the operation of the order during the pendency of the appeals, and ordered status quo at the disputed site and adjoining 67.7 acres of land acquired by the Centre in 1993. The proceedings will likely provoke political posturing, and could impact the campaign for the state elections in 2018, as well as the Lok Sabha election of 2019.


A batch of petitions is pending in the Supreme Court challenging the constitutional validity of the Aadhaar Act and the government’s decision to link bank accounts, mobile phone numbers and other services to Aadhaar, and to make Aadhaar mandatory for availing benefits of various welfare schemes of the state. The petitioners have argued that Aadhaar infringes upon citizens’ fundamental right to privacy. They have alleged that making it mandatory, even though the Act says it will be voluntary, opens the door to unauthorised surveillance. According to the petitioners, Aadhaar’s use of biometric details like fingerprints and iris scans violates bodily and informational privacy, and carries with it the possibility of the collected data being misused. The government has, however, contended that Aadhaar is needed to plug leaks in state subsidy programmes, and to check corruption and black money. The first petition challenging Aadhaar was filed in 2012, long before the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 was notified. The petition was referred to a Constitution Bench in 2015, and a five-judge Constitution Bench was set up this year. The final hearing on the petitions will begin on January 17, 2018.

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Living Will

The Supreme Court will deliver its verdict next year on whether a person can be allowed to execute a Living Will, and on the question of legalising passive euthanasia. Also known as an advance directive, a Living Will is an instrument that tells a physician in advance what end-of-life medical care the executors of the Will have chosen for themselves. It helps the individual control and influence decisionmaking on his/her healthcare in situations in which he/she cannot make or communicate such decisions. The petitioner NGO Common Cause has pleaded that the right to execute a Living Will is associated with the right to privacy and right to life and personal liberty, and argued that it is legal in many countries. It has contended that allowing such a Will with necessary safeguards would enable people to opt for death without prolonging their suffering. The Centre has said that it is already vetting a draft law to allow passive euthanasia, but that it is opposed to allowing Living Wills because of the scope for their misuse.

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Recording Proceeding

Article 129 of the Constitution lays down that “the Supreme Court shall be a court of record”. A court of record is one whose acts and proceedings are enrolled for perpetual memory and testimony. In modern times, that would require audio and video recordings of the proceedings of the apex court. But that has not happened yet, as judges have their reservations. Except on rare occasions, Supreme Court judges do not even use the microphones installed in the courtrooms. However, a Bench of Justices A K Goel and U U Lalit in November spoke in favour of recording the proceedings: “Judges don’t need privacy in court proceedings. Nothing private is happening here…” The court also opined that installing CCTV cameras in courtrooms was in the larger public interest. Acting on a PIL seeking audio and video recordings of court proceedings, the Supreme Court is currently monitoring the installation of CCTVs in other courts and tribunals across the country — even though it is yet to bite the bullet itself.

Memorandum of Procedure

The question of appointment of judges of the higher judiciary has for long been a bone of contention between the legislature and the judiciary. Allegations of corruption and other undesirable practices involving some judges has brought the collegium system devised by the Supreme Court under the scanner. The government had made clear its intention to change the system — and in December 2014, it replaced the collegium system of appointments with the National Judicial Appointments Commission (NJAC), which sought to give politicians and civil society the final say in the appointment of judges to the higher judiciary. In October 2015, a five-judge Constitution Bench struck down the Constitution (99th Amendment) Act and the NJAC Act, which had proposed that appointments to the higher judiciary should be done by a six-member body headed by the Chief Justice of India, and including two seniormost SC judges, the Union Law Minister and two “eminent” persons selected by a panel including the Prime Minister, the CJI and the leader of the largest Opposition party in the Lok Sabha. The court ruled that the political executive could not be given any hand in the process of appointment of judges, and that the 20-year-old collegium (made up of the five seniormost judges of the Supreme Court) system would continue.

In December 2015, the SC instead asked the government to “finalise the existing Memorandum of Procedure (MoP) by supplementing it in consultation with the Chief Justice of India”. The MoP is the document that lays down the process to be followed in the appointment of Supreme Court and High Court judges. It came into existence on the directions of the Supreme Court in the Second Judges Case of 1993 (Supreme Court Advocates-on-Record Association and Another versus Union of India), wherein a nine-judge Constitution Bench devised the collegium system of appointments. Plans to revise the MoP have, however, been stuck, with the SC objecting to some of the recommendations in the government draft.

The government’s efforts to change the mechanism of judicial appointments got a boost after the July 4, 2017 Supreme Court verdict in the Justice (retired) C S Karnan case. Two judges, who were part of the seven-judge Bench that convicted and sentenced the former Calcutta High Court judge for contempt, said in their judgment that the case “highlighted the need to revisit the process of selection and appointment of judges”.


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