In 2021, the Supreme Court has several cases of constitutional importance that may be heard. In this year, we will also see major changes in the composition of the judges as five judges—including the incumbent Chief Justice of India (CJI)—are set to retire.
The year ahead is crucial since several issues pending adjudication have been triggers for widespread violence in different parts of the country resulting in fatalities. The adjudication of the review plea by a nine-judge bench in the Sabarimala issue (where a five-judge bench allowed women of all ages to enter the sanctum sanctorum), the constitutionality of the revocation of the special status accorded to the erstwhile state of Jammu and Kashmir, the constitutional validity of the Citizenship Amendment Act are a few key issues that need to be heard by the apex court.
BOOM looks at nine key issues and other developments at the Supreme Court in 2021.
A new Chief Justice
In the coming year, at least five judges will retire on superannuation including CJI SA Bobde. If convention holds, then Justice NV Ramana will succeed as the new top judge from April 24 onward. Justices Rohinton Fali Nariman (August 12), Ashok Bhushan (July 4), Navin Sinha (August 18) and Indu Malhotra (March 13) will retire when they turn 65 years of age.
The top court has a sanctioned strength of 34 judges. At the moment, it is already short of four judges for a full strength. The collegium—comprising of the five senior-most judges of the apex court—will have to make recommendations for at least eight new judges (Justice Ramana is likely to fill the post of CJI).
1) Faith versus Constitutional Rights
The ultimate challenge between faith versus constitutional rights, a nine-judge bench will look at a batch of review pleas—65 in all—that challenged its September 28, 2018 verdict that allowed women of all ages to worship in the sanctum sanctorum of celibate deity Lord Ayappa. The case was last heard on March 16, 2020.
However, before the Sabarimala issue is even taken on board, a nine-judge bench will have to determine the interplay between Essential Religious Practices Test against Article 25 (right to practice religion), Article 26 (freedom to manage religious affairs) and provisions such as Article 14 (fundamental right to equality). The decision of this issue will also influence two other cases—plea by two Parsi challenging entry restrictions in the Tower of Silence because they married non-Parsis and a plea seeking entry of Muslim women in mosques.
2) Article 370 'fait accompli', accept change: Centre to SC
More than 16 months ago, the Centre revoked Article 370 which granted special status to the erstwhile state of Jammu Kashmir. The top court on August 28, 2019, issued notice on a batch of pleas challenging the Centre's August 5, 2019, decision.
While arguing against the referral of the issue to a larger bench, the Centre said the abrogation of Article 270 was 'fait accompli' (done deal) leaving no other option but to accept the change. On March 2, 2020, a bench led by Justice NV Ramana declined to refer the pleas to a larger Bench. The matter has not been heard since.
On November 9, Sajad Lone-led Peoples Conference Party filed a plea in the top court seeking an early hearing of the pending petitions. "The petitions ought to be heard and disposed of urgently as significant changes to the rights of the residents of the erstwhile State of Jammu and Kashmir have already been brought about by the Centre...," Lone's plea read.
3) Citizenship Amendment Act, a benign piece of legislation: Centre to SC
Even as state assemblies ruled by the Opposition like Rajasthan, Punjab, West Bengal and Kerala have resolved to not implement the Citizenship Amendment Act (CAA), 2019, the top court will adjudicate on at least 143 petitions—including one filed by the State of Kerala.
The widely contested CAA—makes the citizenship process easier for refugees who are Hindus, Sikhs, Jains, Buddhists, Parsis or Christians (except Muslims) migrating from its three neighbouring countries (Afghanistan, Pakistan and Bangladesh)—was ratified by President Ram Nath Kovind on December 12, 2019.
4) Amendments alter the architecture of Independence: Plea in SC
The Supreme Court has agreed to a plea filed by Congress MP Jairam Ramesh who challenged the constitutional validity of the 2019 amendments made to the Right to Information Act (RTI) giving the Centre authority to decide the tenure, salaries and service terms of the Chief Information Commissioner and Information Commissioner.
5) EWS Reservation brings "Social Equality": Centre to SC
A five-judge Constitution Bench will decide on a batch of pleas that challenge the Constitution (One Hundred and Third) Amendment Act, that introduced 10% reservation for the Economically Weaker Sections (EWS). The Centre defended its new law on the grounds that the amendments brought about "social equality".
6) Personal Guarantors Prashant Ruia, Anil Ambani, Venugopal and Saurabh Dhoot affected
The top court will hear pleas challenging provisions of the Insolvency and Bankruptcy Code (IBC) that allow initiation of insolvency proceedings against personal guarantors.
On November 15, 2019, the Centre published the IBBI (Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Regulations, 2019 with effect from December 1, allowing lenders to simultaneously haul companies and personal guarantors before the National Company Law Tribunal (NCLT). This means, if an individual who has executed a deed as a personal guarantor to avail a loan for a company, the lender can now recover dues from both parties.
The court's decision on this plea might impact the likes of fallen billionaire Anil Ambani, Prashant Ruia of Essar Steel, Amtek Auto's Arvind Dham, Venugopal and Saurabh Dhoot from Videocon Group, Kapil and Dheeraj Wadhwan of DHFL, Moser Baer promoter Deepak Puri and Sanjay Singal, former chairman of Bhushan Power & Steel Limited.
7) Farmers' protest gathers steam, constitutional challenge pending
Even as the protests against the farm acts show no signs of slowing down, the constitutional challenge to the three farm acts remains pending in the top court. At least eight pleas have challenged the Farmers Produce Trade and Commerce (Agriculture and Promotion) Act, 2020; Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020; and the Essential Commodities (Amendment) Act, 2020.
8) Is the Speaker's decision to pass a bill as a Money Bill subject to judicial review?
In November 2019, a five-judge Constitution Bench of the Supreme Court referred to a larger bench the issue on the validity of the Finance Act 2017 being passed as a Money Bill, more specifically the Speaker's decision to certify a bill as a money bill. The larger bench (minimum bench strength of seven judges) will also re-examine its 2018 decision approving the passage of the Aadhar Act by way of the Money Bill.
Justices DY Chandrachud and Ashok Bhushan had penned dissenting opinions in the 2018 KS Puttuswamy verdict on the constitutionality of the Aadhar Act observing that the Speaker's decision to certify a Bill as a Money Bill is not immune from judicial review.
This issue is crucial since it will reopen debates on the constitutionality of the Aadhar Act, rules in the Finance Act 2017 which decide the functioning of the tribunals along with amendments made to Foreign Contribution Regulation Act, 2010, and the Reserve Bank of India Act,1934.
9) Electoral Bonds open floodgates to unlimited corporate donations
The Association of Democratic Reforms (ADR) challenged the constitutional validity of the Electoral Bonds—introduced in the Finance Bill 2017—is a kind of a Promissory Note that donors (individuals and domestic companies) can purchase from the State Bank of India within a specific time frame of 10 days in every quarter of the financial year. These Bonds— issued in multiples of Rs 1,000, Rs 10,000, Rs 1 lakh, Rs 10 lakh, and Rs 1 crore—can be given to their choice of political parties and must be redeemed within 15 days.
While the buyers must submit their full KYC details, the political parties are not required to reveal the identity of their donor.
In October 2020, ahead of the Bihar elections, ADR moved an urgent plea in the top court seeking an expedited hearing. "The scheme has opened the floodgates to unlimited corporate donations to political parties and anonymous financing by Indian as well as foreign companies which can have serious repercussions on the Indian democracy", ADR's plea read.
Judgments to look forward to
In the coming year, the top court will also deliver its verdict on a batch of pleas pertaining to the banks' decision to charge interest on EMIs that remained unpaid by borrowers after they availed the Reserve Bank of India's loan moratorium scheme introduced between March 1 to August 31 in light of the pandemic.
The Supreme Court will also deliver its verdict on the fate of the Central Vista project – the plan to redevelop the Parliament and the surrounding areas. Despite the pendency of the matter in the top court, Prime Minister Narendra Modi laid the foundation stone for the project on December 10.
The top court will also give its judgement in the Tata versus Mistry wherein the December 2019 National Company Law Appellate Tribunal (NCLAT) decision reinstating Shapoorji Pallonji heir Cyrus Mistry to Tata Sons has been challenged.
This copy has been updated.
Updated On: 2021-01-04T15:38:34+05:30