i. Plea against arbitrary allocation of work to Supreme Court benches dismissed –Two petitions were filed in the Supreme Court seeking clarity on the administrative powers of the Chief Justice of India as the ‘master of the roster’ and his powers to allocate cases to different benches. One case was filed by a Lucknow-based lawyer, Ashok Pande, sought framing of Rules for constituting Benches and allotting jurisdiction to different Benches in the Supreme Court and the High Courts. It also sought that all benches consist of the senior-most judges, including the Chief Justice of India, and all constitutional benches have 5 senior most judges or three senior judges and 2 junior most judges. Dismissing the petition, the Supreme Court termed the petition as scandalous for making baseless allegations against judges in the Allahabad High Court for passing correct judicial orders. The Courtalso noted that the CJI was the highest constitutional authority in the judicial system and had complete power to allocate the work. The suggestions made in the petition if accepted would intrude into the powers of the CJI and seniority cannot decide which matter should be heard by which judge. [Asok Pande v Supreme Court of India, Writ Petition (Civil) No. 147/2018, date of judgment: 11.04.2018]

The second petition has been filed by Shani Bhushan on the same lines that the authority of the Chief Justice of India as 'master of roster' should not be reduced to an absolute, singular and arbitrary power, but subject to checks and balances.The Supreme Court itself has interpreted the term 'Chief Justice of India' to mean the entire Collegium for the purposes of appointments and transfers of judges.[Shanti Bhushan v Supreme Court Through its Registrar, Dairy Number 12405 of 2018, date of order: 13.04.2018]

i. Right to change religion is a fundamental right–Almost a month after releasing Hadiya from State detention, the Supreme Court gave its detailed decision holding that the High Court transgressed the limits of its jurisdiction. The Apex Court pointed out that freedom to change religion is a part of fundamental right of choice. Curtailment of such choice impinges on the individual’s freedom. One of the judges in a separate opinion also noted that the way Hadiya wanted to live her life would be her choice, whether it pertained to her change of faith or whom she wanted to marry. The judge also reprimanded the High Court for its observations stating that Hadiya was weak and vulnerable and could be easily swayed. [Shafin Jahan v Asokan K.M., Criminal Appeal No. 366 of 2018, date of judgment: 09.04.2018]

ii. Delhi, Haryana Governments asked to file detailed reports on living conditions of Rohingyas – The Supreme Court has asked the governments of the NCT of Delhi and Haryana to file comprehensive reports detailing the conditions of the Rohingyas living in their states within weeks. The advocates on behalf of the petitioners claimed that the condition of the refugees in these camps is dismal, whereas according to the report filed by the ASG, there is no discrimination between the Indians and the refugee slum dwellers. The Union of India argued that they could only provide similar facilities to the refugees but not more than what would be provided to the Indian slum dwellers. Eventually, the court noted that the report filed lacked details as to whether there are schools, water and toilet facilities. Thus the ASG has been asked to file a more detailed report in three weeks. [Jaffar Ullah v UOI, Writ Petition (Civil) No. 859 of 2013, date of order: 09.04.2018]

iii. Centre pulled up for not framing a scheme as per the Cauvery judgment– The Supreme Court reprimanded the Centre for not framing the scheme under Section 6A of the Inter-State River Disputes Act, 1956, in accordance with its judgment passed on 16thFebruary, 2018. The Centre has been asked to file its scheme by May 3. The Court pointed out that the judgment was clear that the Scheme had to be framed within 6 weeks of the judgment and yet the Union has not taken any measure to frame any such scheme. This was a result of a contempt petition filed by the Tamil Nadu and Puducherry. The Centre had also filed an application seeking certain clarifications regarding its powers to make the scheme and seeking an extension of time, in light of the Karnataka elections [State of Karnataka vs. State of Tamil Nadu, Civil Appeal No. 2453/2007, date of order: 09.04.2018]

iv. Petition challenging validity of Sections 5(ii) and 7 of the Hindu Marriage Act refused – In a habeas corpus petition, the Supreme Court refused to hear a petition arguing that Section 5(ii) and (7) of the Hindu Marriage Act, 1955, were in violation of Articles 14 and 21 of the Constitution. Section 5(ii) states that for a marriage to be valid, the parties should be capable of giving a valid consent but then restricts the application to cases where one of the parties is incapable or of unsound mind. Section 12(1)(c) of the Act only makes such marriages as voidable. Section 7 also mandates saptapadi (or other ceremonies, as the case may be) indicating that there was no ritual to show consent is important. But the Court clarified that there was a distinction between marriages where the consent is obtained by fraud and there is no consent at all and thus the distinction was rational. The Court then limited the petition only to habeas corpus issue and declined to entertain any other issue. [X v Union of India, Writ Petition (Civil) No. 327/2018, date of order: 11.04.2018]

v. Centre blames Supreme Court order on the SC/ST Act for discord and disharmony – The Centre has asked the Supreme Court to recall its 20th March 2018 order, which read down the provisions pertaining to automatic arrest under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and provided for anticipatory bail in case of alleged‘frivolous’ complaints under the Act, thereby completely diluting the Act. This judicial overreach resulted in nationwide protests by the Dalit community, including a Bharat Bandh on 2nd April, 2018. The Centre has specifically asked the Court to review the order given that it has caused disharmony, anger and a sense of unease across the country. The submissions also state that the order was in violation of the principles of separation of power and the Court could not have acted in the manner that it did. [Union of India v State of Maharashtra, Review Petition (Criminal) No. 228 of 2018 in Special Leave Petition (Criminal) No. 5661 of 2017, submissions filed by Union of India dated 11.04.2018]

vi. Period of two years between order of guardianship and petition for adoption can be waived off –The Bombay High Court in a significant order has waived off the mandatory waiting period of two years between the order of guardianship and the actual awarding of adoption of the child, which was held in an earlier judgment of the Bombay High Court in Manuel D’Souza. The High Court noted that the parents had shown that they had invested the required Rs. 1 lakh in the name of the child and the parents had received good reports in the adoption home study report. The Court also noted that while Manual D’Souza dealt with a variety of issues that are involved in adoption but this requirement of 2 years seemed unreasonable and unfair especially, in light of the heightened competition for admissions to schools. Thus the Court went ahead and held that the time period could not be treated as inflexible. [Mayur and Devyani v Mitansh Mayur, Indian Adoption Petition No. 32 of 2018, date of order: 11.04.2018]

vii. Copyright on photos uploaded on Facebook recognised – The Delhi High Court has recognised that a person has copyright in the photos that are uploaded on Facebook by the person. Here the defendant, after working for the plaintiff hotel for four years as a manager, opened his own hotel and posted photos of the plaintiff’s hotel as his own hotel. Recognising infringement of copyright by the defendant, he was made liable for a penalty of Rs. 50,000 and was restrained from posting any such photos. [Fairmount Hotels Pvt. Ltd. v Bhupinder Singh, Civil Suit (Commercial) 111/2018, date of judgment: 05.04.2018]

viii. Court would have to act as parens patraie in cases of economic disparity between parties to organ donation – TheDelhi High Court, while hearing an appeal against the order of the Authorisation Committee under the Transplantation of Human Organs and Tissues Act, 1994 denying the request for transplant,noted that the onus to establish that an offer to donate an organ was made on account of affection and attachment to the donee is on the applicant. The Court empathised the need to take into account real-life experiences while deciding whether any money had changed hands. The Court (and the Committee) should not just rely on the facts presented to it in the report by the SSP but act in the capacity of parens patraie to decide the case before it in such situations. [Huma Qamar v Authorisation Committee, Writ Petition (Civil) No. 1405 of 2018, date of order: 06.04.2018]


Other developments –

i. Income Tax Rules amended to include transgender option in PAN Card – The Centre has amended Income Tax Rules, 1962 in order to allow the recognition of transgenders as a separate gender category of applicants for PAN cards. This is in light of the landmark decision of NALSAvs. Union of India (2014), which directed the State to recognise the gender identity of transgender persons and let them avail the facilities meant for socially and economically backward communities. Currently, two petitions are pending in the Supreme Court precisely on this issue. (IPA Service)