National

A fulfilling year for the Supreme Court

New Delhi: The year 2008 was a memorable and fulfilling year for both the Supreme Court and Chief Justice of India K.G. Balakrishnan. It passed orders on issues of social justice, politics, criminal justice, family law, etc.

Justice Balakrishnan acted firmly to weed out corrupt elements in the judiciary, recommending to Prime Minister Manmohan Singh impeachment proceedings against a sitting judge of the Calcutta High Court, Soumitra Sen, for certain acts of impropriety and misappropriation of funds. The matter is pending with the Centre.

In the Ghaziabad Provident Fund scam, allegedly involving several judges including sitting judges of the Allahabad High Court, the apex court referred the case to the Central Bureau of Investigation. It also allowed interrogation of judicial officers by the CBI.

In a significant decision, the court upheld the law enacted by the Centre in 2006, providing a quota of 27 per cent for the Other Backward Classes in admissions to higher education institutions. But it directed the government to exclude the creamy layer among the OBCs while implementing the law.

The court held valid the 93rd Amendment that inserted Article 15(5) in the Constitution, enabling the Centre and the States to enact quota laws. It observed: “Reservation is one of the many tools that are used to preserve and promote the essence of equality, so that disadvantaged groups can be brought to the forefront of civil life. It is also the duty of the state to promote positive measures to remove barriers of inequality and enable diverse communities to enjoy the freedoms and share the benefits guaranteed by the Constitution.”

Another important matter before the court pending judgment is the Sethusamudram case. The Centre submitted that “Ramar Sethu [Adam’s Bridge] is not an integral part of Hindu religion to attract Articles 25 and 26 [right to freedom of religion].” The Centre also said since Lord Rama himself destroyed the Sethu bridge after the war against Ravana, there was no justification to demand that this broken structure be protected. Subsequently, the Centre yielded to pressure from various quarters and constituted an expert committee to consider an alternative alignment for the Sethusamudram Shipping Channel Project without damaging Ramar Sethu.

In the area of family law, the Supreme Court held that a Hindu married woman “cannot adopt at all [a child] during the subsistence of the marriage except when the husband has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. If the husband is not under such disqualification, the wife cannot adopt even with the consent of the husband.”

In another significant ruling, the court held that marriage between a Hindu girl and a Christian boy solemnised under Hindu law is invalid and cannot be registered under it.

The court clarified that its directive on compulsory registration of marriages would apply to all religious communities and rules have to be framed by the Centre and States accordingly. It has granted time for the States to enact laws and frame rules in accordance with this judgment.

On the powers of High Courts in writ petitions, the apex court said: “The High Court in exercise of the certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in a re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of a mere formal or technical character.”

On the medical front, the apex court examined the question whether a patient’s informed consent is necessary for surgical procedure. It held, “A doctor has to seek and secure the consent of the patient before commencing ‘treatment’ [including surgery]. The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to.”

The apex court deprecated the practice of courts pronouncing final orders without giving reasons: “When the matter is decided by a court, reasons must be recorded in support of such a decision.”

Concerned at the increasing number of dowry cases registered on flimsy grounds, the court held that customary payments, for example, given at the time of birth of a child or other ceremonies as are prevalent in different societies, are not covered by the expression ‘dowry’.

While recommending exemplary punishment for rape, the court said: “The measure of punishment cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with.”

On public interest litigation, the court said: “There is a heavy duty cast upon the constitutional courts to protect themselves from the onslaught unleashed by unscrupulous litigants masquerading as Public Interest Litigants.”

While dealing with the Hanafi law, the court said that as far as Muslims in India were concerned, “an irregular marriage continues to subsist till terminated in accordance with law and the wife and the children of such marriage would be entitled to maintenance under Section 125 Cr.PC.” It held that “the bar of unlawful conjunction [jama bain-al-mahramain] renders a marriage irregular and not void.”

On right to an author’s freedom of speech and expression, the court held that an intention to cause disorder or incite the people to violence under IPC Sections 153 and 153 A had to be judged primarily by the language of the book concerned and the circumstances in which it was written and published. “One cannot rely on strongly worded and isolated passages for proving the charge.”

On States acquiring land for special economic zones or for other public purposes, the court held that establishing and developing infrastructure could not be held contrary to law or objectionable. It was primarily for the State to decide whether or not there existed a public purpose, and its decision was beyond judicial scrutiny.

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