NEWS
18/12/2018 8:43 AM IST

Section 377 To Aadhaar: A Look At Supreme Court's Landmark Rulings In 2018

The top court set milestones with its rulings on the entry of women into Sabarimala shrine and Section 377.

B Mathur / Reuters

In 2018, India’s Supreme Court pronounced several important verdicts which had wide-reaching impact. These include recognising equal rights of women and the LGBTQ community and upholding the constitutional validity of Aadhaar

The apex court set milestones with its rulings on the entry of women into the Sabarimala temple and Section 377. They were hailed as “momentous” and a step in the right direction by many. 

The verdict on Aadhaar and adultery are some others which will be counted among the top court’s major judgments. Towards the end of Chief Justice Dipak Misra’s tenure—he retired on 2 October—a number of important cases were decided in a matter of days.

Here are the Supreme Court’s landmark rulings of 2018:

Section 377

On 6 September, a five-judge Constitution bench of the Supreme Court partially struck down the 158-year-old colonial law under Section 377 of the Indian Penal Code, which criminalised consensual unnatural sex, holding it as being violative of the right to equality.

The historic judgement came on a batch of writ petitions filed by dancer Navtej Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur and 20 former and current students of the IITs.

Section 377 referred to ‘unnatural offences’ and said that whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.

The constitution bench, comprising then Chief Justice Dipak Misra and Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, had termed the part of Section 377 which criminalised unnatural sex as irrational, indefensible and manifestly arbitrary. The court, however, said other aspects of Section 377 dealing with unnatural sex with animals and children would remain in force.

Before the verdict, the centre had told the top court it would leave the decision to the wisdom of the judges.

The verdict was welcomed enthusiastically by people belonging to the LGBTQ community and allies. LGBTQ activist Anjali Nazia said after the verdict that the Supreme Court had paved way for bigger judgements ahead. Earlier this month, Mint Lounge spoke to members of the community to find that many had found the courage to speak out more after the verdict.

Aadhaar

On 26 September, a majority verdict by then Chief Justice Misra and Justices AK Sikri and AM Khanwilkar declared the Centre’s flagship Aadhaar scheme constitutionally valid but struck down some of its provisions. The court said Aadhaar would be mandatory for filing tax returns and for access to welfare schemes.

The majority judgement of the court read down Section 57 of the Aadhaar Act of 2016, holding that private companies could not insist on Aadhaar numbers from citizens to provide services. This meant that bank accounts and phone numbers would not need to be linked to it.

In his dissenting judgement, Justice Chandrachud said it was unconstitutional to pass the Aadhaar Act as a money bill, and held that the programme as a whole violated the the privacy of individuals. He said it was unconstitutional for banks and telephone companies to collect Aadhaar numbers and called on phone companies to destroy all existing Aadhaar records in their possession with immediate effect.

While the BJP hailed the verdict as a big victory for the Central government, the Congress welcomed the court’s decision to strike down Section 57.

The verdict was pronounced on a batch of pleas challenging the constitutional validity of Aadhaar scheme and its enabling 2016 law. The bench had on 10 May reserved the verdict on the matter after a marathon hearing that went on for 38 days, spanning four-and-half months.

Sabarimala

A five-judge constitution bench headed by then Chief Justice Misra, in its 4:1 verdict on 28 September, allowed women of all ages to enter the Sabarimala temple in Kerala. The court said that banning the entry of women into the shrine was gender discrimination and that the practice violated rights of Hindu women.

In the sole dissenting judgement, Justice Indu Malhotra said, “Notions of rationality cannot be brought into matters of religion.”

Post the verdict, when the temple opened for monthly and special pujas in October and November, there were massive protests by devotees, following which severe restrictions, including prohibitory orders, were imposed. Over a dozen women made unsuccessful attempts to trek to the temple due to furious protests by devotees and right wing groups.

The Kerala government has said it was constitutionally bound to implement the verdict, while the main opposition in the state, the United Democratic Front, has sided with devotees. The BJP opposes any move to allow women in the 10-50 age group into the temple.

Over 48 petitions have sought review of the verdict. On 13 November, the Supreme Court agreed to hear a batch of review petitions in the matter on 22 January in open court. The top court, however, refused to stay its verdict.

Hindustan Times via Getty Images
A file photo of former CJI Dipak Misra.

Adultery

The Supreme Court declared on 27 September that adultery is not a crime and struck down the Victorian-era law, terming it “unconstitutional”. The court said that the law dented the individuality of women and treated them as “chattel of husbands”.

A five-judge bench, including then Chief Justice Misra, struck down section 497 of the Indian Penal Code dealing with the office of adultery. The bench said that the unequal treatment of women invites the wrath of the Constitution.

The top court, which held adultery as a relic of the past, said the autonomy is intrinsic in dignified human existence and Section 497 denudes women from making choices.

The judgment was hailed by the National Commission for Women, which called it a step towards a “gender inclusive” society, according to The Times of India.

Several lawyers and activists also welcomed the judgement, saying it was an antiquated law that treated women as properties of their husbands.

Delhi Commission for Women (DCW) chairperson Swati Maliwal, however, criticised the ruling and termed it “anti-women”.

She argued that the verdict would affect the sanctity of marriage. 

Living will

The top court in March this year recognised “living will” made by terminally-ill patients for passive euthanasia. A five judge bench headed by then CJI Misra said passive euthanasia and advance living will are “permissible”.

The bench was hearing a PIL by NGO Common Cause, saying safeguards were needed while taking a decision by medical boards to withdraw life support of a terminally-ill patient.

Human rights activists, doctors and health experts hailed the ruling, with the Indian Medical Association saying the judgment was long due and would pave the way in ensuring that everybody is granted the “right to die with dignity”.

Meanwhile, the Catholic Church rejected the Supreme Court’s judgement. According to The Times of India, it issued a statement decrying both active and passive euthanasia.

Live-streaming of court proceedings

The apex court in September agreed to live-streaming and video recording of court proceedings. It said that the necessary rules for balancing rights of public and protecting dignity of litigants will be brought soon.

“Sunlight is the best disinfectant”, the bench said while allowing the live-streaming. It added that the move will effectuate the “public right to know” and bring in more transparency in judicial proceedings.

(With PTI inputs)