The Supreme Court opens on Wednesday- November 13, with Chief Justice Gogoi set to retire on Sunday.

At the time this article was put together- on Monday afternoon– the SC website did not contain any information regarding any judgment to be passed by the CJI led bench on Wednesday.

SABARIMALA REVIEW PLEA

Last September, the Sabarimala judgment of the five-judge bench- by then CJI DIpak Mishra, Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, had created a storm by allowing women to enter the Ayyappa Shrine at Sabarimala and participate in the 40-day ritual pilgrimage.

The majority judgment had clearly upheld the right of women to worship on equal footing as men and had decried the ‘traditions’ that placed women at a disadvantage. However, Justice Malhotra- the sole woman judge on the bench had given a sharply worded dissenting opinion, where she argued that the judiciary could not “impose its own values” on faith, and must accept beliefs as a matter of faith.

As many as 48 review petitions had been filed against the verdict, with the Supreme Court under CJI Gogoi hearing the matter in open court for an entire day on February 6 this year. The five-judge bench now of CJI Gogoi, Justices Nariman, Khanwilkar, Chandrachud and Malhotra, is set to deliver its judgment before the retirement of CJI Gogoi.

The Ayodhya judgment, with its observations regarding acceptance of faith and belief, has raised expectations that the review plea may be in favour of the Ayappa devotees, who want to continue the ritual ban on participation of women, as the deity Ayappa is considered a “naishtika brahmachari- eternal celibate- who is expected to stay away from women of child bearing age.

In the Ayodhya verdict, the bench had observed: “This court, as a secular institution, set up under a constitutional regime must steer clear from choosing one among many possible interpretations of theological doctrine and must defer to the safer course of accepting the faith and belief of the worshipper.”

RAFALE REVIEW PETITION

The PILs in the Rafale case had accused the PMO of ‘interference’ in the defence procurement mechanism, and had raised concerns of corruption and influence during the defence deal. The PILs had also raised concerns about the pricing of the combat aircraft, and the manner in which the contract had been signed. They had also raised questions regarding the role of the Anil Ambani led Reliance group in the deal.

The original judgment had clearly said that the judiciary would not interfere in the issue and had rejected the allegations of interference in the defence procurement on grounds that the defence deal was being scrutinised at all levels by the government, and the judiciary could not interfere without clear evidence of wrongdoing.

The review petitions had relied on ‘leaked’ documents from the Ministry of Defence, which seemed to indicate that the Prime Minister’s Office had conducted negotiations during the defence deal, without involving the MoD.

The review petitions had alleged that the government had “misled” the Supreme Court regarding the deal, as the judgment had noted that the pricing and other details of the Rafale deal had been considered in detail by the CAG and placed before the Parliament. It was pointed out that the pricing details had not been considered by the CAG, and no report had been placed before the Parliament prior to the passing of the judgment.

The Centre in an application also “clarified” that the Supreme Court had “misread” the submissions given by the MoD, as the government had not, in fact, said that the CAG report had been tabled. The Centre also claimed that the paragraphs regarding tabling of the CAG report were only setting out the ‘due process’ that would eventually be followed on the defence deal.

The Modi government, which has showcased the Rafale deal as a necessary step in the modernisation of the Indian Air Force, had denied any wrongdoing. The Rafale deal had become a huge political controversy, but the procurement of the aircraft has been seen so far as a ‘win’ for the BJP government.

CONTEMPT CASE AGAINST RAHUL GANDHI

Congress leader Rahul Gandhi had courted controversy on the day the Supreme Court agreed to hear the Rafale review plea, as he made a statement in the press that “the court has accepted ki chowkidaar chor hai”.

A contempt case was immediately filed by BJP MP Meenakshi Lekhi, who claimed that Rahul Gandhi was “attributing political statements to the Supreme Court”.

A day after Rahul Gandhi’s statement to the press, CJI Gogoi had given a ‘clarification” from the bench, that the Supreme Court had “never made any such political statement, and it was not for the court to make such a statement.”

The three-judge bench of CJI Gogoi, Justice SK Kaul and Justice KM Joseph had reserved judgment on the contempt case after Rahul Gandhi filed an affidavit providing an apology.

However, the Gandhi scion faced the wrath of the Supreme Court as the first affidavit filed by his legal team did not contain an unconditional apology for attributing a political statement to the court, but an explanation that his words were being misinterpreted.

After the bench indicated its ire, a second affidavit, containing an unconditional apology, and the explanation of his press statement had been filed by Rahul Gandhi.

FINANCE ACT 2017 & THE GOVT TAKEOVER OF TRIBUNALS

The five-judge Constitution bench headed by CJI Gogoi had reserved its judgment in April on a set of 18 petitions alleging that the government had violated legal principles and was taking over the powers to decide terms and conditions of the members of various tribunals, which would dilute the judicial powers of the tribunals.

17 tribunals- including the Green Tribunal, Central Administrative Tribunal, Armed Forces Tribunal and others, had, till 2017, been functioning as independent bodies, with the appointment, tenure and conditions of service being similar to high court judges. By bringing the terms of service under the government, the PILs alleged that the government was trying to “take over” the tribunals, which serve as a necessary check on the executive power.

The Centre justified the Finance Act 2017 as a ‘money bill’, arguing that it had provisions that dealt with salaries and allowance to be paid to members of tribunals from the consolidated funds of India.

With the provisions under challenge, the appointment of chairpersons and members of various tribunals has been stalled for the last two years, prompting the Supreme Court to pass specific orders for appointments to various tribunals- the latest being the delay in appointment of the chairperson to the armed forces tribunal, which was finally formalised last month, even as the functioning of the tribunal was seriously affected.

OFFICE OF CJI UNDER RTI?

While transparency is encouraged in all spheres by the Supreme Court’s judgments, the application of the RTI Act, the court itself has faced allegations of working in an opaque manner.

The Delhi High Court in July 2010 had passed a verdict stating that the CJI Office and the SC were a “public authority” which would come under the ambit of the RTI Act.

The SC Secretary General had challenged the verdict, stating that this would create problems in judicial functioning, if the administrative decisions made by the Supreme Court, including appointments of judges, became open to RTI scrutiny.