Constitution Day: What Nine Pending Cases Say About the Rights India’s Citizens Enjoy

Women protesters at Jamia Millia Islamia during the anti-CAA and NRC protests. Photo: Ismat Ara/Files

By Jahnavi Sen

New Delhi: Seventy-two years ago on this day, the Constituent Assembly adopted the Constitution of India. Two months after that, on January 26, 1950, the country’s Constitution came into effect. But how has the implementation of our constitutional rights and safeguards been going?

In high courts across the country and in the Supreme Court, a number of cases are pending relating to basic rights India’s citizens are supposed to enjoy. Here is a list of some of those cases, pertaining to laws passed and decisions taken by the government that are seen to be in violation of the constitutional guarantee of fundamental rights to citizens.

1. Article 370

On August 5, 2019, the Narendra Modi government decided to unilaterally read down Articles 370 and 35A of the Constitution, which provided the erstwhile state of Jammu and Kashmir a certain amount of autonomy. At the same time, the Union government also passed the Jammu and Kashmir Reorganisation Act, which divided the then state into two union territories.

Several writ petitions – about two dozen – have been filed against this move in the Supreme Court, saying that the Modi government’s decision violates fundamental rights of the people of Jammu and Kashmir. The most recent petition was filed by CPI(M) leader M.Y. Tarigami, also asking the court to expedite hearings in the case.

Most of these petitions were filed very soon after the Union government announced its move, but it has now been nearly nine months since the case was listed.

On August 28, 2019, the top court had said that its five-judge Constitution bench will be examining a batch of pleas challenging the Centre’s decision to change the constitutional status of Jammu and Kashmir. The matter was last listed before a Constitution Bench led by former Chief Justice S.A. Bobde on March 2, 2020.

2. Citizenship (Amendment) Act

On December 11, 2019, parliament passed the controversial Citizenship (Amendment) Act despite large-scale protests against it across the country. This law was criticised because it made religion the basis for granting citizenship for the first time in independent India.

According to the CAA, undocumented immigrants from Afghanistan, Bangladesh or Pakistan who entered India before December 31, 2014 will be granted Indian citizenship. The catch? These immigrants have to be either Hindu, Sikh, Parsi, Buddhist or Christian. Coupled with the Union government’s plan to implement a nationwide National Register of Citizens, many believed that the law would be used to further target Muslims in India.

In addition to citizens’ protests, the CAA was challenged legally almost immediately after it was passed. The first challenge came from the Indian Union Muslim League (IUML), and there are now 143 petitions questioning the Act’s constitutionality before the Supreme Court. The petitions, and critics of the law more widely, have argued that the CAA goes against India’s secular nature, which is enshrined in the Constitution, and Article 14 (equality before law). Even Michelle Bachelet, the United Nations high commissioner for human rights, has filed an intervening application against the law before the Supreme Court.

The petitions, however, have received little attention from the Supreme Court so far. The apex court refused to stay the law and gave the Union government four weeks to respond in January 2020, though the Centre’s first response came only 2.5 months later. In that entire year, the case was heard only on three dates. In 2021, it has not been heard even once.

The rules under the Act are yet to be finalised by the Union government.

3. Electoral bonds

A constitutional challenge to the Union government’s electoral bonds scheme was first mounted in 2017, soon after the passage of the Finance Act, 2017. Petitions were filed by the Communist Party of India (Marxist), and NGOs Common Cause and Association for Democratic Reforms, which challenged the scheme as “an obscure funding system which is unchecked by any authority”. Questions have also been asked about this Act being passed as a money Bill, thus circumventing the Rajya Sabha.

The electoral bonds scheme allows political parties to receive completely anonymous donations in the run-up to elections. Even though the challenges were filed in 2017, the court started actively hearing the case only in 2019 – by which time the sale of electoral bonds had already begun. The court has refused to stay the scheme or the sale of electoral bonds on several occasions now, most recently in March this year.

Multiple reports have shown that the Narendra Modi government pushed through the electoral bonds scheme despite serious doubts and disagreements from the Reserve Bank of India and Election Commission. RTI queries also revealed that the government did not follow its own rules and regulations while implementing the scheme.

On April 12, 2019, a Supreme Court bench headed by then CJI Ranjan Gogoi asked the Union government to submit details of donations under electoral bonds in a sealed cover. However, the bench did not list the matter again after that. More recently, when Gogoi was asked about the case after his retirement, he said he “did not remember” it.

4. Unlawful Activities (Prevention) Act

Multiple petitions before the Supreme Court have challenged the Unlawful Activities (Prevention) Act or UAPA, an ‘anti-terror’ law that has been widely criticised for its vague terms and misuse. Most recently, a group of former civil servants filed a petition against the law, and the court has issued notice to the Union government. Two writ petitions had also been filed on the matter in 2019, soon after the Modi government amended the law and made it even more stringent. The amendment allows the state to designate an individual, and not just an organisation, as a terrorist.

Provisions under the UAPA make it extremely difficult for an accused to get bail, even as trials may continue for years on end. This ensures prolonged incarceration even before a case is decided, the petitions against the law point out.

Petitioners argue that the law violates the right to equality under Article 14, right to freedom of speech under Article 19(1)(a) and right to life with dignity under Article 21 of the Constitution. They have also pointed out the low conviction rate under the UAPA – only 2.19%. This shows that “prosecution under the UAPA is either initiated in “bad faith”, or the quality of the evidence is not sufficient, bringing into question the entire process of “independent review” prior to grant of sanction”, according to the recent civil servants’ petition.

Representational image.

5. Farm laws

Even before Prime Minister Narendra Modi announced that his government intends to repeal the three contentious farm laws passed last year, multiple cases challenging the Farmers (Empowerment & Protection) Agreement of Price Assurance & Farm Services Act, 2020, Farmers Produce Trade & Commerce (Promotion & Facilitation) Act, 2020 and Essential Commodities (Amendment) Act, 2020 had been filed in the Supreme Court. In January this year, the court had stayed the laws less than two months after they were passed.

Farmers have been protesting against these three laws as well as other government policies for more than a year now, saying that they benefit large corporate houses and not farmers.

The court had also set up a committee to try and mediate talks between the government and the farmers, but many had criticised this committee as the members were seen to be supporters of the farm laws.

Petitions against the farm laws said they were arbitrary and violative of Article 14.

6. Information Technology Rules

In multiple high courts across the country, cases have been filed against the Union government’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These Rules, framed under the Information Technology Act, 2000, seek to regulate media portals, over the top (OTT) streaming platforms and social media intermediaries. They grant sweeping powers to the Centre, including the right to demand removal of content. The rules have come under criticism from news portalsjournalists bodies and internet freedom advocates.

The first legal challenge to the IT Rules came from The Wire, its founding editor M.K. Venu and The News Minute editor Dhanya Rajendran, filed in the Delhi high court. The petition has argued that the Rules are violative of the parent IT Act they were framed under. Since then, multiple media houses – including LiveLawMalayala ManoramaThe Quint, PTI and others – have filed cases in high courts across the country. The petitions have argued that the Rules violate the IT Act as well as Articles 14 (equality before law) and 19(1)(g) (right to freedom to practise any profession, or to carry on any occupation, trade or business) of the Constitution.

In addition to media houses, the IT Rules have also been challenged by Facebook-owned WhatsApp, saying that the traceability provision is unconstitutional and against the fundamental right to privacy.

7. Pegasus

In July this year, The Wire and its global media partners in the Pegasus Project reported about how the smart phones of over a dozen people were found infected or targeted by spyware created and sold by an Israeli company, the NSO Group. These individuals were part of a larger group of persons whose numbers figured in a leaked database of probable Pegasus targets around the world.

The NSO Group has maintained that its sells the Pegasus spyware only to “vetted governments”.

A section of journalists, lawyers, activists and politicians – including five confirmed targets on whom the Pegasus software was used – moved Supreme Court with nine petitions in total, asking for a judicial probe into the matter.

On October 27, the bench Chief Justice of India N.V. Ramana and Justices Surya Kant and Hima Kohli said that since there was “no specific denial” from the Indian government on buying and using the spyware, it was setting up an independent expert committee to investigate. If the allegations prove true, the court noted, they have a bearing on citizens’ constitutionally-guaranteed rights to privacy and freedom of speech.

The bench has given the committee eight weeks from the date of hearing to submit its report – meaning the committee is currently halfway through its tenure.

8. Sedition

The Supreme Court is hearing a batch of petitions challenging the country’s sedition law (Section 124A of the Indian Penal Code), which was put in place by the colonial British government. Seven such petitions have been filed before the apex court, including by journalists Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla and former Union minister Arun Shourie.

The sedition law, the petitioners have argued, is unconstitutional. The term is vague and it fails to define criminal offence with sufficient definiteness, they continue. In addition, Section 124A infringes upon the fundamental right of freedom of speech and expression, guaranteed under Article 19(1)(a) of the Constitution.

In July this year, the court questioned the Union government on why this law was still required. “This dispute about law is concerned, its colonial law, it was meant to suppress the freedom movement, the same law was used by British to silence Mahatma Gandhi, Tilak etc. Still is it necessary after 75 years of Independence?” CJI N.V. Ramana said then.

According to Article14there has been a 28% rise in sedition cases between 2014 and 2020, in violation of Supreme Court guidelines, during Prime Minister Narendra Modi’s regime, compared to the yearly average between 2010 and 2014, the second term of the United Progressive Alliance administration.

9. EWS quota

In January 2018, the Union government passed the 103rd Constitutional Amendment Act to provide reservation of 10% of seats in educational institutions or posts in State services, purportedly for “economically weaker sections of citizens”. Around 20 petitions have been filed in the Supreme Court against this Act, saying backwardness for the purpose of reservation cannot be defined by “economic status alone”. The amendment, petitioners argued, challenged the basic structure of the Constitution.

In August 2020, the court decided to refer the matter to a five-judge Constitution bench.The bench was of the view that the petitions raised a substantial question of law as to whether reservation could be granted on an economic criterion alone. The law has not been stayed in the meanwhile.

While the hearing before a Constitution bench has not yet begun, the apex court has been hearing other cases related to the EWS quota. Most recently, it questioned the Union government on why it adopted annual income of Rs 8 lakh as the criteria for determining eligibility for the EWS reservation in admission for medical courses. The Centre has now said it will revisit this limit, which means the counselling for aspirants will be delayed further.

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