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The Leaflet

The year that was—1 | The Leaflet

Year-end Special 2024 Opinion Judicial Accountability Leaflet Specials

The year that was—1

The year 2024 was of a few positives, some negatives and a change of guard at the top of the judiciary.

Indira Jaising

Published on: 27 December 2024, 01:32 pm

The year that was—1

THIS year began on a positive note. A Bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan delivered the judgment setting aside the remission granted by the government of Gujarat to the convicts in the Bilkis Bano case.

The case was of great significance not only for the reason that the eleven men had been convicted of rape and murder in the pogrom of 2002 in Gujarat, and compelled to be sent back to prison to serve sentences but also for the reason that it reversed a judgment of two-judges comprising Justice Ajay Rastogi and Justice Vikram Nath by virtue of which they had been granted remission, under the mistaken impression that it was the state of Gujarat which had the jurisdiction to grant permission rather than the state of Maharashtra.

In Maharashtra, there were guidelines in place indicating that in case of sexual offences, remission ought not to be granted unless the convicts have undergone 28 years in prison. Bypassing this requirement, the convicts had approached the state of Gujarat, which, relying on a guideline of 1992, granted remission after 14 years.

The remission had received condemnation from a wide spectrum of society, given the context in which the rape and murder had occurred. The judgment, which came in January this year, was a breath of fresh air and restored not only the dignity and security of Bilkis Bano but also the legitimacy of the Supreme Court.

Soon thereafter, the Supreme Court delivered its judgment in the electoral bonds case. This was no doubt a history-making judgment.

Soon thereafter, the Supreme Court delivered its judgment in the electoral bonds case. This was no doubt a history-making judgment. Some have argued it was too little too late. A five-judge Bench comprising then Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices (now CJI) Sanjiv Khanna, B.R. Gavai, J.B. Pardiwala and Manoj Misra, directed the disclosure of the names of the persons who had purchased the bonds.

Umar Khalid and others arrested under the UAPA remain in prison despite the above judgments, once again reminding us that it is the luck of the draw, depending on the Bench to which the case is assigned, which determines whether you are in or out of prison.

In another history-making judgment on a petition filed by Sukanya Shantha, a well-known journalist who has been working on issues of caste in prison for some time now, a Bench of then CJI Dr Chandrachud and Justices J.B. Pardiwala and Manoj Misra declared unconstitutional certain provisions of the prison manual and Rules perpetuating caste-based discrimination in jails.

Outdated prison manuals continued to have references to ‘caste-appropriate’ jobs to be done by Untouchables and others by ‘higher’ castes. Caste-based hierarchies not only existed in prison but were perpetuated by the State.

The Bench ordered the Union government and all state governments to revise their prison manuals and Rules to remove caste-based terms and concepts such as “habitual offenders”, “prison-cooks of suitable caste”, “superior mode of living” and “communities accustomed to performing menial tasks”.

It was held that these practices were discriminatory in nature and violated Articles 14, 15, 21 and 23 of the Indian Constitution. This is a prime example of public interest litigation (PIL) which at its inception was defined as being for and on behalf of those who cannot approach courts on their own behalf.

It is worth noting that even before the birth of this particular PIL, it was prisoners who filed petitions on behalf of other prisoners to end torture in prison— Sunil Batra being one such litigation— that led to prison reforms and accountability of prison superintendents.

It remains to be seen whether caste and its discrimination will end in prison as a result of this judgment but, hopefully, the court will continue to monitor the case to ensure compliance at the prison level.

The politics of sub-classification of Scheduled Castes and Scheduled Tribes

In August, a seven-judge Bench comprising then CJI Chandrachud and Justices B.R. Gavai, Vikram Nath, Manoj Misra, Bela M. Trivedi, Satish Chandra Sharma and Pankaj Mithal overruled a five-judge Bench decision in E.V. Chinnaiah versus State of Andhra Pradesh, thus allowing sub-categorisation of Scheduled Castes and Scheduled Tribes.

Justice Bela M. Trivedi wrote a dissenting opinion, holding that E.V. Chinnaiah was rightly decided and that the Constitution of India did not permit sub-categorisation of the homogeneous category of Scheduled Castes and Scheduled Tribes.

Political scientists have opined that this judgment will have grave political consequences, fragmenting a homogeneous class and making it possible to create sub-identities that can benefit ruling parties.

Some have expressed the view that the success of the alliance government in Maharashtra can be partly attributed to the sub-categorisation of the Scheduled Caste and Scheduled Tribe communities, making it possible for the Bharatiya Janata Party (BJP) and its allies to lobby at the micro-level for votes.

The Bench also held that bail cannot be denied only on the ground that the charges are very serious though there is no end in sight for the trial to conclude.