Deep inside the great white domed building standing tall above the treelines of Tilak Marg, linking the neat boulevards of Lutyens’ Delhi with the scurrying anthills of the National Capital Region, is an oasis of silence. Here, in the hush of a thickly-carpeted corridor, whose walls are lined with the photographs of judges past, sit the 25 fountainheads of justice. Drawn from different corners of the country, they — 24 men and one woman — constitute the country’s most powerful court. But 2017 has been daunting — as also remarkable — for the Supreme Court (SC) of India.

For one, the apex court struggled for answers as more and more women came to it in search of dignity, equality and the right to reproductive choice. From declaring un-Islamic the 1,400-year-old practice of instant triple talaq (marriage annulment) and upholding privacy as a fundamental right, to challenging the logic behind banning women of a certain age from entering Sabarimala temple, to playing the indulgent uncle to an adult Hadiya, and condemning to death the four rapists in the Nirbhaya case, the SC has shown nerve even as it searched for sure footing.

The Court swayed to populism in 2016 when it forced citizens to stand up in cinema halls for the national anthem, only to retract this year to say one does not have to wear patriotism on one’s sleeve. It floundered by first prohibiting the sale of liquor along highways and later modifying the order; contradicted itself by first banning immediate arrests in dowry harassment cases and later saying the order diluted the right of women to seek justice; overplayed its authority by compelling a woman to not leave her estranged husband without the Court’s permission; and drew flak for banning firecrackers during Diwali.

Yet, the past 12 months also saw the Court bat for human rights by declaring that sexual intercourse with a minor wife is rape, freezing a government move to deport over 40,000 Rohingya refugees, giving convict Perarivalan a second chance to present his case in the Rajiv Gandhi assassination probe, and coming down on corruption and crime in public life. It sent to prison those convicted in the Jayalalithaa wealth case and directed the setting up of 12 special courts to exclusively prosecute politicians. Bharatiya Janata Party (BJP) veterans accused in the Babri Masjid demolition suddenly found themselves back in the dock. The Court did not shy away from opening politically explosive issues like the Ayodhya Ram temple title suits, the use of pellets on agitators in the Valley and the ‘special status’ of Jammu and Kashmir.

The year presented a unique moment in history when the Court’s seven seniormost judges held a sitting High Court judge, Justice CS Karnan, guilty of contempt for making a “laughing stock” of the judiciary. The Court even gagged the media from publishing what Karnan had to say about his fate. Though it took the police a while to track down the judge and put him behind bars, the law is yet to nab the flamboyant businessman Vijay Mallya, who fled abroad. Having held Mallya guilty of contempt of court, the SC has no choice but to wait till the law enforcement agencies bring him before it to decide his punishment. The Court let off the former president of the Board of Control for Cricket in India and BJP leader Anurag Thakur in a contempt case after he tendered an unconditional apology.

Women make their case

November 27 presented an unforgettable instance when Justice DY Chandrachud asked Hadiya, the homeopathy student from Kerala who converted to Islam and married a Muslim man, her dream about the future. “Freedom!” she cried out to the stunned Bench.

It was evident she did not want an iota of paternalism from the all-male Bench. In fact, her stinging response was an awakener for the apex court, which has a dismal record of women’s representation within its ranks. Justice R Banumathi, the sole woman judge and only the sixth in the apex court’s 68-year history, was missed that day as the Bench nudged Hadiya to return to college. Instead of allowing her to exercise her choice, the Court meandered with questions about her “hobbies” and whether there was wifi in the rented house she shared with her college friends.

The Hadiya episode was in stark contrast to the decisive victory won by Muslim women when the SC decided to protect their dignity against instant triple talaq.

The talaq verdict has enthused the likes of 33-year-old Naomi Sam Irani of Panchgani to approach the Court against the pre-Independence Parsi Marriage and Divorce Act of 1936, which mandates “local Parsi people” to act as jury in Parsi matrimonial courts to decide if a couple should be granted divorce or not. This, when jury trials have been outlawed in the country. A Constitution Bench is hearing another Parsi woman, Goolrokh M Gupta, on the right of women who marry outside the Parsi community to retain their religious identity. Gupta was denied entry into the Tower of Silence to mourn and pray for her dead parent.

“How can you (Parsi elders) distinguish between a man and woman singularly by a biological phenomenon… If a woman says she has not changed her religion, by what philosophy do you say that she cannot go to the Tower of Silence? No law debars a woman from retaining her religious identity,” Chief Justice Dipak Misra said. The local Parsi Trust finally relented under the SC’s pressure.

However, the initiative the Court showed in the triple talaq judgement was sorely missing when women and children approached it, time and again this year, for upholding their right to reproductive choice. The Court watched on helplessly, tied down by a five-decade-old law, as a 10-year-old rape survivor from Chandigarh gave birth after medical experts deemed it was too dangerous to abort the foetus. The hospital release had read, “both children are stable”. The Court refused a woman permission to abort her 26-week-old foetus detected with Down’s Syndrome. It also declined a mother’s plea to expand the definition of the term ‘child’ in the Protection of Children from Sexual Offences (POCSO) Act to include adults who were “mentally-retarded or extremely intellectually-challenged”. She wanted her daughter, a rape survivor whose biological age was 38 though medical reports conclude her “mental age” to be that of a six-year-old, to get timely justice.

Nevertheless, the Court agreed to examine whether the dusty Victorian provision of adultery in the Indian Penal Code (IPC) commodified women. It upheld the right of a woman to get maintenance from her estranged husband, who denied her financial support on the ground that she is educated and employable. The Court backed the cause of single parents by asking the government to make provisions for them in the draft Surrogacy (Regulation) Bill 2016, which allows only infertile and legally-wedded Indian couples to have children through surrogacy. It held that a tenant cannot refuse to vacate because his landlady is married and has her husband’s home to live in. It lashed out at eve-teasing, holding that “male chauvinism has no room in a civilised society”, returned an eight-year-old to her mother’s custody, and locked horns with Air India after it grounded the dreams of Shanavi Ponnusamy, a transgender from Thoothukudi in Tamil Nadu, to work as its cabin crew.

Siding with privacy

Though criticised for judicial activism, the Court this year was seen to stand by individual rights against State action. The majority judgment of Justice Chandrachud on privacy would find an echo in the future and empower civil rights activists in the long fight against the draconian Section 377 of the IPC, which criminalises homosexuality. The judgment has stated that the penal provision “poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity”. The judiciary was instrumental in extending the deadline to March 31, 2018 for linking Aadhaar to bank accounts, mobile phone connections and 139 government welfare services and subsidies. It has repeatedly urged the government to consider the genuine cases of persons left stranded by the effects of demonetisation. It has compelled the government to form special police squads to arrest and prosecute vigilantes unleashing violence in the name of cow protection. Those suffering ill-health from endosulfan pesticide use got relief when the Court ordered immediate disbursement of compensation. Victims of the 1984 anti-Sikh riots now look to the SC for a sense of finality after the judges decided to review the closure of 241 cases by a Special Investigation Team. The Court declared the online game Blue Whale a threat to life.

In an important ruling on electoral law, a Constitution Bench termed religion a very private relationship between man and his god and held that an appeal for votes on the basis of religion, caste, race, community or language would amount to a ‘corrupt practice’ and result in the disqualification of the candidate found guilty.

But the Court continued to be foxed by bulls and stray dogs. After pronouncing jallikattu as cruelty in 2014, it is now wondering whether Tamil Nadu could claim constitutional protection for the bull-taming sport. The Kerala government recently proposed opening stray dog “zoos” in the State.

The Court was in no two minds, however, when it refused to order the UK to return the Kohinoor diamond or lay down moral guidelines on how people should react to jokes. In a similar vein, it left to the Censor Board the decision over the release of the controversial movie Padmavati.

Despite the many grave matters at hand, the learned judges managed to sneak in several light moments too. Justice AK Sikri quietly disclosed in court that he too is bombarded by calls and messages to link his Aadhaar, when he was hearing the Aadhaar-mobile linking case. There was time to turn “playful” too — Chief Justice Misra solemnly pronounced cricket as a game of “glorious uncertainties” and football as a game of “glorious capabilities”, leaving no one in doubt whether the scales of justice were balanced in a matter so crucial to a cricket-crazed nation.

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