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An estimated 29-minute read
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In a nutshell: Nearly five years ago, a petition was filed in the Supreme Court. It questioned the constitutionality and legality of the Aaadhaar scheme of the Central Government. Today, that case is still undecided. Two weeks ago, a 9 judge bench of the Supreme Court heard argument and reserved judgment on a preliminary aspect of this case. Even if all of these 9 judges agree with the petitioners who have questioned the Aaadhaar scheme, there would have been no progress in the hearing of this languishing case – a new hearing will be held by a smaller bench afterwards. India has firmly spent the past four decades with privacy as her fundamental right. In this background, a declaration by this bench that privacy is a fundamental right under our Constitution is as grand a declaration today that India became free on 15, August,1947 or that our Constitution was enforced from 26, January,1950. Similarly, if all of these 9 judges decide against that preliminary aspect and hold that privacy is not a fundamental right under our Constitution, a new hearing will still be necessary by a smaller bench. In fact, our later bench may choose to even ignore such a law laid down by this larger 9 judge bench and proceed independently. This larger bench is examining whether there exists a fundamental right to privacy and is doing so in a very abstract setting; a setting that is so abstract that there is simply no threat to anybody’s privacy before it and therefore, no context for it to judicially weigh the personal protection or deprivation that is at stake by whatever it decides. In effect, the Supreme Court has wasted too much time in the past five years in this case of extraordinary national and international significance. This development points to deeply falling standards at the Supreme Court. One could wonder if the Supreme Court has turned timid recently and one would have wondered rightly.

Privacy: What is the definition of ‘privacy’? We readily understand what it means though we cannot define it with precision. Of course, it generally means the ‘right to be left alone’. In fact, it means different things in different contexts.

Push out your semen, now: Imagine that you are a male and a girl has alleged that you raped her. The police have arrested you. And, the police direct you to masturbate so that they can collect your semen for a medical testing. If you refuse to masturbate on your own, they will threaten to masturbate you forcibly and to collect your semen. They are empowered by Section 53-A of the Criminal Procedure Code, 1973 to do so. Do you feel violated? Welcome to India. Haven’t you read this one? http://www.legallyindia.com/views/entry/do-you-have-a-constitutional-right-to-not-be-masturbated-by-the-police

Does not the above provision of law scare you? No? If so, let me give you an imaginary scenario, then.

Census Officer to you: What’s the size of your private organs? You are familiar with the Census taking operations. Imagine that the Parliament of India has just passed a law making it compulsory for every adult citizen to also provide Census officers with the information about the size and detail of their sexual organs. Are you outraged? Hold on. Don’t you know that India already has a law that makes it a crime for consenting adults of the same sex to have sex with each other in the privacy of their bedroom? (Section 377 of the Indian Penal Code, 1860 – punishment of 10 years in jail). Under the Criminal Procedure Code, 1973, a police officer of a certain rank has the power to prevent the commission of a crime. If he suspects that homosexual activity is happening in your bedroom, he could raid your house and break open your bedroom to prevent an illegal activity - homosexuality.

Let’s come back to our imaginary Census law wherein every adult citizen is forced to provide information about the size and detail of his or her sexual organs to the Government. How will you challenge the legality of this law in our Constitutional Courts – Supreme Court and the High Courts? Let me lay out the framework here.

India has a written Constitution: In fact, we have the most voluminous Constitution in the world – then and today. Under it, the Parliament and the State Legislatures do not have unlimited powers over their people. The Constitution assures certain rights to its citizens (and to non-citizens also, in some cases). These rights are called as ‘fundamental rights’. And, the Constitution says that any law that violates these fundamental rights is liable to be struck down by the Constitutional Courts. These fundamental rights are stated in Articles 14 to 32 of the Constitution. Each Article speaks of one subject. For instance, Article 14 speaks of equality between persons in the eyes of law. Article 19 speaks of freedom of speech of citizens and their right to carry on any business or activity and the like. And, in most of these articles, after a right has been stated, the limitations that can be imposed by a law on those rights are also expressly specified. So, when any law is questioned by a citizen or an affected person in a constitutional court on the ground that his fundamental right has been violated, the Court will find out if the law breaches the limitations imposed by the Constitution itself against that right. However, no fundamental right expressly speaks of a right to privacy. Scary?

How to read our fundamental rights? Our Constitution was put into effect on 26-Jan-1950. Within two months after that, the Supreme Court of India was faced with a petitioner who had been detained by the Madras Government under its preventive detention law. He had urged the Supreme Court to read the various fundamental rights together to strike down that preventive detention law. However, the Government had urged that each fundamental right was separate and only dealt with a separate subject matter and reading them together was not proper. The petitioner had urged that the injustice done to him by the State can only be seen by the Court if it reads different fundamental rights together. He had said that when a fundamental right is read in isolation, it does not protect citizens adequately and several draconian laws would otherwise sail through in Constitutional Courts. The Government won, and the petitioner lost that day. In a short period of two and a half months, a 6 Judge Bench of the Supreme Court delivered a landmark verdict in this case known as A.K.Gopalan v. State of Madras [1950 SCR 88]. It held that each fundamental right dealt with a separate subject matter and should be read separately and independent of other fundamental rights. This rule held the field for the next 19 years.

Smt.Indira Gandhi, the former Prime Minister of India should be thanked for forcing the Supreme Court in the coming decades to revise the AK Gopalan pattern of judicial thought completely. 19 years later - on July 19, 1969 - an Ordinance was issued by the Central Government to privatize several banks and to nationalize the banking sector. Within seven months, an 11 Judge Bench of the Supreme Court held that its decision in AK Gopalan will no longer apply and it will read the various fundamental rights together. The owners of the private banks did not get any relief, however, at the Supreme Court. The Supreme Court had examined their grievance by reading different fundamental rights together. After such a combined reading, it had held that the nationalisation of the private banks had not violated the fundamental rights of the affected. This case is known as R.C.Cooper v. Union of India [(1970) 1 SCC 248]. Remember, this was in 1970.

Are you paying attention? Now, if you were reading carefully, you should be asking – “if privacy is not expressed as a fundamental right anywhere in Articles 14 to 32, how does it matter if fundamental rights are read individually or together? Whether each fundamental right is read separately or together, what is not present at all in any single fundamental right cannot take birth when different fundamental rights are read together. In both cases, the citizens should be doomed under our imaginary Census law?”

In fact, you have just raised a precious question under our Constitution. The answer is quite simple, however. When the Supreme Court started to read different fundamental rights together two decades later, the constitutional law changed dramatically. Some fundamental rights began to receive a much expanded meaning. After all, one does not mathematically add up these fundamental rights; when one reads these rights together, each right begins to appear differently than when it was read in isolation. Rights that were not quite visible earlier began to emerge. And, for the past 40 years, we have been living in an era where our constitutional courts have discovered newer fundamental rights that were rarely recognised in the first 27 years of our Constitution’s functioning.

Article 21: Article 21 of the Constitution says ‘no person shall be deprived of his life or personal liberty except according to procedure established by the law’. In the years after the RC Cooper judgment, this Article 21 has acquired a much expanded meaning, and both the Supreme Court and all the High Courts have evolved newer rights and have elevated such rights to the status of a fundamental right. That is, several human rights that didn’t seem to fall anywhere between Articles 14 to 32 emerged progressively in the judgments of the Supreme Court and the High Courts after 1970. Thereby, several laws that had violated such an expanded fundamental right came to be struck down by the Courts in many cases. Interestingly, privacy was firmly treated as a fundamental right and is being read as part of Article 21 since then.

In this background, let us see what the Courts had specifically said about privacy being a fundamental right – from inception. And, how did they protect violations of such a right to privacy?

In 1954: the police agencies had raided the premises of a few companies. The officers of these enterprises had approached the Supreme Court and made several arguments. Article 20(3) of the Constitution guarantees that an accused should not be forced to speak against himself in Court. That is, if a person has committed any crime, the police cannot force such a person to confess to such a crime and provide such a forced confession as evidence of his guilt to a Court of law. Of course, an individual may voluntarily confess to a crime in return for the expectation of lesser punishment; but no accused can be convicted by any Court of law on a confession forced by the police. The officers of the raided company had argued that when documents that show their wrongdoing are searched and forcibly taken away from their premises, there is a violation of Article 20(3); as, though they are not personally forced to confess to their crimes, the evidence of their crimes is forcibly obtained from their premises in document form. An 8-Judge Bench of the Supreme Court rejected their argument and dismissed their petitions. In their judgment, they said a line about the right to privacy. This is M.P.Sharma v. Satish Chandra [1954 SCR 1077]. Two weeks ago, a 9 judge bench of the Supreme Court concluded its hearing on just one aspect of the Aaadhaar case. The Central Government had wanted a hearing by this 9 judge bench because of that one particular line in this 1954 judgment.

In our country, we today have the Criminal Procedure Code of 1973. Before that, we had the Code of 1898, and before that, we had the code of 1861 and a code before that. Under the current and a few of the earlier codes, when a police officer receives information that a crime (described as cognizable in the statute) has been committed, he can proceed to the place of the crime, make arrests, seize incriminating documents, collect evidence and do a number of similar things to bring the guilty to book. However, there are several countries where such powers are not readily granted to the police. During the drafting of our Constitution, there was a discussion among our lawmakers whether such powers of the police should be curtailed and instead of making the police decide on their own, whether they should be required to obtain a warrant after satisfying a Magistrate about the need to step into any person’s private premises. This curtailment of the police’s power was described by some of our lawmakers then as necessary to protect the citizen’s ‘right to privacy’. Eventually, it was decided that there was no need to curtail such power of the police as such a police power had served the country well for nearly a century. So, the proposed amendment was dropped from the final Constitution. Based on this background, the petitioners had argued in the 1954 case that a police search of their premises was a violation of their ‘fundamental right to privacy’. Of course, the founding fathers themselves had rejected such a ‘right of privacy’ to persons accused of crimes. So, the Supreme Court in 1954 readily declared in one line that such a right to privacy is not a fundamental right. That was the correct thing to say for that case. And, even if a general right of privacy were declared to be a fundamental right in that case, the outcome would have still been the same then – dismissal of the case.

In 1962: a 6 judge bench of the Supreme Court said the same thing in a few lines about such a ‘right of privacy’ not being a fundamental right. This was a case brought by a person under police surveillance. He had complained that he had been charged with certain crimes but was eventually acquitted by the Courts. However, after that, the police had started tracking his movements secretly. The Supreme Court held that if the police were tracking this person's movements in such a way that one cannot even know that the police was watching him from a distance or disguise, he cannot complain about it. In this context, the petitioner had argued about having a fundamental right to being left alone; that is, he had a fundamental right to privacy. The Supreme Court rejected this argument. This was the case of Kharak Singh v. State of Uttar Pradesh [1964(1) SCR 332].

So, at the end of the year 1962, there were just these two decisions of the Supreme Court – one of 1954 and another of 1962 – stating that privacy, as claimed by such persons in the context of criminal law or procedure, was not a fundamental right.

Now, let us ask a simple question here. Take the imaginary Census law that forces every citizen to inform the Census officers about the size of their sexual organs. If such a law had been challenged in the Supreme Court of India in those days – 1954 or 1962, what would have the Supreme Court hypothetically decided then?

What are our fundamental rights about, anyway? Apparently, none of the fundamental rights itself says that privacy is a fundamental right. Added to it, at that time, the AK Gopalan case held the field. It had said that each fundamental right should be read independently of other fundamental rights. However, had only an outrageous law like our imaginary Census law had reached the Supreme Court then, I think that the Court would have modified its jurisprudence then to do justice to the citizens. If following AK Gopalan judgment would have let such an outrageous law to remain immune from judicial interference, the Supreme Court would have been forced to discard it. It would have evolved a newer jurisprudence then. After all, what are the guaranteed fundamental rights anyway? Article 14 is about equality between persons in the eye of law; Article 15 is about prohibition of discrimination between citizens on certain grounds like caste, religion, sex or place of birth; Article 16 is about equality of opportunity to citizens in employment under the Government; Article 17 is about abolition of untouchability (to overcome any argument that untouchability is a part of Hindu religion or custom and is therefore, protected under the fundamental right that guarantees religious freedom); Artice 18 is about abolition of titles and nobility – the privileged classes; Article19 is about freedom of speech and other freedoms to citizens; Article 20 is about protection to accused in criminal cases; Article 21 is about observance of due procedure before taking away life or liberty of any person; Article 22 is about protection against arrest and detention in some cases; Articles 23 and 24 are about prohibition of exploitation of human beings, labour or children; Articles 25, 26, 27 and 28 are about religious freedom; Article 29 and 30 is about protection of minorities; Article 31 is about fair procedure in property acqusition laws and Article 32 is about the right of any person to move the Supreme Court for a violation of any of these rights. So, when you have a Constitution grant such a varied set of fundamental rights to its citizens, could you still argue that the Constitutional courts should approve our imaginary Census law that asks all citizens to inform the Government about the size of their sexual organs?

Finally, thanks to the personal sense of insecurity of Smt.Indira Gandhi, an expanded meaning to Article 21 was eventually given by the Supreme Court in the coming decades. I have read that Smt.Indira Gandhi did not want her daughter-in-law Maneka Gandhi to travel abroad in 1977. However, she had just lost all power at the Centre. The new power at the Centre too didn’t seem to want Maneka Gandhi to travel abroad. There is a provision in the Indian Passports Act that allows the Central Government to impound a passport without saying much to the person affected. Smt.Maneka Gandhi’s passport was impounded on 2 July, 1977. Within a few months after that, a 7 judge bench of the Supreme Court gave a very expanded meaning to Article 21. This is known as Maneka Gandhi v. Union of India [(1978) 1 SCC 248].

Article 21 says, “no person shall be deprived of his life or liberty except according to procedure established by the law”. In our case of the imaginary Census law, the law is a valid procedure. And, if a narrow meaning is put to Article 21, the Courts would find themselves helpless. However, if the Courts would place an expanded meaning to Article 21 so as to examine whether the ‘procedure established by law’ is oppressive, draconian or fundamentally repugnant to orderly governance, the Courts would develop a greater reach over such laws. The 1971 decision in RC Coopers and this 1978 Maneka decision giving an expanded meaning to Article 21 dramatically and irreversibly changed our constitutional jurisprudence in the days, weeks, months, years and decades afterwards.

In 1975: a smaller Bench of the Supreme Court in the case of Govind v. State of Madhya Pradesh [(1975) 2 SCC 148] held that privacy is a fundamental right by seeing it as included in Article 21. Of course, it could not have said anything different. And, privacy came to be firmly treated as a fundamental right after that decision. There was no looking back. Of course, occasionally, the Government or another person would point to the 1954 and 1962 decisions of the Supreme Court to say that privacy is not a fundamental right. And, the Court concerned would rightly ignore such an argument. Everyone had firmly moved forward.

In the last 4 decades: Both the Supreme Court and all the High Courts have firmly treated privacy as a fundamental right and have evaluated different laws on that basis. In the last four decades, the context in which the petitioners were complaining of the violation of their fundamental right to privacy or the Government was asserting a violation of citizen’s right to privacy was as varied as the political noises in this country– a prostitute’s right to privacy to be left alone at times, right of women to be employed on parity with men in places where liquor is served, constitutionality of cow slaughter prohibition laws, food habits of citizens in their homes, right of citizens to receive information about their candidates during elections, right of citizens to receive information about their Governments, mother seeking guardianship of a child without disclosing the name of the child’s father, criticism of public servants, media coverage of criminal trials, compulsory administering of brain mapping, truth detector or polygraph tests upon accused persons, reasonableness of resettlement programs after displacement by dam building, periodic submissions to Government by ultrasound clinics, right to ask for a public servant’s income tax return, right of bank defaulters to protect their privacy from public disclosure, power of Registration officers to raid any home to detect insufficiently stamped property documents, reasonableness of an application by a spouse to a Court asking for ‘unsoundness of mind’ test on the other spouse, patient confidentiality by a doctor particularly when the patient is diagnosed with a dreaded disease, telephone tapping of political rivals, and a few hundred more.

November, 2012: A retired Judge of the Karnataka High Court, K S Puttaswamy challenges the constitutionality of the Aaadhaar card scheme launched by the Central Government. You must know about what the Aaadhaar card scheme is. More petitions were filed and clubbed with it. The first and the foremost ground of attack in these petitions is that privacy is a fundamental right and that the Aaadhaar card scheme severely violates it. Of course, you would know that the Aaadhaar scheme collects your personal information, scans all your ten fingers and your eye-iris. And, you should also know that no other leading country of the world compulsorily collects such biometric (body related) personal information from its citizens. There are two reasons, I would say, for that. One, the citizens wherever would revolt and second, their constitutional courts would never allow such a scheme to take hold.

This is the third week of August, 2017. It has been nearly five years since Justice KS Puttaswamy’s petition was lodged in the Supreme Court. In these many years, the Court has heard arguments for several days or weeks. First, the matter was heard by a Bench of two and three judges. They heard the matter at great length. And, the Central Government came out with its expected argument that there is no fundamental right to privacy under the Constitution of India because of what was said in the 1954 and 1962 decisions. And, the Central Government even argued that the 1975 Govind decision itself was given in ignorance of the previous binding decisions and all the decisions given in the 42 years after 1975 were given in ignorance! This is truly, a startling argument. However, the Supreme Court never asked the Central Government whether it was arguing that the decisions of the Supreme Court and the High Courts in these 42 years were wrongly decided and that, the Central Government was going to argue that hazardous things such as narco analysis on crime suspects or indiscriminate telephone tapping by the Government was legal and constitutional. There is a real-world difference between deciding wrongly and deciding per-incuriam. Had only the Supreme Court bothered to ask these simple questions to the Central Government, it would have realised that what was being asked by the Government was plain foolishness and nothing else. Irrespective of whatever the Court might have previously said about privacy being nor not being a fundamental right, whenever it is faced with a stark legislation such as a compulsory narco-analysis on criminal suspects or our imaginary Census law, it would simply revise its jurisprudence and hold that privacy is a fundamental right and would invalidate the law that had intruded into citizens’ deepest private spaces – out of an existential threat, if for no other reason, I would say. Anyway, what’s the worth of a Supreme Court that cannot protect the innermost space of its citizens from unwarranted governmental intrusion? A Supreme Court that doesn’t know how to protect horrible government intrusions into citizens’ lives wouldn’t inspire much confidence in its people and would have been ignored, scoffed or forgotten soon.

Yet, the Supreme Court took the invitation from the Central Government to examine whether the 1954 and 1962 decisions were correctly decided and went on to constitute a 9 judge bench to examine that issue. This 9 judge bench concluded its hearing two weeks ago. A judgment is expected shortly from this bench. The only issue it will decide is whether privacy is a fundamental right. If this 9 judge Bench were to disagree with the Central Government and hold that privacy is a fundamental right, the progress in the hearing of the Aaadhaar petitions would still be at the same stage it was in when the petition was lodged in November, 2012. Thereafter, a smaller bench will hear fresh arguments on whether the Aaadhaar card scheme is unconstitutional.

To repeat, at some point in 2017 or 2018 or 2019 when that fresh hearing would take place, it would be indistinguishable from the day in Nov, 2012 when Justice KS Puttaswamy had filed his petition to the Supreme Court.

Falling standards: The fact that the Supreme Court of India cannot even make up its mind about whether this unprecedented Aaadhaar card scheme violates the right to privacy of Indian citizens in five years of argument is a testament to the deeply falling standards of the Supreme Court in recent times.

In these five years, the Court merely directed the Central Government and State Governments to ensure that Aaadhaar card scheme is not made compulsory for their various welfare schemes. Well, you readily know whether the Central Government and the different State Governments have followed this directive from the Supreme Court.

115 Crore Aaadhaar cards: If you thought that the garibi (‘poor’, in Hindi) only ration card was the most popular card in India, you may have to brace for a heart attack now. There are about 15 crore ration cards in India. And, there are about 115 crore Aaadhaar cards in India! While the debate went on and on in the Supreme Court about the very legality of this Aaadhaar card, the Central Government went about enrolling nearly 90% of the population under this scheme – a strong testament to the strange confidence of today’s Central Government to witness a reversal of the constitutional law of the past four decades.

Waste of time: The hearing by the 9 judge bench of the Supreme Court is nothing but a sheer waste of time. It cannot really ask whether the 1954 or the 1962 decision was wrong for the time it was delivered. Those decisions were right for the time they were delivered and they do not need any correction today. However, in the unlikely event that this 9 judge bench of the Supreme Court holds that privacy is not a fundamental right for whatever reason, it would not even be helpful or binding on any Court in the future for the following reasons. The right to privacy, as discussed at the very beginning, is undefined. So, when the Court deals with an undefined right, it can only deal with those aspects of such an undefined right that a citizen complains of; whatever the Court says on those aspects would be binding upon the subordinate courts. However, this 9 judge bench has no concrete case before it; it is not examining the constitutionality or the complained injury from the Aaadhaar scheme. It is merely examining an abstract idea – whether the right to privacy is a fundamental right. So, if this 9 judge bench holds that privacy is not a fundamental right, a smaller Bench of the Supreme Court that has to deal with the Aaadhaar card scheme or our imaginary Census law may very well state that this 9 judge bench never had any concrete injury to a citizen before it in order to properly evaluate whether the Constitution grants a fundamental right of privacy to a citizen; and that, when a Court does not even have an injured person before it, it cannot know whether the right defeated by his injury is protected under the Constitution. In fact, such is the futile nature of the deliberations taken by this 9 judge bench.

And, there are other problems with this 9 judge bench deciding that privacy is not a fundamental right. If it so holds by going back to the rule in AK Gopalan – by reading each fundamental right separately – it would have invited future benches to simply ignore it. The 1971 R.C.Coopers decision is by an 11 judge bench that is not just larger than the 1950 AK Gopalan bench; but is also larger than this 9 judge bench as well. And, it would be nearly impossible to even imagine that this 9 judge bench would do such a thing. If India is taken back to the time before RC Cooper, there could be a collapse of a few rights of the citizens in this country for a short while; there could be judicial and administrative chaos and everything that goes with it, for a short while. So, I am tempted to wonder why this 9 judge bench was even constituted in the first place when there is no real possibility of it saying that privacy is not a fundamental right – if for no better reason than to not wanting to be brushed aside and ignored by future courts.

And, is the Supreme Court of India today slightly unwilling to take daring decisions that are unpalatable to the Central Government? There is already evidence of such reluctance by the Supreme Court.

Take the November 8 demonetisation: I had written a legal column then that was widely circulated across the country; that this demonetization was wholly illegal and unsupported under the Reserve Bank of India Act, 1934. No major country in recent decades had done what was done by Mr.Modi on that day – wiping out 86% of the currency in circulation through a mere notification issued under Section 26 of the Reserve Bank of India Act, 1934. Even the 1978 demonetisation that was done for a very small portion of the currency in circulation then was done through a separate legislation by the Morarji Desai Government [First, ‘The High Denomination Bank Notes (Demonetisation) Ordinance, 1978’ and then through, ‘The High Denomination Bank Notes (Demonetisation) Act, 1978’]. When the affected this time challenged the Nov.8 demonetisation before the Supreme Court, the Court merely pushed the hearing forward and did little else.

Is this how the Supreme Court should protect the property rights of its citizens when it learns that 86% of their wealth is being wiped out through a mere executive notification – by washing its hands off for the moment and wanting to deliberate years later when nobody would care to know if such an economic disaster was lawful when issued? Read at: http://www.legallyindia.com/views/entry/no-secret-private-businessmen-from-the-corporate-world-were-part-of-demonitisation-decision-making

The demonetization ran its course and sometime in the future, the Supreme Court will deliver its verdict on whether that whole exercise was legal. In fact, the Nov.8 demonetisation was of such huge magnitude that it is unlikely to be repeated in the future decades by India or any other country. A judgment delivered years later about the legality of such a rare economic mishap can only come from a Court that is beset with deeply falling standards.

And, just compare the nearly 5 years of time spent by the Supreme Court of today in hearing the Aaadhaar petitions without any progress with the time taken in the leading decisions that spelt out special rules of interpreting the Constitution that were discussed by the 9 judge bench two weeks ago:

2.5 months by a 6 judge bench: AK Gopalan v. State of Madras –AK Gopalan was arrested by the Madras Government on 1st March, 1950. He immediately approached the Supreme Court. Within two and a half months, a 6 judge bench of the Supreme Court delivered a monumental decision that was discussed around the world. (Judgment on 19-May-1950)

4 months by an 8 judge bench: M.P.Sharma v. Satish Chandra –– On 25, November, 1953 the premises of certain companies and their officers were raided. They immediately approached the Supreme Court. The final judgment was delivered in less than 4 months by the Supreme Court; this judgment was considered a landmark for that time (Judgment on 15-Mar-1954).

9 months by an 11 judge bench: R.C.Cooper v. Union of India –– On July 19, 1969, the President of India promulgated an Ordinance to nationalize private banks. The affected approached the Supreme Court. In less than 9 months, an 11 judge bench delivered its landmark verdict on 10-Feb-1970. There are very few judgments that can rival the sharpness of judicial thought in this judgment.

7 months by a 7 judge bench: Maneka Gandhi v. Union of India –  On 2 July, 1977, Maneka Gandhi’s passport was impounded by the Central Government. She approached the Supreme Court immediately and within 7 months, the Court had delivered a decision that resonates even today in many courts where fundamental rights are debated (Judgment on 25-Jan-1978).

You just saw that the above monumental decisions were reached by large benches of the Supreme Court in only a few months. And, in those days, even the rich could not afford the exorbitant air travel. And, travel to the Supreme Court in the capital of New Delhi from different parts of India by other means would take several days.

Falling standards: And, I also have numerous other basis to say that the standards of our Supreme Court have been falling in recent times. I and my team of lawyers studied and analysed all the 884 judgments delivered by the Supreme Court in 2014. We concluded, depressingly, that only 7% of those judgments had involved a constitutional question. The rest of the judgments, of course, were ordinary questions of law. Read here: http://www.legallyindia.com/the-bench-and-the-bar/sc-lacks-capacity-to-deliver-proper-jurisprudence-only-7-of-apex-judgments-really-had-anything-to-do-with-the-constitution-in-2014-reveals-research-20150206-5574 and http://indianexpress.com/article/india/india-others/is-your-case-in-the-93-or-the-remaining-7/

In the next two years, that is, for 2015 and 2016, we have similarly studied and analysed all the judgments delivered by the Supreme Court on different parameters. We have to say that our findings that will be published shortly show very depressing statistics for the Supreme Court.

And, what about the highly concerning misreading of our anti-corruption law by the Supreme Court and all the damage that has come from it – the corrupt going scot-free across the country? Read http://www.legallyindia.com/views/entry/one-ignorantly-given-sc-judgment-is-wreaking-havoc-across-india

And, what about the wrongful conviction of our young men due to a dubious misreading of the rape provisions of the Indian Penal Code by our Supreme Court and other Courts under it? Read: http://www.legallyindia.com/views/entry/ignorant-judges-have-been-destroying-young-and-innocent-lives-through-rape-convictions

Finally, if I was the petitioner or the counsel arguing in the Supreme Court in this Aaadhaar card case, I would have firmly withdrawn my case from the Supreme Court in protest at its procrastination. The hearing in this case without any progress in the past five years is a testament to how badly the Supreme Court of India has fallen in standards in recent times. Some of the best counsels in India have been arguing in the Aaadhaar card cases. And, after nearly five years of fine arguments, all they have to show is nothing but wasted time and effort. Thanks, to the Supreme Court’s procrastination.

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