AN APPRAISAL OF SUPREME COURT OF INDIA AS THE

DEFENDER OF CIVIL LIBERTIES (2010-2020)

SUBJECT: RESEARCH METHODOLOGY

SESSION: 2021-2023

SUBMITTED TO:
A. M. KHAN
B. ASSISTANT PROFESSOR

SUBMITTED BY:
HANERI
LL.M (S/F)
21MLW1008
III SEMESTER
 AN APPRAISAL OF SUPREME COURT OF INDIA AS THE DEFENDER
OF CIVIL LIBERTIES (2010-2020) 1

ABSTRACT
This paper briefly discusses the Supreme Court’s role in liberating or limiting an individual's
civil liberties. Civil liberties have always been at stake and in order to rectify the situation the
constitution makers ensured that every individual have certain basic civil liberties which are
envisaged under Part III of the Constitution. This is the endeavor of the State to ensure that every
individual is treated fairly, justly and judicially. In time the world has changed rapidly and the
meaning of civil liberties has evolved exponentially. Therefore, it is important to examine the
role of the Supreme Court as the defender of civil liberties. Our Supreme Court is the one of the
strongest Courts in the world with wide powers. The actions of the Supreme Court have been
seen in line with Jawaharlal Nehru's wish to wipe “every tear from every eye”. Even the smartest
and brightest tend to make mistakes and the Supreme Court is no exception. Also India is a
country with a huge population hence any decision given by the Supreme Court can’t be
accepted by all.In this paper we will examine the Supreme Court’s decision from the perspective
of the Indian constitution.
 CHAPTER I: INTRODUCTION

In India, civil liberties are essentially understood as the fundamental rights envisaged in Part III
of the Constitution2. But is it so, maybe yes or maybe no. Thereby it becomes even more critical
to understand the difference between civil rights and civil liberties. Civil liberties are basic
rights or fundamental rights guaranteed by the Constitution to protect us from oppression (for
example our Freedom of speech, Right to privacy, due process etc.). Civil rights are the legal
rights that protect the individual(s) from discrimination or unequal treatment based on specific
characteristics (example: employment discrimination, disability, Gender)3 It was James Madison
who furthered civil liberties in America by introducing Bill of rights in Congress.

India has seen the arbitrary exercise of power by many rulers in the past. Even though the British
claimed that India existed in lawlessness before the occupation of the British Empire. The
concept of Dharma existed since Vedic age (3000B.C. to 1000B.C.). In Hindu religion dharma is
referred to as ‘duty’ , ‘virtue’, ‘morality’. it is the power which sustain the universe and society 4.
This concept forms the fundamental rule of law, constitutionalism in India.5

In India, civil liberties are synonyms to fundamental rights. Hence this discussion is based on
Part III of the Constitution6. Fundamental rights are the civil liberties enshrined in India's
Constitution, which are guaranteed to all Indian citizens. Such requests are enshrined in the
Constitution which guarantees them 7 and is justifiable by the court. 8 Fundamental Rights and the
Constitution are inviolable rights of the individual against the States. The object is to ensure
inviolability of certain essential rights against political vicissitudes. 9 Violation of such requests
can be challenged in the Supreme Court or High Court.

2
Part III, FUNDAMENTAL RIGHTS, The Constitution of India, 1950
3
FIND LAW, Civil Rights vs. Civil Liberties (Last visited Jan 3, 2020)
https://civilrights.findlaw.com/civil-rights-overview/civil-rights-vs-civil-liberties.html
4
BBC - Religions - Hinduism: Hindu concepts, Bbc.co.uk (2014),
https://www.bbc.co.uk/religion/religions/hinduism/concepts/concepts_1.html(last visited Jul 30, 2021).
5
Subhash C. Kashyap, OUR CONSTITUTION 266 (National Trust Book 2014)
6
Part III, FUNDAMENTAL RIGHTS, The Constitution of India, 1950
7
Ibid.
8
Article 32and article 226, of The Constitution of India, 1950
9
Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694
The first Attorney General, MC Setalvad, said, “In building a nation, alive to its national and
international duties the court will play a great and singular role and establish itself in the
consciousness of the Indian people. Like all human institutions, the Supreme Court, we hope,
will earn reverence through truth.”10

Many times, courts are seen only as arbitrators in disputes between individuals or private parties.
The judiciary is an important organ of the government. The judiciary also acts as a guardian of
the constitution by keeping check and balance on the other organs of Government. The
judiciary by the tool of judicial activism also does the work of legislature laws when the
legislature fails to do so. Which are in the larger interest of citizens of India. The supreme court
interpreted the exception 2 of section 375 of IPC, 1860 as 18 years of age instead of 15 years of
age as given in the Act11. If wife is under the age of 18 then sexual intercourse between the
couple is rape as enunicated by supreme court.12 The Supreme Court of India is one of the
strongest courts in the world. Right from the 1950 the judiciary has played an important role in
interpreting and in protecting the Constitution. Courts must thrive to achieve our social,
economic and political justice as enshrined in the Constitution13.

Following six fundamental rights are extended to every citizen of India:

● Right to Equality14 (Article 14- 18): The Right to equality includes equality before the
law and equal protection of laws (Article 14), the prohibition of discrimination on the
ground of religion, race, caste or place of birth (Article 15), equality of opportunity in
matters of public employment (Article 16) and the abolition of untouchability and
system of titles (Article 17 and 18).

● Right to Freedom15:(Article 19-22) the Right to Freedom of speech and expression,

assembly, association or union, movement, residence, and Right to practice any
profession or occupation has been guaranteed to every citizen, subject to certain
reasonable restrictions(article 19). Every citizen has a right to self perseverance in

10
What Happened 71 Years Ago, When the Vision of the Supreme Court Was First Laid Out (thebetterindia.com)
11
section 375, exception 2, IPC, 1860; The independent thought v. Union of India, AIR 2018 SC.
12
id.
13
K. K. Baskaran v. State of Tamil Nadu, AIR 2011 SC 1485.
14
Article 14-18 of the Constitution of India, 1950.
15
Article 19-22 of the Constitution of India, 1950.
 criminal cases (Article 20, 22). A person cannot be denied his Right to life and personal
liberty (Article 21). Further right to education was added by the constitution
amendment16(Article 21-A)

● Right against Exploitation17 (Article 23-24): This Article ensure a Right against
exploitation, prohibiting all forms of forced labour including child labour(below 14 year
of age) and human trafficking.

● Right to Freedom of Religion 18(Article 25-28): Constitution under Article 25-28 ensures
that a person's right to religion is protected. Every person has a Freedom to freely
profess, practice, and propagate any religion of his/ her choice subject to reasonable
restriction as stated in article 25.

● Cultural and Educational Rights19(Article 29-30): Every citizen who is a minority has a
Right to conserve his/her culture, language or script, and to establish and administer
educational institutions of their choice;

● Right to Constitutional Remedies20 (Article 32): This article is regarded as the “Heart and
Soul” of the constitution by Dr. B.R. Ambedkar. Every person whose fundamental right
has been violated can seek remedy under this article. The same power is given to the
High Courts as well under article 226. The High Courts have been given wide powers
under article 226 as it can deal with the cases where fundamental as well as other legal
rights are breached. The Supreme Court and the High Courts can issue writs like Habeas
Corpus, Mandamus, Certiorari, Prohibition and Quo Warranto.

The power of the Supreme Court and clear demarcation of judiciary among other organs of the
government is evident from the following illustration. Articles 124 and 217 of Constitution of
India deals with the appointment of judges of the higher judiciary. These articles state explicitly
that the President of India would appoint judges after the "consultation" with India's Chief
Justice (CJI) and other judges. The word "consultation" is significant because, in 1993, the
Supreme Court decided in the second judges case that the CJI must agree to all judicial

16
Constitution(eighty-sixth Amendement) Act, 2002.
17
Article 23-24 of the Constitution of India, 1950.
18
Article 25-28 of the Constitution of India, 1950.
19
Article 29-30 of the Constitution of India, 1950.
20
Article 32 of the Constitution of India, 1950.
appointments. This created the collegium system, where the three senior-most Supreme Court
judges decide on who would be a High Court or Supreme Court judge. Later, in 2014 the NJAC
(National Judicial Appointment Committee) was proposed to make the High Court appointment
and Supreme Court judges and Chief Justices more transparent. The Commission will be
selected, whose members will be drawn from the judiciary, legislature, and society. Subsequently
changes to the Constitution were also made by adding Articles 124 A, B and C. It was held
unconstitutional in the year 2015 hence replacing the collegium system.
This may be an ordinary judgment for many, but the above decision shows the Supreme court's
broad powers. The Supreme Court in our country has been seen active in the aspect of liberally
interpreting the Constitution. It has not been shying away from interpreting the Constitution,
striking down laws, amending the Constitution, and protecting individuals' civil liberties. On the
other hand, the common criticism the Supreme Court faces is that the Supreme Court is
sometimes performing the legislature's functions. In the Vishaka Case,21 The Supreme Court is
also commonly seen as an unelected legislature by many, but it is also important to note that the
Supreme Court has been filling gaps left by the legislature. In the Minerva mill 22 judgment, it is
clear that the Constitution and not the Parliament is supreme. In a landmark case of
Kesavananda Bharati,23 The Supreme Court held that no part of the Constitution, including
Fundamental Rights, is not beyond the Parliament's amending powers' scope, "the basic structure
of the Constitution cannot be changed even by a constitutional amendment." 24 The Supreme
Court acted very smartly by not issuing the exhaustive list of what constitutes the basic structure
in order to keep constant vigil on the acts of the legislature and the executive. The Supreme
Court may declare a law passed by the government is invalid as being violative of the
Constitution, although Parliament may within restriction amend parts of the Constitution.

The decade of 2010 and 2020 is a period of the Congress and BJP party in power. The changing
dynamics and working of the Supreme Court are indeed most notable since 2010. The pending
cases have increased exponentially. Most recently the Supreme Court has adopted a laid back
approach. Not only that, many Supreme Court judges have alleged corruption in the judiciary in
the past decade. Prashant Bhushan, senior Advocate has alleged Supreme Court of corruption on
21
Vishaka & ors. V State of Rajasthan & ors, (1997) 6 SCC 241.
22
Minerva Mills Ltd. & Ors vs Union Of India & Ors, (1980) 3 SCC 625.
23
Kesavananda Bharati v. State of Kerala, (1983) 4 SCC 225.
24
Ibid.
various occasions. In his interview to Tehlka magazine in 2009, he alleged previous CJI’s to be
corrupted. Furthermore, in June 2020 he again issued a statement alleging rampant corruption
among judges. The Supreme Court was considered too hyperactive before this decade. But the
most researchers, media houses say that Supreme Court changes its attitude since the election of
the new regime25.

Judicial Restraint is a theory whereby judges exercise his/her power with caution. It says that
judges should carefully examine the law before striking it down unless it is unconstitutional
prima facie. Judicially-restrained judges believe in stare-decisis, the principle of upholding
established precedent as given by past judges. Judicial Restraint is also known as a strict
constructionist. Whereas according to Judicial activism, also known as loose constructionist,
judges try to act to give a decision that is more relevant to the time but is different from the
previous precedents. This is how any constitution can be interpreted. A judge who is a strict
constructionist reads the law and rules on cases literally and relies on the intention of framers of
the Constitution. A judge who believes in judicial activism might rule liberally. Both Judicial
Activism and Judicial Restraint are two distinct and opposite theories.
Another era of judicial activism began when the Indian Supreme Court interpreted the word
`life' in Article 21 to not only mean mere survival but a life with dignity. In this research paper
we will try to understand which approach the Supreme Court has applied in the past decade.

CHAPTER II: SUPREME COURT AND JUDICIAL ACTIVISM

The fundamental rights fall under Part III of the Indian Constitution. These fundamental rights
mostly cover the civil and political rights given under article 2 to 21 of the Universal
Declaration. Justice Gajendragadkar in Sajjan Singh case said: "the very foundation of the

25
THE WIRE, How Has the Supreme Court Fared During the Modi Years? (last visited Jan 23,
2020) https://thewire.in/law/supreme-court-modi-years
democratic way of life usher in this country by the constitution 26". In the Subodh Gopal case, the
Chief Justice said that "whole objective Part III of the constitution is to provide protection for
the freedom and rights mentioned therein against arbitrary invasion by the State."27

To evaluate the Supreme Court's stand on exercising its power to widen the scope of civil
liberties, one must analyze some of the most prominent judgments from 2010 to 2020.

Judicial review is the most controversial concept of constitutional law as, the moment the
judiciary tries to circumscribe the limits of the legislature, there is a lot of opposition to this. So
there are some of the countries which do not allow judicial review at all and on the other hand
there are some countries which do allow it and judicial review has also led to judicial activism.
According to comparative constitutional theory there are three types of models which we come
across. Firstly, the Westminster Parliamentary system in which the Parliament is supreme, there
is rule of law and judicial review of any parliamentary action is prohibited. Secondly, American
Model where there is separation of powers horizontally (into different organs of the government)
and vertically (into Centre and State). The American model allows for judicial review and we
have borrowed the judicial review from this model. Thirdly there comes Commonwealth
Parliamentary federations in Canada, Australia and India. Judicial review in such federations
becomes important. The Constitution is put on a higher pedestal than the ordinary laws.

The Supreme Court issued passive euthanasia guidelines, thereby extending life's scope to
include the Right to death. This judgment does not include active euthanasia or assisted suicide 28.
In Common Cause case29, the Supreme Court recognized passive euthanasia, living wills and
best interest principle to be part of right to life in India. It accepted the principle of euthanasia on
the following grounds:

A. The Right to die with dignity is a fundamental right included within the meaning of life
as held in the Gian Kaur case30.

26
Sajjan Singh v. State of Rajasthan, 1964 AIR 464.
27
The State Of West Bengal vs Subodh Gopal Bose And Others, 1954 SCR 587.
28
Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454.
29
Common Cause (A Regd Society) v Union of India and Anr, (2018) 5 SCC 1.
30
Smt. Gian Kaur vs The State Of Punjab, 1996 SCC (2) 648.
 B. Any adult human being having the capacity to make an informed decision. Such an
individual has the right to refuse medical treatment including withdrawal from life-saving
devices.
C. A mentally competent person will execute an advance medical directive or live with
reasonable safeguards. Advance medical directive informs doctor, concerned parties and
family as to what to do or what not to do in case it is impossible for him or her to recover
from a terminal condition.
D. In the case of the incompetent patient, the principle of best interest will be applied. Such
a decision will be made by competent medical experts and implemented only after the
cooling period.

Court further enhanced the quality of life. The Supreme Court interpreted article 14, 19, 21 in
a way that helps those who are helpless. The Supreme Court placed itself at higher standards
by upholding the Constitution to an even better position than before. The court can be seen
coming into the developed nations league with advanced jurisprudence on the above subject.

In the Shreya Singhal case, the court said the choice of words in Section 66A of I.T. Act 31 is not
mentioned in article 19(2) as reasonable grounds for restricting Freedom of speech and
expression. The choice of words in the Information Technology Act shows excessiveness, not
reasonableness on account of the Legislature. The Supreme Court repealed section 66A from the
Act. In today's day and time where information is so widespread everyone has an opinion on
everything. We can't restrict people's fundamental rights by irresponsibly exercising the power of
law-making. The revaluation of answer books at public examination was held to be covered
under the Right to Information Act. Free speech cannot be gagged by fear of mob violence.32
This being a part of Freedom of speech and expression 33 Sec-37734 violates Right to life, i.e.,
Article-21 of Indian Constitution as nothing can be more private than private and consensual
sexual relations covered under the ambit of right to privacy protected under article-21.35

31
Singhal v. Union of India, (2013), 12 S.C.C. 73.
32
Indibility Creative Pvt Ltd and others v. Govt of West Bengal and others (2019) W.P. (Civil) No. 306/2019 on
11.04.2019.
33
CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497.
34
Section 377of the Indian Penal Code, Unnatural offences.
35
Navtej Singh Johar v. Union of India, (2018) 7 SCC 192.
In National Legal Services Authority v. Union of India36, the Apex court recognized the
transgender community as 'third gender'. Self determination of gender is part of personal liberty
as guaranteed under article 21 of the Constitution. The Supreme Court in the landmark
judgments cemented Armed Forces officers' Right to permanent commission and did the same
for women in the Navy. Both decisions emphasized that the Armed Forces must strive to do
away with discriminatory mindsets about women's role in society. 37 In another case,38 The court
said the police should execute an arrest without warrant, where a woman is subjected to cruelty
by husband and his relatives. This being the cognizable offence and non-bailable offence. The
court also said to follow the provision under Cr.P.C mandatorily. Section 497 of Indian Penal
Code39 has been finally struck down by the Supreme Court in a landmark decision 40. As Justice
D.Y.Chandrachud says “husband is not the master of wife”. The Section was held to be
"absolutely and manifestly arbitrary" and violative of articles 14, 15 and 21 of the Constitution of
India, 1950. This Section was found to be degrading women's honor and upholding age or
patriarchal principle. In this paper we will examine the Supreme Court’s decision from the
perspective of the Indian constitution.

Discrimination based on gender has to be done away and has been provided as a fundamental
right in our Constitution. The decision to produce a child or not i.e., to make reproductive
choices is a right enshrined in article 21.41 The Supreme Court has been the protector of women's
rights. These cases clearly demonstrate the pro-women stance by the Supreme Court. But lack of
representation of women judges is worrisome. As some researchers and activists firmly believe
that the Supreme Court just started its work towards women welfare and there is still a long way
to go.

In K.S.Puttaswamy42 the court overruled its earlier decision of M.P.Sharma 43 and Kharak Singh44
only to the extent that the Constitution of India does not protect the Right to privacy. It further
said the right to privacy is protected as an integral part of the right to life and personal liberty.
36
AIR 2014 SC 1863
37
Secretary, Ministry of Defence v. Babita Puniya & Ors, (2020 SCC OnLine 200).
38
Social Action Forum for Manav Adhikar v. Union of India, (2018) 10 SCC 443
39
Section 497 of the Indian Penal Code, Adultery.
40
Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.
41
Suchitra Srivastava v. Chandigarh Administration, AIR 2010 SC 235.
42
Justice K.S.Puttaswamy(Retd) vs Union Of India, (2017) 10 SCC 1.
43
M. P. Sharma And Others vs Satish Chandra, 1954 SCR 1077.
44
Kharak Singh vs The State Of U. P. & Others, 1964 SCR (1) 332.
The Supreme Court applied the proportionality test by balancing the right to privacy and citizens'
right to benefit. The Supreme Court held that Aadhar was not mandatory to open or update bank
accounts or to obtain a new mobile phone connection. But Aadhar linking for income tax
purposes with pan card and availing subsidies was held necessary.

The Supreme Court of India has taken a very proactive stand in enabling citizen’s right to choose
representatives of their own liking. In Lily Thomas case45 the court upheld the disqualification of
a candidate based on conviction. The court also directed the Central Government to amend rules
and disclosure forms filed by candidates and their nomination papers to show their source of
income and their spouses and dependents46. The court further said that criminal antecedents
(contesting an election on the ticket of the particular party) of candidates were to be disclosed
and put up on the party websites and the declaration to be issued regarding criminal incidents
after filing of nomination papers. Such criminal incidents should also be published in widely
circulated local newspapers, and the same should be done before the filing of nomination
papers.47 The Supreme Court expanded the ambit of choice and hence made it an informed
choice. It also brought transparency to the process.

The Supreme Court in 2018 made the offences committed against SC and STs cognizable and
non-bailable under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Despite the constitutional mandate, the behaviour of other castes in the society had not changed
with respect to the members of scheduled castes and scheduled tribes and they still faced
atrocities. To overcome this and secure the rights of these classes of people the Supreme Court
took the stringent action by making offences against them to be cognizable and non-bailable.
THE SUPREME COURT took the similar view in allowing the menstruating females of 10-55
years to enter into the temple of Sabarimala. The judiciary is acting as the protector of civil rights
of the females but the society was not ready to easily accept the decision. There was a lot of hue
and cry across the country. Now the said decision has been set up for review for the higher
bench.

45
Lily Thomas v. Union of India, (2000) 6 SCC 224.
46
Lok Prahari v. Union of India, (2018) 4 SCC 699.
47
Public Interest Foundation and Ors. v. Union of India and Anr. (2019) 3 SCC 224.
 CHAPTER III: SUPREME COURT AND JUDICIAL RESTRAINT

When the makers of the Indian constitution adopted ‘Bills of Rights’ from the American
constitution, it was believed that it is important to protect the basic rights and freedom of the
citizens48. However, if we glance through a few of the cases in the recent years, we can see that
the Supreme Court has failed to either acknowledge or enact to implement the basic civil
liberties. The prime example of this can be the case of Anuradha Bhasin v. Union of
India,49 where the Supreme Court identified the right to the internet as a fundamental right under
the Indian Constitution but failed to oversee the implementation of the same. The people of
Kashmir are still largely deprived of the 4G internet services as only 2G services are provided
even during the time of Covid-19 when the internet is playing a very vital role in our day to day
life.50 Suspension of the internet for such a long time is not only violating the freedom of speech
and expression but also is hindering the right to occupation and education 51 of the people in
Jammu and Kashmir. In another connected case, the Supreme Court, when it was supposed to
restrict the usage of preventive detention52 by the Central Government, has followed the path
of ADM Jabalpur v. Shiv Kant Shukla53 and allowed it to detain political and non-political
persons after the abrogation of Article 370 of the Indian Constitution in Kashmir. 54 The courts
need to understand why there are only a few of the countries left with preventive detention
laws55, and India, too, needs to let go of them if it wants to protect the rights of its citizens. The
concept of preventive detention is only meant for wartime and is not present in any major
democracies throughout the world for which the Hon’ble Supreme Court, in the case
of Rekha v. State of Tamil Nadu56, said that “Prevention detention is, by nature, repugnant to
democratic ideas and an anathema to the rule of law. No such law exists in the USA and
England

48
CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)- VOLUME VII,
http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C01121948.pdf (last visited Jan ,2020)
49
2020 SCC OnLine SC 25
50
Shakir Mir, Internet Restrictions in J&K Are Undermining the Supreme Court's Orders, THE WIRE (JAN 26,
2021), https://thewire.in/rights/jammu-kashmir-4g-internet-supreme-court
51
Faheema Shirin RK vs. State of Kerala and others, AIR 2020 Ker 35
52
Under Section 151 of The Criminal Procedure Code, 1973 (CrPC)
53
(1976) 2 SCC 521.
54
Sitaram Yechury v Union of India, Writ Petition (Criminal) No. 229 of 2019.
55
Shah Ishfaq, Preventive Detention, LEGAL SERVICE INDIA (Jan 27, 2021, 9:45 PM),
http://www.legalserviceindia.com/legal/article-751-preventive-detention.html
56
(2011) 5 SCC 244.
(except during wartime).57” Even though the highest court of the nation agreed to the fact that the
preventive detention laws are mostly misused by the state for its political motives, it failed to
take actions against it and the repercussions of which can be clearly seen after the renunciation of
the special status of Jammu and Kashmir where lots of political and non-political persons were
detained, and the court even issued conditions while allowing visitors.

The Supreme Court has also shown restraint in cases where political influences or legislative
dominance is apparent. In State of Rajasthan v. Union of India, 58 the Court rejected the petition
as it involved politics. Therefore the Court refused to go into such matters. In S.R. Bommai v.
Union of India,59 The Court said where the political element dominates, no judicial review is
possible. The exercising of power given under Art.356 has a political inclination, and therefore
the judiciary refuses to interfere. Ahmadi J. said “It was challenging to change judicially
manageable norms to dissect the political decisions/matters. If the courts do such intervention, it
will violate the principle of division of power as such the Court should avoid questioning his
political wisdom.”

In the past decade the supreme court has been under constant scrutiny by not only external
agencies but also from its own people. The Supreme Court, suo moto, took the case of criminal
contempt against Advocate Prashant Bhushan over his tweets and imposed a fine of One
Rupee.60 Even though a fair criticism isn’t considered as contempt of court, recently the Attorney
General KK Venugopal has granted consent to initiate numerous contempt proceedings, which
clearly undermines the freedom to speech and expression under Article 19(1)(a) of the Indian
Constitution and also is contrary to the Shreya Singhal61 judgment of 2015. The internet is one of
the most basic sources of expression of one’s thought, but the courts have given a very narrow
approach in recent few years, and lots of artists and comedians have been served with a notice of
criminal contempt.

57
Ibid
58
1977 SCC (3) 592.
59
(1994)3 SCC 1.
60
In Re Prashant Bhushan & Anr
61
Shreya Singhal v. Union of India, (2013) 12 SCC 73.
Another instance where the Hon'ble Supreme Court failed to do complete justice to the females
is granting them Permanent Commission under Army 62 and the Navy.63 When article 14 of the
Indian Constitution provides for equality before the law, it does not talk about a fragment of
justice but rather treat equals equally.64 For some, this case may be a victory to their feministic
beliefs, but in reality, the Judiciary merely interpreted the provisions of the Army Act and Navy
Act, respectively, which provided permanent commission decades ago. This isn't a case of
judicial activism, but rather the Supreme Court solely interpreted the rights which were already
given to the female officers on the Short Service Commission by the legislature of India. Unlike
various developed nations, the females in India are still not given an opportunity to be part of the
frontline in any of the armed forces and are just restricted to work in certain non-combatant
roles. Both Babita Puniya and Annie Nagaraja's case failed to address this, and further, they
failed to even include the LGBTQ+ community to be openly part of the armed forces in India.

In the last decade, the Supreme Court has been the center of many controversies, and one which
can be seen through naked eyes was the CJI Sexual Harassment case65. In this case, the
proceedings were not transparent, and the Supreme Court clearly violated the maxim of ‘Nemo
iudex in causa sua.’ Instead of an independent panel, the Supreme Court established an in-house
committee, and judges who were junior to the Chief Justice of India were part of the panel that
declared the judgment in his favor.

Furthermore, there are numerous cases which are to be decided on the civil liberties of the
citizens are still pending before the courts. In one such instance where the constitutional validity
of the Special Marriage Act, 1954 was challenged in Nandini Praveen v. Union of India66, and
the petitioner claimed that the recommendation by Law of Commission of India in its 242nd
report should be incorporated to reduce the cases of honor killing and protect the right to marry
and choose one's life partner. There are many more cases like Nandini Praveen’s case, which

62
The Secretary, Ministry of Defence v Babita Puniya & Ors, (2020 SCC OnLine 200).
63
Lt. Cdr. Annie Nagaraja, 2020 SCC OnLine SC 326 v Lt. Cdr. Annie Nagaraja, (2020 SCC OnLine SC 326).
64
Article 14 in The Constitution Of India
65
In Re : Matter of Great Public Importance touching upon the Independence of Judiciary, Suo Moto WP (C)
1/2019.
66
W.P. (C) No. 000983 - 000983/2020
dealt with critical civil rights like abortion67, Assam’s National Register of Citizens68, Muslim
Women’s Right to Pray in Mosques69, and many more but have been pending for ages.

The timeline of the year 2018 holds into its lap a number of important judgments which abridged
long standing archaic laws and maintained some of them as they are. On one footing where the
Apex Court managed to uphold the constitutional beliefs with its judgments but at the same time
it has also been criticized for encroaching into the religious beliefs of the citizens.The Supreme
Court in the Sabrimala temple case70 by 4:1 majority struck down the long standing
discrimination of customary religious practice which prohibited entry of mensurating women
from age 10-55 years which in turns violated the fundaental rights guaranteed under article 14,
21 and 25 to women by the Indian Constitution. But Justice Indu Malhotra by standing on
dissenting points stated that it is not for the courts to interfere into the matters of religion and it
should be left to those who practice it. The Supreme Court set the stage for live streaming of
court proceedings of cases of constitutional importance. 71 Even the criminal law of the country
provides for the criminal proceedings to be held in an open court as under section 327 of Code of
Criminal Procedure, 1973. It will encourage the principle of open court, effectuate the public’s
right to know and reduce independence on second hand views 72. This drives its lineage from the
‘perestroika’ and ‘glasnost’ policy of the earlier Soviet Union which marks the openness and
transparency in the system.

CHAPTER IV: CONCLUSION AND SUGGESTIONS

‘Amid the clash of arms, the laws are not silent.’73

67
Swati Agarwal v. Union of India, WP (C) 825/2019
68
Assam Public Works vs Union of India, WP (C) 274/2009
69
Yasmeen Zuber Ahmad Peerzade & Anr. vs Union of India, WP (C) 472/2019
70
Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors.
71
Swapnil Tripathi and Ors. v. Supreme Court of India and ors. AIR 2018 SC
72
said by D.Y.Chandrachud, Top 12 Landmark Judgments of 2018 delivered by Supreme Court (legaldesire.com)
73
Liversidge v. Anderson, (1942) AC 206 and Gautam Bhatia, Offend, shock or disturb (Oxford India Paperbacks 1)
(2016).
In the past decade, the Supreme Court has taken an assorted approach in asserting civil liberties
when it should have acted as a guardian of the constitution. Gautam Bhatia, in his book,
mentioned the words by Lord Atkin, where he asked the courts to stand for the rights of innocent
citizens,74 which should have been the stand of India’s Apex Court in light of recent events but
even though there are various cases where the court has expanded the preview of civil liberties.
However, it took more of a narrow approach and restrained the liberties provided by the Indian
Constitution in other cases. In a report by Freedom House,75 India scored a 37/60, in a numerical
representation of civil liberties and in another Civil Liberties Index by Knoema, 76 India placed at
98th position, even behind South African countries like Ghana and Namibia. India's overall
democracy score, out of a possible 10, is 6.90 in 2019. It has dropped from 7.23. India's rank
dropped from 51 to 41 in 2019.77 "The primary cause of the democratic deterioration is the
erosion of civil liberties in the country," summarized the economic intelligence unit.

The legislative efforts are seen in several legislations where it is committed to secure and protect
civil liberties. The Protection of Civil Rights Act, 1955; The Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989; The National Commision for Women Act, 1990;
The National Commission for Minorities Act, 1992; The National Commission for Backward
Classes Act, 1993 are few to name. The Supreme Court is at its toes to uphold the spirit of these
legislations by ensuring that they do not become a mere dead letter.

When the society does not accept the judicial decisions then the judiciary is out of option other
than to exercise restraint in those circumstances. The same is evident from the verdict given in
the Sabarimala case. A remarkable decision which protected civil liberties was the right of
privacy which was made an integral part of right under article 21 of the Indian constitution.

Another celebrated decision of the Supreme Court was the 2014 NALSA case in which they
recognized the transgender as ‘third gender’. The Supreme Court was appreciated for this
decision from all over the world. It emphasised that bodily orientation is no ground for any kind
of discrimination and they are no different from other human beings. This goes on to prove that
just because people are opposing some ideas of change presently does not mean that they won't
74
Id. at 37.
75
FREEDOM HOUSE, supra note 2.
76
KNOEMA, supra note 3.
77
Democracy Index ,supra note 3.
accept that in future. To point out very famous example that uptill few decades back people were
opposing the idea of homosexuality . Now they are part and parcel of our society. Sometimes
society can take much longer to change than expected. In such a situation a push is required.
Here such a push can be provided by the Supreme Court.

It is high time when the apex court of the nation makes visible efforts to ensure that the citizens
of the nation can rightfully enjoy the civil liberties promised under the country's constitution. We
are not saying that there shouldn’t be any limitations to civil liberties, but the restrictions should
be proportional to the rights. The Supreme Court should interpret these laws, widely or narrowly,
keeping in mind the time frame in which the laws are interpreted. Amidst the covid crisis, the
worldwide lockdowns can be justified even though it can be said to be a virtual house arrest.
However, not allowing females to be part of frontlines in armed forces, in the 21 st century, is just
an archaic and narrow interpretation of laws. Another really important step that needs to be
taken is to reduce the number of cases pending before the courts. A viable proposal for which
can be to increase the strength of the Supreme Court judges or to increase the age of retirement
or the court needs to impose exemplary costs in the cases of abuse of law. 78 The dire need for
such changes can be realized after witnessing the emotional speech of the then, Chief Justice of
India T.S. Thakur, in 2016, said that a total of 70,000 new judges are required for the proper
functioning of the judiciary in a Joint Conference of Chief Ministers of the States and Chief
Justices of the High Courts.79

Through this research paper, we can understand that the judiciary has applied judicial restraint
several times in the last decade. Such as in the case of Babita Punina 80 and Annie Nagaraj,81
where the Supreme Court, if used the activist approach of interpretation, might have diversified
females' roles in the armed forces by allowing them a permanent commission but also giving
them a chance to work in combat-related fields, they now have to fight another decades-long
battle to get that right. Moreover, the court did not recognize the third gender's right to work in
the armed forces openly. A more similar approach was seen in the Jammu and Kashmir Habeas

78
Subhash C. Kashyap, OUR CONSTITUTION 266 (National Trust Book 2014)
79
Krishnadas Rajagopal, CJI Thakur's Emotional Appeal to Modi to Protect Judiciary, THE HINDU (SEP 22, 2016
03:19 AM),
https://www.thehindu.com/news/national/CJI-Thakur%E2%80%99s-emotional-appeal-to-Modi-to-protect-judiciary/
article14257126.ece
80
Supra 32.
81
Annie Nagaraj Case, supra note 19.
corpus case82, where instead of restricting the use of preventive detention by the government, the
Supreme Court not only acted blindfolded but also put conditions on the people trying to visit the
political and non-political individuals who were on house arrest. Further, the Supreme Court
needs to make sure that its judgments meet the implementation or they are just going to be a false
notion of rights, merely there to cover up shortcomings of the government as the people are still
facing the internet ban in Kashmir even after a year of the judgment of the Supreme Court.83

To recall the words of the first Chief Justice of India, Justice Sir Harilal Jekisundas Kania, said,
“In endowing the Supreme Court of India with very wide powers, the Constituent Assembly, the
Assembly representing the voice of the people through their elected representatives, has shown
complete confidence in the court as the final body for dispensing justice. We hope to deserve that
confidence. We trust that the people of India will also maintain the independence, honour and
dignity of the Supreme Court.”84

82
Sitaram Yechury Case, supra note 12.
83
Shakir Mir, supra note , at 2
84
supra 7.