A docket full of unresolved constitutional cases

News: There is a great asymmetry of power between the state and the citizen. Thus, one of the proposals during the making of the constitution was that petitions which challenge the violation of fundamental rights by the state should be decided within one month.

The pendency of critical cases in the judiciary reflects that such proposals should be considered seriously and cases should be resolved as early as possible.

What are the pending issues?

Kashmir: There is a constitutional challenge to the presidential order which diluted Article 370. The question is whether the centre can use Article 356 at a time when there is no elected Government and assembly in the state, given the political impossibility of returning to the pre-2019 situation. Also, whether union legislature has authority to alter state boundaries under Article 3. The case still awaiting a hearing.

Article 3 – Formation of new States and alteration of areas, boundaries or names of existing States.

Article 356 – President’s Rule can be imposed on any state of India on the grounds of the failure of the constitutional machinery.

Electoral Bonds: The scheme authorizes limitless, anonymous corporate donations to political parties, making election funding both entirely opaque to the people. Thus, impacting not only the integrity of the election process but also the constitutional right of citizens to an informed vote.

However, other than two interim orders, the Supreme Court has refused to accord a full hearing to the constitutional challenge. The case still awaiting a hearing.

Central Bureau of Investigation (CBI) status: In 2013, Gauhati High Court held that the CBI was not established under any statutory authority. This verdict immediately stayed when appealed to the SC. However, later on, it has never been heard. Thus, the CBI continues to function despite a judgment by a constitutional court that has found its very existence to be illegal.

Apart from this, there are several other issues that are also waiting for the final judgment like Citizenship (Amendment) Act (CAA), Section 43(D)(5) of the Unlawful Activities (Prevention) Act which makes the grant of bail effectively impossible and others.

Read hereIssue of Bail: Relief to Sudha Bharadwaj is welcome. Prolonged imprisonment of other Bhima Koregaon accused must also be questioned
How does judicial evasion damage the judiciary itself?

Court’s inaction has a serious impact on the rule of law. As CJI holds the responsibility for constituting benches and scheduling cases, he should make sure that the important constitutional cases need to be heard soon.

Source: This post is based on the article ” A docket full of unresolved constitutional cases” published in The Hindu on 7th December 2021.

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