2018 has been a seminal year for the Supreme Court. The apex court gave its view on landmark issues with varying degrees of jurisprudential success. This has created an environment of critique towards the court’s dealings and possible overstepping of its judicial role. Picking the thread from its assertiveness in the Triple Talaq judgment of 2017 in protecting individual liberty, 2018 served as a watershed moment in the expansion of the court’s influence on municipal policy across a spectrum of issues.

Among the major decisions of the Supreme Court this year, I would list the following 10 judgments for the reason that they touch the lives of millions and account for the court’s opinion on the status of civil and political rights in India.

1. Ruling on the movie ‘Padmavat’

The Supreme Court judgment on the ‘Padmavat’ row in the beginning of this year had been a landmark decision. Led by the then Chief Justice of India (CJI), Dipak Misra, the court noted that creative freedom, freedom of speech and expression can’t be guillotined and artistic freedom has to be protected in a civilised society. The court established that cinema, as an art form, is an inalienable part of the right to freedom of expression as enshrined in the Constitution and available to citizens.

The judgment has been hailed not only from the perspective of establishing certain inalienable rights of the individual in society through a statutory interpretation of the Constitution, but also from the perspective of the zealousness of the Supreme Court as an institution of faith in guarding the rights of citizens and providing them incessant protection from any form of injustice. However, of course, for many, there have been occasions to disagree from the considered view of the learned court, but it needs to be kept in mind that judicial decisions are functions of a dynamic process that evolves with time and hence keep changing.

2. Cauvery water verdict

In February, the Supreme Court delivered its verdict on the long-standing Cauvery river water dispute. Declaring Cauvery water as a “national asset”, the Bench reduced the allocation of water from Karnataka to Tamil Nadu. The Bench adjudicating the matter on the bedrock of equal status of states and doctrine of equability declared that no state could claim exclusive right to a river passing through different states. The Bench modified the water-sharing arrangements finalised by the Cauvery Water Dispute Tribunal in 2007, mandated the setting up of the Cauvery Management Board in the river water sharing dispute and instructed the Union government to draft a new scheme to ensure compliance of its judgment.

Critics note that the court did not seek the assistance of at least two technical experts mandated under the Inter-State Water Disputes Act, 1956, and that the court failed to decide on a deficit formula for sharing of water and allocation of surplus water alongside problems of climate change.

3. Decriminalising gay sex

In September, the Supreme Court decriminalised homosexuality by partially striking down Section 377 of the Indian Penal Code (IPC). The court found that consensual sex between two adults was covered by the “right to privacy”.

Guided by transformative constitutionalism, this progressive judgment found criminalisation of homosexuality to violate Articles 14 and 19(1)(a) of the Constitution. The Supreme Court bolstered its findings by declaring the right to live with dignity, which included all essential attribute of individuality, be it an orientation or an optional expression of choice as an inseparable facet of an individual’s life. By upholding the supremacy of constitutional morality, the Supreme Court aimed to put an end to harassment and discriminatory treatment faced by the LGBTQ community.

4. Politicians with criminal antecedents

In a unanimous verdict by a five-judge Bench, the Supreme Court declined to bar politicians from contesting elections. Upholding the principle of separation of power, the court refrained from encroaching on the lawmaking powers of the legislature and left it to Parliament to enact a strong law for restraining people facing heinous and grievous offences from contesting elections. The judgment has been well-received for the Supreme Court’s prudent exercise of judicial restraint.

5. Aadhaar judgment

In September, the Supreme Court upheld the constitutional validity of Aadhaar. While critics have described Aadhaar as a gateway to building a police state, supporters insist the project ensures better delivery of government services, reduce corruption and brings about efficient governance.

While in its 2017 judgment the Supreme Court declared the right to privacy as sacrosanct, in the 2018 judgment it aimed to strike a balance between the said right and the concerns of the State. As per the 2018 judgment, Aadhaar won’t be mandatory for a citizen for availing government services and benefits. However, to bring the objectives of the Act to fruition, the State is required to collect and monitor certain mandatory information without being overly intrusive. The Supreme Court has asked the government to walk the extra mile in ensuring the security of personal data, which was the central issue surrounding the Aadhaar dispute. Also, the Supreme Court read down Section 57 of the Act, which facilitated the sharing of citizens’ data with private entities. Hence, banks and telecom companies cannot ask their customers to link their bank accounts and mobile numbers with their Aadhaar numbers. However, it will still be mandatory for filing income tax returns and PAN applications.

The Aadhaar hearing has been one of the longest in the history of the Supreme Court, second only to the historic Kesavananda Bharati case. It’s a matter of relief that it culminated in a guarded decision that addresses the legitimate concerns of all stakeholders without jeopardising the interests of the State.

6. Live-streaming of court hearings

In response to several petitions, the Supreme Court has brought its courtroom proceedings under the public domain. As per its decision, cases of national and constitutional importance will be streamed live for all citizens. The decision is best summarised by the then CJI, Dipak Misra, as “sunlight is the best disinfectant”. This decision will not only contribute towards ensuring transparency in the court business, but also in enforcing accountability of judges and lawyers.

7. Reservation in promotion for SC/ST employees

The Supreme Court has revisited the matter of giving reservations to Scheduled Castes (SCs) and Scheduled Tribes (STs) in promotion in government jobs. The apex court had clarified that there is no requirement to collect quantifiable data of backwardness of SCs/STs to provide reservation in promotion, as given in the 2006 Nagaraj judgment, and held it bad in law. However, the court did not comment on two other conditions given in the Nagaraj judgment, which dealt with adequacy of representation of SCs/STs in promotion and not to disturb administrative efficiency. Thus, the onus is now on the state and Central governments to decide as to when and in what form reservation in promotion is to be implemented.

8. Adultery

In quashing adultery as a criminal offence under Section 497 of the IPC, the Supreme Court departed from its previous stand that Section 497 protected the “sanctity of marriage”. Instead, it declared the provision as arbitrary and that it facilitated “proprietary rights” of a husband over his wife - the ability “to use the woman as chattel”. Due to the prescribed subordination and discrimination, the Supreme Court found the provision to violate Articles 14 and 15 of the Constitution.

The supporters of criminalisation of adultery argue that in the Internet age and rapidly changing moral standards, chances of distress in conjugal relationships are more real than imaginary and, therefore, a penal sanction would help preserve the marital bond. On the other hand, in light of Article 21 of the Constitution, it has been argued that by making adultery a criminal offence, individuals would be deprived of dignity, privacy and the autonomy to make one’s own choices concerning his/her sexuality.

9. Sabarimala verdict

In the Sabarimala decision, the Supreme Court has lifted a centuries’ old prohibition of women between the ages of 10 and 50 from entering the Lord Ayyappa temple in Kerala. The majority of the judges found the practice to violate the rights of Hindu women and declared such gender discrimination to be inharmonious with the Constitution. Thus, the court overruled the Kerala High Court’s 27-year-old decision restricting the entry of women into the temple.

Supporters of this judgment argue the inapplicability of Article 26 and find that under Article 25, a woman’s fundamental right to enter the temple be protected and given supremacy over customary practice, if any. The thrust of the argument is that the exclusion of women on the grounds of celibacy and menstruation is another way in which patriarchy seeks to subjugate women. In this judgment, issues of faith and religion have been circumscribed by constitutional morality and the constitutional values of dignity and freedom.

In her dissent, Justice Indu Malhotra questions the maintainability of the petition, requiring that the source of the cultural dissent arise from the marginalised class, and not an external authority like the court. Grounded in religious pluralism, her dissent states that a pure question of faith cannot be looked into by the Supreme Court, and is therefore immune from judicial review and the application of constitutional norms of equality and non-discrimination.

10. Bhima Koregaon arrests

In a major setback for activists arrested for their role in inciting violence in Bhima Koregaon and supporting the cause of Maoists, the Supreme Court refused to release the activists from arrest while noting that their activity falls beyond the sacrosanct right to dissent. The court not only refused to constitute a Special Investigation Team (SIT) for probing the case but also noted that the arrests had been made not because of their propensity to dissent, but because of evidence of their involvement in violent activities.

Supporters of the decision characterise Maoism as a major threat to the internal security of India and believe that the proponents of the cause must be treated as enemies of the State and dealt with an iron hand. On the other hand, critics not only attack the ambiguity of the charges and characterise the arrests as an attempt to muzzle dissent, but are also dissatisfied with the apex court’s refusal to set up an SIT.

Meenakshi Lekhi is a BJP MP who represents New Delhi constituency in the Lok Sabha and is a lawyer in the Supreme Court. The views expressed here are personal.