The Supreme Court Advocates-on-Record Association (SCAORA) on Wednesday called for nominations to the election of one female SCAORA member for the Supreme Court of India‘s Gender Sensitisation and Internal Complaints Committee (GSICC).

The election will be held on December 16 for which the nomination process will be open from December 9 to 13 from 10:30 am till 4:30 pm at the SCAORA office. Only candidates registered with SCAORA can file the nomination for the election.

In case, only a single nomination is received till the last date of filing of nomination, such candidate shall be elected unopposed and there shall be no casting of ballot thereafter. The declaration of tentative list of candidates will be on December 13 at 5:30 PM and the withdrawal of nomination/objection could be done before 1:00 PM on December 14.

The scrutiny of nomination papers and declaration of final list of candidates will be announced on December 14 at 4:00 PM onwards at SCAORA Office.

The polling will be on December 16 from 10:00 AM to 4:30 PM at the SCAORA Office while the counting of votes and declaration of results will be announced at 5:30 PM after the polling is over.

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The candidates are requested to be present either personally or through their authorised representatives, so that the clarification on objection, if any, can be explained to the Election Committee.

Following an unanimous resolution passed by the Executive Committee of SCAORA yesterday, a request was made to conduct the election for the aforementioned purpose as the term of Abha Sharma, who was the nominated member in the GSICC is going to end on January 6, 2022.

These elections are being conducted for the purposes of representation at gender sensitisation and internal complaints committee of the Supreme Court in terms rule 4(2)(d) of The Gender Sensitisation And Sexual Harassment Of Women At Supreme Court (Prevention, Prohibition & Redressal) Regulations, 2013.

The Supreme Court Advocates-On-Record Association (SCAORA) has requested members of the SCAORA interested and eligible to enroll for empanelment for pro bono services as part of legal aid.

The interested candidates should enroll with the Supreme Court Bar Association office on or before December 18, 2021 in the format given in the second page of the PDF attached at the end of this article.

A joint circular by SCAORA Honorary Secretary Joseph S. Aristotle and SCBA Honorary Secertary Ardhendumauli Kumar Prasad said the enrolment is pursuant to a meeting of the office-bearers of SCBA and SCAORA with Justice Uday Umesh Lalit, Executive Chairman, National Legal Services Authority (NALSA). It was discussed and decided that legal aid criminal matters relating to imprisonment for more than seven years to be filed or pending before the Supreme Court of India would require pro bono appearances and assistance of Senior Advocates, Advocates with 15 years’ of experience from the date of enrolment and Advocates-On-Record with 10 years’ experience from the date of registration as AOR by Supreme Court.

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Senior advocates may have the assistance of junior counsels of their own choice, the circular said.

The Supreme Court Advocates On Record Association (SCAORA) on Saturday organised an Academy e-lecture series on the Constitution, specifically on the Basic Structure and Analysis of Landmark Decisions of Minerva Mills, I.R. Coelho and Kesavananda Bharti.

Senior Advocate Harish N. Salve started the lecture series with his observations on various types of Constitution, including the flexible and inflexible. He said the American constitution is inflexible as in parliament cannot create a law to bypass it, whereas in India, Parliament has much larger scope. Barring the basic structure, secularism and free, fair elections.

One exception that remains, he said, “When we draft a petition, we say it’s illegal ultra vires and violative of basic structure, Conceptually there is problem, if you are challenging an entry in 9th schedule. But if it is not in 9th schedule legislation, the question of basic structure doesn’t come in. Because you realise when you talk about basic structure, you are narrowing your challenge And ordinary legislation must face the full brunt of 14,19,21. So when you are drafting one has to be careful about.

“Not the rights test is applied but the right itself is available, the notion of basic structure comes out of 368 and 368 applies to Constitutional amendment. So an ordinary law violating the basic structure is an inaccurate expression. It has gained currency because if you violate 14,19,21 you say it violates basic structure but conceptually that’s a wrong articulation of principles.

“A law which violates 14, violates 14. law which violates 14 and 19 violates 14 and 19. law which violates 14, 19 and 21 violates the whole thing. But an amendment of Constitution which seeks to impair 14, 19 and 21 applying the rights test violates the structure. It’s a narrower tunnel you have through which you can pass. If you can pass through that your challenge succeed.

“But merely because a parliamentary ordinary legislation violates 14,19,21 doesn’t mean it violates the basic structure but it’s a manner of expression. More like a powerful colloquial expression. So this is the history of development of basic structure. If you understand all these judgment, it becomes far more comprehensive.

Here’s the text of his lecture:

“It is a wonderful endeavour, the e-lectures. One of the most interesting areas of Indian Constitutional Law is the area of basic structure. The basic structure doctrine is peculiar to the Indian Constitution and to some extent marks a third dimension to the academic debate about the nature of constitution.”

“Let us start with a high level approach of problem. The basic structure doctrine is unknown to constitutional law because the debate amongst the constitutional funding. We thinker of constitutional law has always been between or rather related to the divide between a rigid and a flexible constitution.

“A rigid constitution like the American constitution to an extent like the Indian Constitution, which in plain language only means that Parliament cannot by legislation side step constitution. If you look at the UK and the jurors of UK always remind you, the UK doesn’t have a constitution, it has an unwritten constitution. But in UK, it acknowledge that Parliament is supreme and sovereign. So, there is no Constitutional Principle that stands against Parliamentary legislation.

“I am not getting into area where there was a overhang of the treaty where till time the UK was part of Europe and how that worked and impacted is not necessary today. The important distinction always was been between the two positions. A flexible constitution and a rigid constitution. The basic structure doctrine evolves a third dimension and that third dimension was sort of a halfway house that Parliament could amend the Constitution, but not the basic structure.

Purely from a jurisprudence point of view, it is a paradigm shift in the thinking of constitutions and instead of having a binary divide between a rigid and flexible constitution. We now have a greater area where constitutions are in certain areas and… coming down to a degree of granularity, let us see how it began, and how it has reached… As you know, the initial constitutional battles were fought around the right to property.

The first amendment which brought in article 31A and 31B were challenged, when land reforms were put in place. The feudal land owners challenged the land reforms laws. That was the battle ground initially.

Article 368 originally had a marginal note, which said procedure for amending the constitution. It provided that it has to be by 2/3rd present in majority. Shankari Prasad Singh Deo vs Union of India, Sajan Kumar, the first battle before supreme court did not find any limitation in Article 368. The SC also did not find article 13 to be an impediment. In Shankari Prasad Singh Deo vs Union of India (AIR. 1951 SC 458), the Supreme Court unanimously held, “The terms of article 368 are perfectly general and empower Parliament to amend the Constitution without any exception whatever. The argument was that under article 13, any law which has been inconsistent with part 3 is void.

A constitutional amendment is a law, and if it violates part 3, it is void, which therefore leads to the conclusion that Fundamental Rights can never be amended. This was rejected in two cases, Shankari Prasad and Sajan Kumar. By Supreme Court saying that a constitutional amendment needs a constitutional amendment, Article 13 did not apply. This was Parliament exercising constituent power vs parliament exercising legislate part under the two lists. (List 1 and 3) On that principal therefore, SC decline to read any limitation on parliament’s power of amendment.

If we pause here for a moment we realise that we are in a situation where for all practical purposes our constitution becomes what is called a flexible constitution. Ultimately what does article 368 requires, it requires parliament 2/3rd vote, and if it’s 2/3 without any limitation then we are in a situation where really there it is down to numbers gain. There was this ideological conundrum which kept haunting the court, that is what lead to SC revisitng the whole construct, that happened in golakhnath case.

Majority lead by Justice Subba Rao in Golakhnath went back on the Shankari Prasad, Sajankumar formulation and set 368 as only a procedure. If the power of Indian constitution doesn’t spring from 368 and if 368 is only a procedure then where do we find the power to amend the constitution. The majority answered that, that power is found in entry 97 of list 1. The residuary list. Now the result of this line of reasoning is, that if it is entry 97 list 1 with article 250…246 etc. the ordinary legislative power of parliament, and if those provisions apply as they apply to any other law made by Parliament… then article 13 stands in the way of any Constitutional amendment that doesn’t or rather that seems to be inconsistent with constitutional rights.

Now it is obvious that an amendment which says a constitutional right shall be amended or shall be inapplicable is inconsistent with constitutional rights because it purports to amend the right. The net effect of golakhnath was that no amendments could be made to any Fundamental Rights. But Golakhnath was faced to the prospect was what do we do with the first amendment & all the land reforms & entry list which has gone by and started growing. So Golakhnath came up with a philosophy of prospective overruling. And they said herein after this shall be the position.

This was not satisfactory but continued till first 31C was inserted in the constitution through the 25th amendment act of 1971. through which the government tried to give primacy to some Directive Principles of State Policy over the Fundamental Rights. That’s when Kesvanand was called upon to revisit Golakh Nath. Mr. Palkiwala was clearly certain that SC will not accept the Golakhnath philosophy because it went too far.

He started working on an alternative hypothesis and found a lot of international material. This solve the hypothesis of Implied legislation.

SCAORA President Shivaji Jadhav said, “We could not have find a better speaker then Salve, who is a senior advocate and a former Solicitor General. I am hopeful that the present series will help people.

The Supreme Court on Thursday adjourned hearing on an appeal filed by the Election Commission of India, alleging that EVMs and VVPAT machines used in the assembly polls of six states were lying unused as they were preserved due to an order extending the limitation period for filing pleas, including election petitions, during the second wave of Covid-19. 

A three-judge bench led by Chief Justice N.V. Ramana and also comprising Justices Surya Kant and A.S. Bopanna said, “We have to consider all the matters and not only election petition. List the main matter Suo Motu petition next week.”

An interlocutory application was filed last week in the apex court by the EC in the suo motu case titled as In Re Cognizance for Extension of Limitation arising out of the challenge faced by the country on account of Covid-19 and resultant difficulties that could be faced by the litigants across the country.

The application sought directions for fixing a timeline for filing of election petitions in the States/Union Territories of Assam, Kerala, NCT of Delhi, Puducherry, Tamil Nadu and West Bengal, as in absence of the same, all EVMs used in these States/Union Territories were currently stuck or unable to be used/deployed for upcoming/future elections due to a previous order of the Supreme  Court.

April 27, 2021 order of Supreme Court

On April 27, 2021, the apex court, after taking note of the onset of second wave of Covid-19, had relaxed the statutory period for filing petitions, including the election petitions, under the Representation of the People Act, 1951.

Consequently, anybody can still file a plea challenging the election of a returned candidate and as per procedure, the poll panel is required to preserve EVMs and VVPAT machines, having evidentiary value, to put forth its views in judicial proceedings.

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“Resultantly, all the EVMs and VVPATs belonging to the Election Commission of India that were used in recently held Assembly Elections are blocked and cannot be used in future/upcoming elections,” the plea said.

The Court had taken Suo Motu cognisance last year and by its order dated March 23, 2020, directed that the “period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended with effect from March 15, 2020 till further order/s to be passed by this Court in present proceedings.

“This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction,” the Court had added.

The apex court, while noting that the country is returning to normalcy and that all the Courts and Tribunals had started functioning either physically or by virtual mode, disposed of the Suo Motu by issuing certain directions, thereby regulating the extension of limitation and bringing it to an end.

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Pursuant to the same, the Supreme Court Advocate on Record Association (SCAORA) filed certain Interlocutory Applications (IAs), highlighting the daily surge in Covid-19 cases in Delhi and sought restoration of the order dated March 23, 2020.

ECI application before the apex court 

The ECI referred to the Instruction dated 15.07.2016, issued by the Election Commission of India to the Chief Electoral Officers (CEOs) of all States and Union Territories regarding the period of retention of EVMs used in elections.

Thus, as a result of the statutory provisions/rules, the relevant instructions issued by the Election Commission of India and the Order dated 27.04.2021 passed by the Supreme  Court, the Election Commission of India is unable to use a substantial number of EVMs. The same is a cause for concern for the Election Commission of India as it is scheduled to conduct assembly elections in a few states next year. In this context it is pertinent to note that the term of Legislative Assemblies of Goa, Manipur, Uttarakhand, Punjab and Uttar Pradesh are coming to an end in 2022, the ECI states.

In the Application it was pointed out that in order to ensure proper physical distancing during polls, the Election Commission of India had restricted the number of electors in a polling station to 1000 electors in the latest elections. Therefore, additional polling stations were created in the polling stations where the number of electors was more than 1000. Hence, if we take the same logic, then around 37.73% additional polling stations would need to be created in the aforesaid elections.

Moreover, it was humbly submitted that in order to conduct General Elections to State Legislative Assemblies, generally 135% EVMs and 145% VVPATs (on total polling stations) are provided to States. With expected increase of polling stations, requirement of EVMs and VVPATs may also be further increased i.e. 51% additional EVMs and 55% additional VVPATs need to be allocated in addition to normal requirement of EVMs and VVPATs in these States.

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The ECI further mentioned that 37.73% additional polling stations would need to be created in the aforesaid elections. Moreover, it is humbly submitted that in order to conduct General Elections to State Legislative Assemblies, generally 135% EVMs and 145% VVPATs (on total polling stations) are provided to States. With expected increase of polling stations, requirement of EVMs and VVPATs may also be further increased i.e. 51% additional EVMs and 55% additional VVPATs need to be allocated in addition to normal requirement of EVMs and VVPATs in these States.

“The Applicant therefore submits that it would be in the interests of justice that the present Application is allowed and that this Hon’ble Court may kindly direct a timeline for filing Election Petitions during the continuance of the Orders passed by this Hon’ble Court extending the normal statutory period of limitation so that the EVMs/VVPATs used in the States/Union Territories of Assam, Kerala, NCT of Delhi, Puducherry, Tamil Nadu and West Bengal may be released on the basis of the status of filing of Election Petitions by that due date. It is trite to mention that the Election Commission of India releases for reuse only those EVMs which have been used in constituencies in respect of which no Election Petition/Writ Petition has been filed raising any EVM related issue. The Applicant further craves for liberty to file a detailed affidavit, if so required by this Court,” read the application, filed through Advocate Amit Sharma.

The appeal filed by the Election Commission of India (ECI), requesting the Supreme Court to review its previous order regarding preservation and blocking of EVMs and VVPAT machines used in the Assembly polls of six states, while extending the limitation period for filing pleas, including election petitions, during the second wave of Covid-19, was adjourned by the apex court.

Supreme Court on Thursday adjourned hearing on an appeal filed by the Election Commission of India, alleging that EVMs and VVPAT machines used in the assembly polls of six states were lying unused as they were preserved due to an order extending the limitation period for filing pleas, including election petitions, during the second wave of Covid-19. 

A three-judge bench led by Chief Justice N.V. Ramana and also comprising Justices Surya Kant and A.S. Bopanna said, “We have to consider all the matters and not only election petition. List the main matter Suo Motu petition next week.”