The year 2023 has witnessed several important judgments delivered by Constitution Benches. Be it the constitutional validity of Article 370, the marriage equality petitions, the challenge to the 2016 demonetisation scheme of the Centre or the political crises in Maharashtra and Delhi, these cases, touched upon different significant issues. There were 18 judgments delivered by the...
The year 2023 has witnessed several important judgments delivered by Constitution Benches. Be it the constitutional validity of Article 370, the marriage equality petitions, the challenge to the 2016 demonetisation scheme of the Centre or the political crises in Maharashtra and Delhi, these cases, touched upon different significant issues.
There were 18 judgments delivered by the Constitution Benches(17 by 5-judge benches and 1 by 7-judge bench) in 2023, a significantly high number in a given calendar year.
Judgment is reserved on 5 Constitution Bench matters (4 heard by 5-judge benches and 1 by 7-judge bench).
Statement of Constitution Bench matters of 2023
Here is a detailed explanation of the Constitution Bench matters :
1. Centre's 2016 Demonetisation Scheme
Case Title: Vivek Narayan Sharma v. Union of India
Arguments Commenced: October 12, 2022
Judgement Reserved: December 7, 2022
Judgement Pronounced: January 2, 2023
Bench Composition: Justice S Abdul Nazeer, Justice BR Gavai, Justice AS Bopanna, Justice V Ramasubramanian and Justice BV Nagarathna
The Supreme Court Constitution Bench upheld by 4:1 majority the decision taken by the Union Government six years ago to demonetise the currency notes of Rs. 500 and Rs.1000 denominations. The majority held that Centre's notification dated November 8, 2016 is valid and satisfies the test of proportionality. Justice BV Nagarathna in her dissenting view held that though demonetization was well-intentioned and well thought of, it has to be declared unlawful on legal grounds (and not on the basis of objects).
Reports about this judgment can be read here.
2. Freedom of Speech and Expression of MPs/MLAs
Case Title: Kaushal Kishor v. State of Uttar Pradesh
Arguments Commenced: October 23, 2019
Judgement Reserved: November 15, 2022
Judgement Pronounced: January 3, 2023
Bench Composition: Justice S. Abdul Nazeer, Justice B.R. Gavai, Justice A.S. Bopanna, Justice V. Ramasubramanian and Justice B.V. Nagarathna
The Supreme Court held that additional restrictions, not found in Article 19(2), cannot be imposed on the exercise of right to free speech under Article 19(1)(a) of Ministers, MPs and MLAs. It held that the grounds mentioned in Article 19(2) for restricting free speech are exhaustive. The Court by 4:1 majority added that statements made by Minister, even if traceable to any affairs of state or protecting the govt, cannot be attributed vicariously to the govt even applying the principle of collective responsibility. In her dissenting opinion, Justice B.V. Nagarathna agreed that greater restriction cannot be imposed on free speech, in addition to grounds under Article 19(2). However, she observed that in case a Minister makes disparaging statements in his "official capacity", then such statements can be vicariously attributed to the govt. However, if the statements of the Ministers are stray remarks not consistent with stand of govt then it would be treated as personal remark she clarified.
Reports about this judgment can be read here.
3. Armed forces can initiate disciplinary action for adultery
Case details : Joseph Shine vs Union of India | 2023 LiveLaw (SC) 117
A Constitution Bench of the Supreme Court clarified that its 2018 judgment striking down Section 497 of the Indian Penal Code(which criminalised adultery) will not impact court martial proceedings initiated against personnel serving the armed forces for adulterous conduct.
The bench observed in the order that the 2018 judgment in the case Joseph Shine vs Union of Indiawas not at all concerned with the provisions of the armed forced Acts. The bench further noted that as per Article 33 of the Constitution, the legislations governing armed forces can provide exemptions from the applicability of fundamental rights.
A 5-judge bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar passed the order in an application filed by the Union Government.
4. Passive Euthanasia
Case Title: Common Cause v. Union of India
Arguments Commenced: January 17, 2023
Judgment Reserved: January 24, 2023
Judgement Pronounced: February 3, 2023
Bench Composition: Justice K.M. Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy, and Justice C.T. Ravikumar
The Supreme Court, in this case, modified the slew of directions relating to advance medical directives, or living wills issued in a 2018 judgement that had recognised the right to die with dignity as an inextricable facet of the right to live with dignity under Article 21 of the Constitution, and had, accordingly, upheld the legal validity of passive euthanasia. Common Cause had argued that the directions had become virtually unenforceable owing to the complexity of the procedure prescribed by the top court and had sought necessary amendments to make the judgement 'workable'. Accordingly, several changes were introduced by the five-judge bench in the guidelines laid down in 2018 with respect to the execution and enforcement of advance care directives, as well as the procedure for passive euthanasia.
Report about this judgment can be found here.
5. Supreme Court upholds the power of BCI to hold AIBE
Case Details : Bar Council of India v. Bonnie Foi Law College & Ors. |
Citation : 2023 LiveLaw (SC) 96
Bench : Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari
A Constitution Bench of the Supreme Court on Friday upheld the power of the Bar Council of India to require law graduates to qualify for the All-India Bar Examination as an eligibility criterion to practise law in India. Whether the qualifying examination should be held before or after enrolment was a matter best left to the discretion of the bar council, the bench said. Notably, the decision in V. Sudeer v. Bar Council of India, (1999) 3 SCC 176, in which the top court had held that no condition, other than those enumerated in Section 24 of the Advocates Act, could be imposed on a person wishing to practise law, was overruled.
Reports about this judgment can be found here.
6. Excommunication from Dawoodi Bohra Community
Case Title: Central Board of Dawoodi Bohra Community v. State of Maharashtra
Arguments Commenced: October 11, 2022
Judgement Reserved: N/A
Judgement Pronounced: February 10, 2023
Bench Composition: Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice A.S. Oka, Justice Vikram Nath, and Justice J.K. Maheshwari
The Constitution Bench referred the question of the validity of the practice of excommunication prevalent among the Dawoodi Bohras, to a nine-Judge Bench constituted to review the 'first Sabarimala judgement'. The Dawoodi Bohras form a sect of Shia Muslims, whose supreme leader is empowered to excommunicate or expel recalcitrant members, thereby, denying them access to the community mosque or burial grounds, as well as other facilities.
Reports about this judgment can be found here.
7. Appointment of Election Commissioners
Case Title: Anoop Baranwal v. Union of India
Arguments Commenced: November 17, 2022
Judgement Reserved: November 24, 2022
Judgement Pronounced: March 2, 2023
Bench Composition: Justice KM Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice CT Ravikumar
The Supreme Court ordered that Election Commissioners will be appointed by the President of India on the advice of a Committee consisting of the Prime Minister, and leader of Opposition in the Lok Sabha (or leader of largest opposition party), and the Chief Justice of India. The bench noted that several political parties came into power, however, none of them framed a law/ process for appointment of Election Commission. It said that this is a "lacuna" in law and that making of law under Article 324 of the Constitution is an unavoidable necessity.
Reports about this judgment can be found here.
8. Bhopal Gas Tragedy
Case Title: Union of India And Ors. v. M/s. Union Carbide Corporation And Ors
Arguments Commenced: January 10, 2023
Judgement Reserved: January 12, 2023
Judgement Pronounced: March 14, 2023
Bench Composition: Justice S.K. Kaul, Justice Sanjiv Khanna, Justice A.S. Oka, Justice Vikram Nath and Justice J.K. Maheshwari,
A Constitution Bench of the Supreme Court dismissed the curative petition filed by Central Government seeking to reopen the settlement with the Union Carbide Corporation (now Dow Chemicals) to claim additional compensation for victims of the Bhopal Gas Tragedy of 1984. It noted that settlement can be set aside only on the ground of fraud, but no ground of fraud has been pleaded by the Union of India. However, the Court directed that a sum of INR 50 crores lying with RBI ought to be utilized by the Union Government to satisfy pending claims, if any.
Reports about this judgment can be found here.
9. Arbitration clauses in unstamped agreement
Case : M/s. N.N. Global Mercantile Pvt. Ltd. v. M/s. Indo Unique Flame Ltd. And Ors. CA No. 3802-03/2020]
Citation : 2023 LiveLaw (SC) 343
A Constitution Bench of the Supreme Court answered the reference, which pertains to the issue - whether the arbitration clause in a contract, which is required to be registered and stamped, but is not registered and stamped, is valid and enforceable.
A 5-Judge Bench, comprising Justice K.M. Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice C.T. Ravikumar decided the issue by 3:2 majority.
Justice Joseph in concurrence with Justice Bose and Justice Ravikumar decided that "an instrument which is exigible to stamp duty may contain an arbitration clause and which is not stamped cannot be said to be a contract enforceable in law within the meaning of S. 2(h) of the Contract Act and is not enforceable under S 2(g) of the Contract Act”.
Justice Rastogi and Justice Roy concluded that non-stamping or insufficient stamping of the substantive instrument would not render the arbitration agreement unenforceable. The minority judgment noted that stamp deficiency being a curable defect would not render the arbitration agreement void.
Report about this judgment can be found here.
[Note that this judgment was later overruled by a 7-judge bench in December]
10. Irretrievable Breakdown of Marriage
Case Title: Shilpa Sailesh v. Varun Sreenivasan
Arguments Commenced: September 28, 2022
Judgement Reserved: September 29, 2022
Judgement Pronounced: May 1, 2023
Bench Composition: Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice A.S. Oka, Justice Vikram Nath, and Justice J.K. Maheshwari
The Supreme Court held that it can invoke its special powers under Article 142 of the Constitution of India to grant divorce on the ground of irretrievable breakdown of marriage, which is not yet a statutorily recognised ground. Notably, the bench also held that the mandatory waiting period of six months for divorce by mutual consent can be dispensed with subject to the requirements and conditions laid down in the previous judgments.
Reports about this judgment can be found here.
11. Delhi Government v LG
Case Title: Government of NCT of Delhi vs Union of India
Arguments Commenced: January 10, 2023
Judgement Reserved: January 18, 2023
Judgement Pronounced: 11 May, 2023
Bench Composition: Chief Justice DY Chandrachud and Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha.
The Supreme Court held that the National Capital Territory of Delhi has legislative and executive power over administrative services in the National Capital, excluding matters relating to public order, police and land. The Lieutenant Governor shall be bound by the decision of Delhi government over services, apart from public order, police and land, it held. If services are excluded from its legislative and executive domain, the Ministers and the Executive who are charged with formulating policies in the territory of NCTD would be excluded from controlling the civil service officers who implement such executive decisions, the Court held. The Court was of the opinion that if the officers feel they are insulated from the control of the government, it will dilute accountability and affect governance. Thus, the court remarked that in a democratic form of government, real power of administration must rest on the elected arm of the government.
Reports about this judgment can be found here.
12. Maharashtra Political Crisis
Case Title: Subhash Desai v. Principal Secretary, Governor of Maharashtra & Ors
Arguments Commenced: February 14, 2023
Judgement Reserved: March 16, 2023
Judgement Pronouncement: May 11, 2023
Bench Composition: CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha
The Supreme Court held that it could not order the restoration of the Uddhav Thackeray government as Thackeray had resigned without facing floor test. Further, the Supreme Court refused to use its powers under Article 226 and Article 32 in the matter to decide the disqualification issue. Accordingly, the court had handed over the decision of determining the disqualification petitions to the Speaker adding that the speaker “must decide the disqualification within reasonable period”. However, in its judgement, the Supreme Court found fault with the Speaker of Maharashtra Legislative Assembly for recognising the whip nominated by the Eknath Shinde-led group as the Chief Whip of the Shiv Sena. The Court also held that the decision of the Speaker to recognize Mr.Eknath Shinde as the Leader of the Shiv Sena Legislature Party was illegal as the Speaker did not ascertain if the decision had the backing of the political party. It was held that it is the "political party" which has the power to appoint a whip and the leader and not the "legislature party".
Reports about this judgment can be found here.
13. Validity of Jallikattu
Case Title: The Animal Welfare Board of India v Union of India
Arguments Commenced: November 24, 2022
Judgement Reserved: December 8, 2022
Judgement Pronounced: May 18, 2023
Bench Composition: Justice KM Joseph, Justice Ajay Rastogi, Justice Aniruddha Bose, Justice Hrishikesh Roy and Justice CT Ravikumar
The Supreme Court upheld the constitutional validity of the State amendments made to the central law Prevention of Cruelty to Animals Act by the States of Tamil Nadu, Karnataka and Maharashtra to allow the conduct of animal sports like Jalikattu, Kambala and bull-cart racing in these respective States. These amendments were passed by the States after the Supreme Court in 2014 banned Jallikattu and similar activities in the case Animal Welfare Board of India v. A. Nagaraja And Ors. The Constitution Bench observed that these laws cannot be construed as "colourable legislations" and that the State legislature had the legislative power to make these amendments as per Entry 17 to List III of the Seventh Schedule.
Reports about this judgment can be found here.
14. Rules Of Game Being Changed On Appointment
Case Title: Tej Prakash Pathak And Ors. v. Rajasthan High Court And Ors
Arguments Commenced: July 12, 2023
Judgement Reserved: July 19, 2023
Judgement Pronounced: N/A
Bench Composition: Chief Justice DY Chandrachud, Justice Hrishikesh Roy, Justice PS Narasimha, Justice Pankaj Mithal and Justice Manoj Misra
This batch of petitions concerns the issue of whether the "rules of the game" can be changed after the selection process for posts has begun. Various cases pertaining to the selection of District Judges in different states as well as other staff of High Courts including translators etc were heard by the bench. Notably, many matters were de-tagged from the main petition on the ground that the facts and circumstances in the cases were not connected to the constitutional question that the 5-Judge Bench was tasked with. In some other cases, such as the one pertaining to the Kerala State Higher Judicial Services Special Rules, 1961, the Supreme Court passed orders without addressing the referred issue of whether the "rules of the game" can be changed midstream as the cases were capable of being decided independently.
15. Parliamentarian's Immunity In Bribery Cases
Case Title: Sita Soren v Union of India
Arguments Commenced: October 4, 2023
Judgement Reserved: October 5, 2023
Judgement Pronounced: N/A
Bench Composition: CJI DY Chandrachud, Justice AS Bopanna, Justice MM Sundresh, Justice PS Narasimha, Justice JB Pardiwala, Justice Sanjay Kumar, and Justice Manoj Misra
This matter concerns the scope of a legislator's immunity in cases of bribery for a speech or a vote in Parliament or a legislative assembly under Article 194(2) of the Constitution. In PV Narasimha Rao v State, a five-judge bench in a 3:2 majority—held that legislators are immune to criminal prosecution for any speech or vote. The judgement had added that the immunity would only be extended if the legislators carried out the act that they had taken the bribe for. In other words, if a legislator took a bribe to vote for a particular candidate but later decided to not go ahead with the same and voted for someone else, the immunity would not be extended to them. The petitioners argued against overruling PV Narasimha Rao on the ground that it did not pass muster of the tests laid down by the Supreme Court for overturning judicial precedents. The petitioners called for caution when embarking on this exercise, pointing to the limitations imposed by the court on itself, especially because the impugned ruling has held the field undisturbed for over a quarter of a century. Per contra, the respondents told the bench that no responsible government or public authority could take the stand that anything that is clearly proscribed by a statute, would have a refuge under Articles 105(2) and 194(2). Judgment was reserved on October 5.
16. Marriage Equality
Case Title: Supriyo v. Union of India
Arguments Commenced: April 18, 2023
Judgement Reserved: May 11, 2023
Judgement Pronounced: October 17, 2023
Bench Composition: CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat, Justice PS Narasimha, Justice Hima Kohli
The Supreme Court refused to grant legal recognition for queer marriages in India saying that it is a matter for the legislature to decide. The Court unanimously held that that queer couples have a right to cohabit without any threat of violence, coercion of interference; but refrained from passing any directions to formally recognize such relationships as marriages. All five judges agreed that transgender persons in heterosexual relationships have the right to marry under the existing legal framework. In a 3:2 majority, the bench held that same-sex couples did not have the right to form civil unions, and that they could not adopt.
Reports about this judgment can be found here.
17. Group of Companies Doctrine
Case Title: Cox and Kings Limited v SAP India Private Limited
Arguments Commenced: March 22, 2023
Judgement Reserved: April 12, 2023
Judgement Pronounced: December 6, 2023
Bench Composition: Chief Justice of India DY Chandrachud, Justice Hrishikesh Roy, Justice PS Narasimha, Justice JB Pardiwala and Justice Manoj Misra
The Supreme Court held that an arbitration agreement can bind non-signatories as per the "group of companies" doctrine. "The 'group of companies' doctrine must be retained in the Indian arbitration jurisprudence considering its utility in determining the intention of the parties in the context of complex transactions involving multiple parties and multiple agreements," the Court observed. The Court held that it is not necessary that only persons who are signatories to the arbitration agreement will be bound by the arbitration agreement. Requirement of a written arbitration agreement does not mean that non-signatories will not be bound by it, provided there is a defined legal relationship between the signatories and the non-signatories and that the parties intended to be bound by it by the act of conduct.
Reports about this judgment can be found here.
18. Abrogation of Article 370
Case Title: In Re: Article 370 of the Constitution
Arguments Commenced: August 2, 2023
Judgement Reserved: September 5, 2023
Judgement Pronounced: December 11, 2023
Bench Composition: Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice BR Gavai, and Justice Surya Kant
The Supreme Court upheld the validity of the Union Government's 2019 decision to repeal the special status of Jammu and Kashmir (J&K) under Article 370 of the Constitution. The Court held that the State of J&K had no internal sovereignty and the concurrence of the State Government was not required to apply the Indian Constitution to the State of J&K. It was held that Article 370 was a temporary provision. Owing to the submission of the Solicitor General of India that the Union will restore the statehood of J&K as soon as possible, the Court did not adjudicate upon the validity of the reorganisation of J&K into Union Territory (UT). However, the carving out of Ladakh as UT was upheld. The Court also issued a direction to the Election Commission of India to take steps to hold elections to the J&K Legislative Assembly by September 30, 2024. In his judgement, Justice SK Kaul recommended the setting up of an impartial "Truth and Reconciliation Committee" to investigate and report on the violations of human rights both by the State and non-state actors at least since 1980s and recommend measures for reconciliation.
Reports about this judgment can be found here.
19. Arbitration clauses in unstamped agreements are enforceable : 7 Judge Bench
Case Title: In Re Interplay Between Arbitration Agreements Under The Arbitration And Conciliation Act 1996 And The Indian Stamp Act 1899 Curative Pet(C) No. 44/2023 In R.P.(C) No. 704/2021 In C.A. No. 1599/2020
Citation : 2023 LiveLaw (SC) 1049
Bench : Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice B R Gavai, Justice Surya Kant, Justice JB Pardiwala, and Justice Manoj Misra
A seven-judge bench of the Supreme Court on December 13 ruled that arbitration clauses in unstamped or inadequately stamped agreements are enforceable. Insufficiency of stamping does not make the agreement void or unenforceable but makes it inadmissible in evidence. However, it is a curable defect as per the Indian Stamp Act, the Court pointed out.
The Court overruled the judgment rendered by a 5-judge bench in April this year in M/s. N.N. Global Mercantile Pvt. Ltd. v. M/s. Indo Unique Flame Ltd. And Ors which had by a 3:2 majority held that unstamped arbitration agreements are not enforceable.
Reports about this judgment can be found here.
20. Assam's National Register of Citizens
Case Title: In re: Section 6A of the Citizenship Act, 1955
Arguments Commenced: December 5, 2023
Judgement Reserved: December 12, 2023
Judgement Pronounced: N/A
Bench Composition: CJI DY Chandrachud, Justices AS Bopanna, MM Sundresh, JB Pardiwala, and Manoj Mishra
The batch of petitions challenge Section 6A of the Citizenship Act 1955, the statutory provision giving effect to the Assam Accord. The provision, inter alia, allows foreign migrants, who came to Assam after the 1st January, 1966 but before the 25th March, 1971, to seek Indian citizenship. Certain indigenous groups of Assam have challenged this provision, contending that it legalised illegal infiltration of foreign migrants from Bangladesh.
The petitioners challenged this provision stating that it operated in a blanket manner, without any specific determination process and stated that this lack of scrutiny and time limit could encourage false claims and attract people to remain in Assam. Per contra, the respondents asserted that the provision had outlived its utility and was made by the Parliament based on considerations foreign policy and maintenance of international relations. Adding that the Parliament was empowered to make laws on citizenship, which was a matter of legislative policy, it was also stated that migration of populations to India had a deep historical context and could not be precisely mapped.
21. Electoral bonds
On November 2, a Constitution bench of the Supreme Court reserved judgment on a batch of a petitions challenging the electoral bonds scheme.A Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Sanjiv Khanna, BR Gavai, JB Pardiwala and Manoj Misra heard the matter for three days.
22. Automatic Stay vacation
The Supreme Court on December 13 reserved its judgement in the reference against the 2018 judgment in Asian Resurfacing of Road Agency P. Ltd. Director V. Central Bureau of Investigation as per which interim orders of stay granted by High Courts and other courts in civil and criminal trials will automatically expire after a period of six months unless the orders are specifically extended. The bench comprised Chief Justice of India DY Chandrachud, Justice Abhay S Oka, Justice JB Pardiwala, Justice Pankaj Mithal and Justice Manoj Misra.