Understanding the Constitutional Bench Judgments of 2023

2023 saw many Constitutional Bench judgments, with more hits than misses! But the point remains: how good were the good judgments, and what impact would the bad ones leave?

The year started with a bench of 5 judges determining whether the demonetisation of 2016 was flawed and should be struck down. We recently saw a bench of 5 judges determining the constitutionality of the Presidential Orders, which resulted in the abrogation of Article 370 of the Constitution (the Jammu and Kashmir issue). 

To understand whether these judgments were a hit or a miss, we'd first have to learn about them! Following are some of the most important decisions delivered by five-judge bench this year:

However, before moving any further, we would like you to check our updated free PDF comprising 25 Legal News of 2023: Wrap up the entire year Here!

Constitutional Judgments of 2023

List of Cases 

1. Was the move to demonetise ₹. 500 and ₹. 1000 banknotes legal?

Vivek Narayan Sharma v. Union of India

With a majority of 4:1, the Supreme Court upheld the decision of the Union Government to demonetise the 500 and 1000 banknotes six years after the move. However, Justice Nagarathna disagreed with the majority and held that the decision to demonetise the currency was not carried out lawfully. The bench analysed various issues, from the meaning of the word "any" in "any series of notes" used in Section 26 of the RBI Act to excessive delegation and the doctrine of proportionality, to name a few.

Although Justice Nagrathna gave a dissenting opinion, she clarified that since the demonetisation decision had already been acted upon, the decision would have a prospective effect. She also acknowledged that while the move to demonetise was well-intended, the process was unlawful on "a purely legalistic analysis".

Even if the judgment was delivered way after the move of demonetisation, the opinion and reasoning of the Judges in this case, precisely that of Justice Nagarathna, will impact future decisions, if any, on similar issues.

2. Can the Bar Council of India conduct the All India Bar Examination (AIBE)?

Bar Council of India v. Bonnie FOI Law College

A five-judge bench of SC upheld the power of the Bar Council of India (BCI) to conduct the All India Bar Examinations (AIBE). This exam tests law graduates' basic understanding of the law to be eligible for practising in Indian Courts. The Bench observed that the Advocates Act, 1961 or the legal, educational bodies do not prohibit the Bar Council of India from conducting AIBE. Furthermore, the Court gave suggestions to BCI on AIBE on matters like timely conduct, eligibility, attempts to pass the exam, etc. This decision clarified that the Bar Council of India is the apex body of advocates, and the responsibility to maintain the standards of this profession also falls under its jurisdiction. 

3. Can SC grant divorce using Article 142 of the Constitution?

Shilpa Shailesh v. Varun Sreenivasan

The Supreme Court has extensive powers under Article 142 of the Constitution, which states that it can decide on any matter before it to do 'complete justice'. Using this power, the SC in May 2023 held that it has the power to grant divorce based on irretrievable breakdown of marriage, which is not a ground for divorce under the Hindu Marriage Act, 1955 (HMA). The Court also held that if it is satisfied that the marriage is irretrievably broken, then the court can also waive off the waiting period of 6-18 months provided under Section 13-B of the HMA, which the parties have to go through before filing a second petition in a divorce proceeding. This judgment will set a precedent for the courts to grant divorce based on grounds not yet provided in the Act. 

4. How legal is the practice of Jallikattu and other similar sports?

Animal Welfare Board v. Union of India

Another bench of SC decided in 2023 whether the sport of Jallikkattu (practised in Tamil Nadu), Kambala (practised in Karnataka) and Bullock-cart racing (practised in Maharashtra) was against the provisions of the Constitution of India and the Prevention of Cruelty to Animals Act, 1960 (PCA Act). The Court heard the challenge to State Amendments made in the States mentioned above to the PCA Act allowing the sports, going against the ratio of SC (Animal Welfare Board v. A. Nagraja, 2014). The five-judge bench, while upholding the amendments, observed that many changes had been made to reduce the suffering of the animals. The Court also discussed doctrines of pith and substance and colourable legislation in light of the law-making powers of the legislatures. 

5. Who should appoint the Chief Election Commissioner and the Election Commissioners?

Anoop Baranwal v. Union of India

Making it one of the most important judgments of the SC this year, the five-judge bench, in this case, set up a Committee for the appointment of the Chief Election Commissioner (CEC) and other Election Commissioners (ECs). The petitioner contended that the appointment process of CEC and ECs does not ensure free and fair elections, which is one of the essential features of the Constitution. According to Article 324 of the Constitution, the appointments for these positions are made by the President of India unless the Parliament makes a law on it.

Since the Parliament did not make a law for the appointments, the SC constituted a Committee comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India to appoint CEC and ECs. The bench clarified that this Committee would function till the Parliament makes a law on it. Not so surprisingly, in the Monsoon Session of the Parliament, the Parliament introduced the CEC and Other ECs (Appointment, Conditions of Service And Term of Office) Bill, 2023, changing the Committee. The Bill, which has yet to be passed, replaces the Chief Justice of India with a Cabinet Minister in the appointment-making process.

6. Should public officials have additional restrictions on their freedom of speech?

Kaushal Kishore v. State of Uttar Pradesh

How often do we read/watch the news that some minister or politician made hurtful or controversial remarks and think they shouldn't be allowed to speak in public? Dealing with a similar question, the SC, in this case, was analysing whether there should be additional restrictions on public officials' freedom of speech and expression, among other issues relating to the enforceability of fundamental rights. The Court held that the limits provided under Article 19 (2) are exhaustive, and there is no need for additional restrictions. The Court also dealt with the principle of collective responsibility and Constitutional tort, considering that a politician or a minister not only represents their personal views but might also represent the views of the Government they belong to.

Although Justice Nagarathna, a part of the five-judge bench, agreed with the majority opinion, she gave her perspective on issues like the enforceability of fundamental rights against private persons and the consequences of irresponsible statements made by public officials.

7. What did the SC hold about the never-ending Maharashtra political crisis?

Subhash Desai v. Governor of Maharashtra

In a split between two factions of a political party, the leader of one faction, the then Chief Minister of Maharashtra, resigned from the position just before he was called for a Floor Test. Whereas, the leader of another faction became the new Chief Minister. This is the shortest version of the long-standing battle of Maharashtra politics. Both factions reached the SC with their own set of issues, and a five-judge bench dealt with all of them. Among other issues, the SC held that the power to decide on matters of disqualification of MLAs vests with the Speaker only and that the Court can only review such decision. 
Read the detailed judgment here!

8. The Lt. Governor or the CM: Who controls NCT Delhi's administrative services?

Government of NCT Delhi v Union of India

In another landmark judgment of the SC, a five-judge bench held that power over administrative services (relating to appointment, transfers and other matters of civil servants) vests with the Government of NCT Delhi (GNCTD), not with the Lt. Governor. The bench further observed that although Delhi is a Union Territory, it has a special status ('sui generis'), and GNCTD represents the democratic form of government; all the powers should vest with GNCTD except for the ones expressly excluded by the Constitution, which is land, police and public order. The point to note here is that soon after the judgment, the Central Government passed the GNCTD (Amendment) Bill, 2023 and now, in case of any dispute on matters of services, the Lt. Governor has the power to make the final decision.

9. Do same-sex couples have the right to marry?

Supriyo v. Union of India

Making it one of the most talked-about judgments of the year, Supriyo v. Union of India dealt with the right to marriage. The issues mostly revolved around the rights of persons belonging to the LGBTQIA+ Community to marry and the exclusion of the same in Acts like the Special Marriage Act and the Foreign Marriage Act. The Court unanimously held that there is no fundamental right to marry and that transgender persons in heterosexual relationships can marry under the existing laws. Meanwhile, on the issue of the right to civil union and the right to adopt by same-sex couples, the Court, with a 3:2 majority, held that the legislature is the correct authority to decide whether same-sex couples should have the right to civil union or the right to adopt. The two dissenting opinions were given by CJI DY Chandrachud and Justice Kaul.

10. Special Status of Jammu and Kashmir

In Re: Abrogation of Article 370

In 2019, the Union Government removed the Special Status of Jammu and Kashmir. Through Article 370 of the Constitution, Jammu and Kashmir (J&K) enjoyed a special status, and the Parliament had limited power to legislate. Article 370 (3) stated that the special status of J&K can be amended or removed by the President after the recommendation of the Constituent Assembly of the State. In 2019, through two Presidential Orders, the special status of J&K was removed, which was challenged in the instant case. On 11 December 2023, a five-judge bench of the SC upheld the removal of the special status of J&K. The court unanimously held that it was a temporary provision. 

On the validity of Presidential Orders, the bench partially upheld Presidential Order 272, through which the Union Government used Article 367 to amend Article 370. The Bench upheld Presidential Order 273, through which the provisions of Article 370 were repealed. Further, the Bench did not decide on the validity of reorganising J&K into two Union Territories, that of J&K and Ladakh. The reasoning for this decision was the Union's assurance that J&K would soon get the status of a State. This SC decision settled whether J&K should retain its special status or be wholly integrated into India.

If you want to read the Top 10 Landmark Cases of the Constitution and Top 10 Important Judgments for CLAT PG 2024, then click on the link.

Conclusion

While there were more judgments delivered by five-judge benches, these were some of the most important ones, and now it's your turn to analyse what, according to you, were the hits and misses of the Supreme Court this year!