2023 Summer Session Review: Notable Hearings

During the Summer Session (March 13th – May 20th*), the Supreme Court delivered six Constitution Bench Judgements (discussed here). It also completed hearings and reserved Judgement in other key cases ranging from marriage rights for the queer community to deciding the scope of arbitration. However, other important cases like the challenge to WhatsApp’s privacy policy and the investigation into the Adani-Hindenburg controversy continued to suffer delays.  

Judgements Reserved

Queer Marriage Equality

On April 18th, a 5-Judge Bench led by Chief Justice Chandrachud started hearing arguments on the Plea for Marriage Equality (same-sex marriage). The petitions were centred around the constitutionality of Section 4(c) of the Special Marriage Act, 1954 (SMA). The provision only allows a biological man and a biological woman to marry under the SMA.   

Petitioners’ arguments ranged from the LGBTQIA+ community’s fundamental right to marry,  constitutionality of the SMA, ancillary rights of queer persons, and the welfare of children. The Union argued that the Supreme Court is not the component authority to recognise the LGBTQIA+ community’s right to marry. 

After 10 days of hearings and nearly 30 hours of arguments, the SC reserved judgement in the case. 

Tenure Extensions for CBI/ED Directors

On May 8th, 2023, an SC bench comprising Justices B.R. Gavai, Vikram Nath, and Sanjay Karol reserved its judgement in the CBI/ED Tenure Extension case. 

The petitioners in the case challenged the constitutionality of the Central Vigilance Commission (Amendment) Ordinance, 2021 and the Delhi Special Police Establishment (Amendment) Ordinance, 2021, which allows the Union to extend the tenure of Central Board of Investigation (CBI) and Enforcement Directorate (ED) directors. Originally, the tenure of Directors was supposed to be ‘not less than 2 years’. The Ordinances, later enacted in 2021, allowed  3 one-year extensions for CBI and ED directors.

The extension of ED Director Mr. Sanjay Kumar Mishra’s tenure was at the heart of this case. The Ordinances were promulgated just two days prior to Mr. Mishra’s retirement . Petitioners argued that the Ordinances and Mr. Mishra’s tenure extension contradicted the SC’s decision in Common Cause v. Union of India (2021). Further, they contended that the ordinances will interfere with the independence of the CBI and ED which will affect the principles of fair investigation and fair trial. 

Group of Companies Doctrine

Across five days of hearings, a CJI D.Y. Chandrachud-led Constitution Bench heard a case that will shape the scope of arbitration law in India. The Bench was considering the validity of the ‘Group of Companies’ doctrine. 

The Bench will decide if non-signatory companies can be included in arbitration proceedings if they are closely related to signatories to an arbitration agreement. The decision to accept or reject this ‘Group of Companies’ doctrine will have far-reaching ramifications on arbitration law, which often involves corporate dispute resolution across international borders. 

Hearings

Bilkis Bano Convicts Remission

From April 18th, 2023 an SC Bench comprising Justices K.M. Joseph and B.V. Nagarathna started hearing petitions challenging the Early Release of Bilkis Bano Gangrape Convicts.  

However, the case has been plagued with several procedural issues including delays in written and oral submissions, accusations regarding improper service of notice and unsuccessful attempts to track down one of the respondents. On May 9th, the SC directed that a Public Notice should be served in a Gujarati newspaper to notify the missing respondent. 

Justice K.M. Joseph, who is retiring on June 17th, criticised the delay tactics adopted by the respondents stating: “We can clearly see the pattern. Even after we put this matter after a week, someone will come and will say either they have not been served or they will ask for more time to file a reply,”. Additionally, he observed that the tactics were adopted to put the matter in front of a new bench in light of his retirement. He said: “It’s obvious that they don’t want me to hear the matter. It’s very, very clear…we issued the notice on the first day this matter came to us. That’s the best and the maximum we could do. But is this the way the matter can proceed?” 

The case will be heard by a new Bench after the SC’s summer vacation. 

Challenge to WhatsApp’s Privacy Policy

The challenge to WhatsApp’s privacy policy, which petitioners claim violates the privacy rights of Indians, made no progress at the SC. The Union government informed the Justice K.M Joseph-led Constitution Bench that Parliament would address the concerns raised in the Digital Data Protection Bill, 2022 (the Bill), during its Monsoon Session. 

Previously, the Union had assured the Court that Parliament would discuss the Bill in March 2023. The Union’s promises to create a robust data protection law in India have been dormant since 2017.  With Justice K.M. Joseph’s upcoming retirement on June 17th, it appears a new Bench will have to be constituted to hear the case.  

Adani-Hindenburg Controversy

On January 25th, 2023, U.S.-based short-seller Hindenburg Research accused the Adani group of companies of committing the ‘largest con in corporate history’ in a detailed report. Due to the ensuing controversy, Adani group stocks plummeted leading to serious concerns about regulatory failure in the securities market in India. A batch of petitions was filed at the SC, seeking a court-monitored investigation into the allegations. On March 2nd, the SC formed a 6-member committee led by Justice (Retd.) A.M. Sapre to look into the matter along with SEBI. Both bodies were granted two months to submit their reports. 

On May 19th, the SC committee reported that they did not have sufficient evidence to conclude that India’s regulatory mechanisms had failed. SEBI, on the other hand, sought more time to conclude its investigation. SEBI is now expected to submit its findings to the Court on August 14th.

*The SC does not officially follow a session calendar. Nevertheless, for the sake of analysing performance, SCO has divided the annual calendar into 4 seasonal sessions. The Summer Session begins at the end of the SC’s Holi break and concludes at the onset of the summer break.