February Monthly Review: New Judges, Notable Hearings, and Technological Developments

An eventful February 2023 saw the Supreme Court reach its full sanctioned strength, deliver two major judgements, and implement significant technology-aided transparency measures.  The SC also made significant progress in the Maharashtra MLA Disqualification case and placed the challenges to WhatsApp’s privacy policy on hold.

SC Begins Functioning at Full Strength after 7 New Judge Appointments

Following the appointment of seven new judges, the SC began functioning at its full sanctioned strength for the first time since 2019. Five judges were sworn in on February 6th and two more on February 13th, bringing the SC to its full strength of 34 sitting judges. 

These appointments come on the heels of the SC’s strong criticism of the Union over delays in implementing the SC Collegium’s recommendations despite several reiterations. 

However, the SC’s full working strength may not be enough to tackle its burgeoning caseload. SCO’s analysis of the Court’s working strength and case disposals found no discernible relationship between the two.

The SC is set to see eight more retirements this year. It remains to be seen if the Union and the Collegium will set aside their differences to effectively fill these positions. 

Judgements Passed: BCI’s Power to Conduct Bar Exams and Religious Leader’s Power to Excommunicate Members

A 5-Judge Constitution Bench led by Justice S.K. Kaul upheld the Bar Council of India’s (BCI) power to conduct the All India Bar Examination (AIBE) on February 10th. The Bench reiterated the importance of the BCI’s role in ensuring that only persons well-versed with the law qualify as advocates. The Bench further highlighted the BCI’s obligation to the legal profession by asking them to address the issue of different State Bar Councils prescribing different fees for enrolment.

On the same day, the Bench also referred the questions on the Dawoodi Bohra community leader’s power to excommunicate members to the 9-Judge Sabarimala Review Bench. 

Disqualification of Shiv Sena MLAs: Hearings to Spill Over to March

A Constitution Bench led by CJI D.Y. Chandrachud began hearing substantial arguments in the case concerning the Shiv Sena rift in Maharashtra on February 21st. Before arguments could begin, the Bench first heard the petitioner’s request to refer the case to a larger 7-Judge Bench. The petitioners claimed the 7-Judge Bench must reconsider SC’s 2016 Nabam Rebia decision which decided the extent of the Speaker’s powers in cases of political defection.

However, after four days of hearings, on February 17th, the Bench held that it would not refer the matter to a 7-Judge Bench right away. The CJI stated that a decision on reference could not be made without properly considering how Nabam Rebia interacts with the facts of this case. Therefore, the matter would be heard on substantial merits first. 

On February 21st, Sr. Adv. Kapil Sibal, representing the Thackery faction, began the proceedings by providing reasons on why the Shinde faction must be disqualified. He claimed that the Shinde-faction did not represent the ‘real’ Shiv Sena and that the Governor was wrong to ask Mr. Thackeray to prove his majority in the House by calling for a trust vote.  

On February 28th, 2023, Sr. Adv. Neeraj Kishan Kaul provided counter-arguments on behalf of the Shinde-faction. Mr. Kaul argued that the Shinde faction could not have defected from the Shiv Sena since they claimed to be the actual Shiv Sena. He also stated that they would have formed the government despite the Thackeray faction’s objections.

WhatsApp’s Privacy Policy: SC Decides to Hear the Matter In April

A 5-Judge Constitution Bench led by Justice K.M Joseph heard the petition against WhatsApp’s Privacy Policy in India on February 1st.  On Solicitor General Tushar Mehta (for the Union) and Sr. Adv. Kapil Sibal’s (for WhatsApp) insistence, the Bench decided to continue hearing the matter on April 11th, after Parliament tables the Digital Data Protection Bill, 2022. Sr. Adv. Shyam Divan, arguing against the privacy policy objected.  He argued that the matter must be heard immediately as the timeline for Parliament to enact the Bill was indefinite.

In the meantime, the Bench directed WhatsApp to inform users that they can continue using the app even if they do not accept the latest policy. 

Judicial Vacancies in Lower Courts: SC Begins Monitoring the Status in Different States

On February 9th, the Bench comprising CJI D.Y. Chandrachud and Justice P.S. Narasimha started receiving updates about the status of lower judiciary judge appointments in various States, starting with Gujarat. The Bench delivered an Order directing the State of Gujarat to process the pending proposals quickly and submit a certificate of compliance by April 30th, 2023. Other States are expected to update the SC on the status of the judicial appointments in March. 

BBC Documentary Ban, Fundamental Duties, and Uniform Marriage Age

On February 3rd, 2023, a 2-Judge Bench comprising Justices M.M. Sundresh and Sanjiv Khanna heard a petition filed against the Union Government’s Ban on the BBC documentary titled ‘India: The Modi Question’. The case is expected to be heard again in April 2023. The SC will decide if the ban violates the right to freedom of speech and expression.

On February 14th, Justices S.K Kaul and M.M. Sundresh heard a petition seeking to enforce Fundamental Duties. Fundamental Duties are a list of 11 unenforceable constitutional obligations that citizens are expected to perform. The petition stresses the need to strike a balance between civil rights and civil obligations. The Bench is expected to continue hearing the case in March. 

A CJI D.Y. Chandrachud-led Bench, on February 20th, dismissed a petition filed by former BJP spokesperson and advocate Ashwini Kumar Upadhyay seeking the same minimum age (21 years) for marriage for men and women. He claimed that the laws prescribing the minimum age for marriage were arbitrary and discriminated against women. The Bench refused to entertain the petition as the matter falls under the law-making power of the Parliament and chastised the serial litigant. 

Utilising Technology to Enhance the SC’s Accessibility

On February 21st, CJI Chandrachud made a novel announcement. All Constitution Bench hearings would be transcribed live with the aid of Artificial Intelligence (AI). This initiative is expected to accurately document arguments and aid in promoting accountability and transparency of proceedings. 

Lending his support to the initiative, Justice P.S. Narasimha said that this will help the SC ‘become truly a court of record’. The transcriptions project follows other AI-aided initiatives such as SUPACE (2021) and the judgement translations project (2019). 

India is not alone in embracing technology to develop a more efficient legal system. Other countries have also introduced innovative ways of using AI within their Courts. SCO sheds light on some of these worldwide developments here.