Monthly Review: February 2024

The Supreme Court, from CJI U.U. Lalit’s time, and especially in CJI D.Y. Chandrachud’s tenure is no stranger to Constitution Benches. But February 2024 was unlike anything we’ve seen in recent times. The Court heard not one but three Constitution Bench cases—one five-judge, one seven-judge and one nine-judge Bench case. 

On 15 February, a five-judge Bench held that the Union’s 2018 Electoral Bond Scheme was unconstitutional. Another five-judge bench held that stay orders in civil and criminal proceedings do not expire automatically after a period of time, and continue to stay in force until the case is decided. 

Two seven-judge benches reserved judgement in a case concerning the minority status of the Aligarh Muslim University, and in an affirmative action matter. In the latter part of the month, a nine-judge bench assembled to hear the nature of royalty paid by mine leaseholders. This case had been pending at the top Court since 1999!

Supreme Court Observer’s monthly review of February recaps all these developments. 

Voter-1, Secret Corporate Donor-0 

Five-judge Constitutional Bench | Judgement pronounced : Electoral Bonds Scheme 

On 15 February 2024, in Association for Democratic Reforms v Union of India a five-judge bench held that the Electoral Bonds Scheme was unconstitutional for violating the voters right to information under Article 19(1)(a) of the Constitution. Chief Justice D.Y. Chandrachud wrote the majority opinion, with Justice Sanjiv Khanna authoring the concurring opinion. 

The judgement held that the scheme failed to justify restricting the right to information of a voter with its objectives of protecting the right to privacy of a donor. Further, the Court held that the scheme facilitates a quid pro quo arrangement between corporate donors and political parties. The “selective anonymity” under the scheme will only keep voters in the dark. 

The Bench directed the State Bank of India (SBI) to cease further sales of bonds. It also directed the SBI to provide all details of the bonds to the Election Commission of India (ECI) by 6 March 2024. 

Most recommended stops from all that we have covered on the case: judgement summary and matrix. 

Application of Judicial Mind a must, Supreme Court said 

Five-judge Constitutional Bench | Judgement pronounced : Validity of Automatic Vacation of Stay Orders

On 29 February 2024, a five-judge Constitution Bench held that stay orders granted in pending cases do not automatically lapse after six months from the date of order. The Bench was considering the correctness of Asian Resurfacing of Road Agency Pvt Ltd and Another v Central Bureau of Investigation (2018) which held that a stay order in pending civil and criminal cases is vacated after six months. The Constitution Bench in High Court Bar Association Allahabad v The State of Uttar Pradesh (2024) held that stay orders cannot be time-bound and will be in force until the case is decided. A stay order will only be time-bound if it is expressly prescribed. The Bench also refused to use its discretionary power under Article 142 of the Constitution to vacate specific stay orders and replace it by a blanket order.

“Established, administered” | Reserved in February

Seven-judge Constitution Bench | Judgement Reserved: AMU Minority Status case 

On 1 February 2024, a seven-judge bench of the Supreme Court reserved judgement in the AMU Minority status case after eight days of arguments. The Bench was determining the correctness of Azeez Basha v Union of India (1967) which held that AMU was neither established nor administered by the Muslim community. The Union argued that AMU was established by the British imperial government under the Aligarh Muslim University Act, 1920. Experts argue that the history of AMU shows that the Union’s argument is “patently incorrect.”

Reservations within reservations

Seven-judge Constitution Bench | Judgement Reserved: Validity of Sub-Classification

On 09 February 2024, a seven-judge bench Constitution Bench in State of Punjab v Davinder Singh, reserved judgement in a case determining the state governments power to make sub-classifications within the Scheduled Caste and Scheduled Tribe categories. 

Over three days of arguments, the parties argued on caste structures, class dynamics, the purpose of reservations and the idea of “backwardness within backwardness.” 

Taxing mines and minerals: The Union-states’ turf war

Nine-judge Constitution Bench | Hearings begin: Nature of Royalty paid by the Mine Leaseholders Case

On 27 February 2024, a nine-judge bench assembled after four years since the Sabarimala Case. The Bench was to determine whether royalty paid by mine leaseholders under Section 9 of the Mines and Minerals (Development and Regulation) Act, 1957 is a form of tax. The royalty is fixed by the Union government. Under the Constitution, state governments are entitled to collect tax under Entry 50 of the State List. 

The heart of the issue: Who can tax mines and minerals? Union or state governments? 

In February, appellants argued that state governments are entitled to collect tax as well as royalty. Senior Advocate Harish Salve, appearing for the respondents, argued that royalty is “akin to tax.” Charging tax with royalty, will indirectly inflate the royalty amount. 

Away from the constitutional benches Parties withdraw challenges against the UAPA 

On 15 February 2024, petitioners charged under Section 13 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) involved in the Tripura violence withdrew their petition from the Supreme Court. The petitioners were challenging Section 13, which punishes individuals who commit or aid the commitment of any ‘unlawful activity’ as defined under Section 2(1)(o) of the UAPA. 

The petitioners requested the petitions to be transferred to the High Court of Tripura. The top court directed the Tripura State Police to not take any coercive steps against the petitioners. 

Activist Umar Khalid who had filed a bail petition under the UAPA also withdrew his petition. 

Rest in Power, Fali

On 21 February, Senior Advocate Fali Sam Nariman passed away at the age of 95. Nariman was considered as the ‘Bhishma Pitamah’ of Indian Judiciary and one of the finest Constitutional Law advocates. Reportedly, a day before his passing, Nariman was working till late on a Constitution Bench matter. Our tribute to Nariman says that he “died with his boots on.” 

Do not miss an excerpt published by the Supreme Court Observer from his autobiography, “Before Memory Fades.” 

On the Supreme Court Observer website:

SCO published the January 2024 pendency report which claimed that there were 80,221 pending cases in the Court’s docket. Despite having its seven-judges occupied in a constitution bench matter, the Court maintained a steady disposal rate which is the lowest among the last five years. The Court managed to dispose of 5,453 cases. 

Meanwhile our research showed that in 2024, both institution and disposal were the highest in five years, surpassing the numbers in 2023 when 4661 cases were filed and 5058 cases were disposed of. 

In another Court Data piece, it was shown that seven out of 25 High Courts across India, lack representation in the Supreme Court. Regional representation is a key consideration of the collegium while appointing judges to the Supreme Court. Often, the collegium deviates from seniority to maintain the regional diversity on the bench.