Top 10 Judgements of the Supreme Court in 2023

Transcript:

Sai Spandana: Hello everyone and welcome to the Supreme Court Observer! I’m Sai Spandana

Gauri Kashyap: and I’m Gauri Kashyap

Sai Spandana: and you’re watching SCO’s list of the Top 10 Judgements of 2023. 

As you can imagine, curating a list of 10 key judgements of the apex court is not an easy task. This is true for 2023 especially, where the Court disposed of 52,220 cases. 

It was also the year of the most number of Constitution Bench decisions in recent history. The cases touched upon weighty issues like civil rights, political rights, personal liberty, freedom of speech, distribution of governance powers and the nature of federalism. Several decisions were viewed as the barometer for the health of democracy and the independence of the judiciary. 

Gauri Kashyap: In some cases, the Court acted quickly and decisively, such as when it issued a stay in the defamation matter in Rahul Gandhi’s case, enabling him to return to Parliament. The Court also granted bail to activist Teesta Setalvad in an evidence forgery case, while calling the order of the Gujarat High Court “perverse.” It also granted long-awaited bail relief to activists arrested in the Bhima Koregaon case. But, on certain other matters, it dragged its feet—activist Umar Khalid is still in jail without trial, and there’s no sign of the Pegasus spyware case being taken up for hearing. 

So perhaps our list is bound to be subjective, but we’ve tried to cover cases that have shifted the needle on some aspect of public law—either the law was changed or its interpretation. Make sure to comment below and let us know what you think should have made the list! 

Now, for SCO’s list of top 10 judgements of 2023. 

Sai Spandana: On 11 December, a Constitution Bench led by Chief Justice D.Y. Chandrachud upheld the Central Government’s revocation of the special status of the erstwhile state of Jammu and Kashmir (J&K).

The Court agreed with the Union that Article 370 was a temporary provision as it was placed under Part XXI of the Constitution. It also upheld the presidential orders that abrogated the provision, ruling that it was not a mala fide exercise of power. However, part of the presidential order that amended Article 367 was held to be constitutionally invalid. The Court refused to comment on the validity of the reorganisation of the state on the ground that the Solicitor General had submitted that statehood would be restored to J&K in due time.

You’ll remember our extensive coverage of the case with live tweets, detailed daily reports, videos, commentaries, matrixes, summaries and much more. We hope you’ve checked them out.

Gauri Kashyap: On 17 October, a Constitution Bench led by CJI D.Y. Chandrachud rejected a batch of petitions that sought the equal right to marry for sexual minorities. The five-judge Bench unanimously held that there is no fundamental right to marry under the Constitution of India. They held that marriage flowed from social customs and that the Court cannot recognise it as a right. Further, it could not place an obligation on lawmakers to codify an institution that the law itself did not create. 

4 judges held that the Special Marriage Act of 1954, cannot be held unconstitutional for excluding non-heterosexual couples from its fold. Justice S.K. Kaul was the sole dissenter, holding that the SMA’s initial purpose of interfaith marriage does not justify the exclusion of queer persons from its ambit. 

Three of the five judges were of the view that queer persons do not have the right to enter into a “civil union”. They found that it is not within the Court’s power to recognise the right to compel the Parliament to make a relevant law. CJI Chandrachud and Justice Kaul, in the minority, held that there was a right in fact to civil union. 

The Bench was unanimous in its view that transgender persons in heterosexual relationships have the right to marry under the existing legal framework. This is another case that SCO has tracked in detail. This includes our hearing reports, our judgement matrices, our argument matrices, and a lot more. Make sure to head to the website to read our coverage and expert commentary on this case.

Sai Spandana: You’ll remember the Shiv-Sena crisis in Maharashtra in 2022. A faction of the Shiv Sena led by current Chief Minister Eknath Shinde had rebelled against the then Chief Minister Uddhav Thackeray-led party. Upon disqualification notices issued through the Deputy Speaker, the rebel MLAs moved a no-confidence motion against the Deputy Speaker and the Thackeray government. 

Before a floor test ordered by the Governor was conducted, Thackeray resigned and Shinde became the Chief Minister. Thackeray challenged the Governor’s actions and the Shinde faction’s rebellion at the Supreme Court. 

On 11 May this year, the Court finally delivered its decision in the case. A five-judge Bench held that the Maharashtra Governor’s decision to order the floor test to gauge the support that Thackeray had was illegal. The reason was that the Governor had no objective material to do believe that Thackery had lost the confidence of the house. 

The larger question of whether a Speaker can decide disqualification petitions when a petition for his own disqualification lies pending was referred to a seven-judge bench. 

The conflict however has not come to an end yet because despite the Court’s judgement directing the Speaker to decide the disqualification petitions “within a reasonable (period of) time”, they are yet to be processed. 

Gauri Kashyap: On 11 May, the same day that the Shiv Sena judgement was delivered, a Constitution Bench led by CJI Chandrachud held that the Government of the National Capital of Delhi (NCTD)—and not the Lieutenant Governor (LG)—controls the capital’s civil servants and day-to-day administration.

The Bench unanimously held that the Delhi Legislative Assembly has the power to make laws extending to all subjects in the State List of the Seventh Schedule of the Constitution, except public order, police and land. This means that the legislative and executive power over ‘services’ such as the Indian Administrative Services, or joint cadre services shall lie with the Delhi government, and officers, though not recruited by it, would still serve under the state government.

The judgement upheld the principles of federalism in stating that Article 239AA must be interpreted to further the principle of representative democracy. 

A week after the judgement, on May 19, the President promulgated an ordinance, which put the powers over ‘services’ squarely back with the Union government. An amendment Act replacing the Ordinance was passed by the Parliament in August. The National Capital Territory of Delhi (Amendment) Act, 2023 restored the Delhi Legislative Assembly’s power to make laws with respect to ‘services’. The provision creating the National Capital Service Authority was retained.

Sai Spandana: On 21 March, a five-judge Constitution Bench led by Justice K.M. Joseph modified the process of appointing members to the Election Commission of India (ECI). The bench emphasised the importance of an independent Election Commission, and created a committee consisting of the Chief Justice of India, the Prime Minister and the Leader of the Opposition in the Lok Sabha. 

Though the duty to frame the law for the appointment of ECI members fell within the legislature’s domain, the Court took note of the inordinate delays and parliamentary inaction, while clarifying that its directions would hold till the time the Parliament makes its law.

Less than four months later however, on August 10, the Union government introduced the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023. The Bill proposed a “selection committee” which excludes the Chief Justice of India. Instead, the committee will comprise of a Union cabinet member of the Prime Minister’s choosing. The Lok Sabha approved the bill in December this year. 

Gauri Kashyap: In November 2021, the President passed two ordinances. This allowed the Union to grant extensions to the tenures of directors of Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED).

Petitioners claimed that such extensions would interfere with the independence of investigative agencies from the executive. They argued that the Union could then incentivise the heads of these agencies to take Union-friendly actions. 

In July 2023 the Court unanimously upheld the validity of these ordinances stating that the independence of the agencies would not be breached as there were sufficient safeguards that insulated them from the pressures of the executive.

Sai Spandana: On 18 May, a Constitution Bench led by Justice K.M. Joseph upheld the practice of bull-taming sports such as Jallikattu, and permitted the state’s amendments to the Prevention of Cruelty to Animals Act, 1960 (PCA Act). 

The Bench relied on the Tamil Nadu Government ‘s argument that Jallikattu was a key part of the state’s culture which had been practised for centuries. However, the Court refused to venture into the question of whether a cultural right existed in this case, stating that it was “an exercise that cannot be undertaken by the Judiciary.” The Bench also stated that the fundamental rights of animals do not have any precedent in Indian law.

Gauri Kashyap: On 24 January, a Constitution Bench streamlined the guidelines for withdrawal of treatment of terminally ill patients. The Court relaxed the procedure to get an  ‘Advanced Medical Directive’ which is a document containing end-of-life instructions to be used when a patient is no longer able to communicate their wishes.

The alteration in the guidelines was undertaken in response to the Supreme Court’s judgement in Common Cause v Union of India (2018) which held that the right to die with dignity is a fundamental right under Article 21. 

The Court tweaked a lot of stringent requirements. This included reducing the minimum years of experience required for the certifying doctor and the requirement of the Chief Medical Officer on the board. They also made way for expedited decision-making by the certifying boards “preferably” within 48 hours of the case being referred to it. 

Sai Spandana: On 1 May, a five-judge Constitution Bench led by Justice S.K. Kaul held that in the exercise of the Court’s inherent powers under Article 142, it can dissolve a marriage that has been irretrievably broken down. 

The Bench held that if the Court is “fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation,” it can exercise its powers to do “complete justice” to the parties involved. This decision the Court said, must be based on factors such as the duration of the period when the parties last cohabited, the nature of the allegations, attempts at settlements of disputes, other court orders and the duration of the couple’s separation.

With this decision, the Court departed from the procedures laid down in family law frameworks which do not recognise irretrievable breakdown of marriage as a ground for divorce.

Gauri Kashyap: 2 Judgements were delivered on this topic this year. On 25, a five-judge Constitution Bench in a 3:2 majority held that an unstamped or insufficiently stamped arbitration agreement was void and unenforceable. The decision however met with immediate criticism for creating practical difficulties in resolving urgent matters. In September, a five-judge Bench led by CJI D.Y. Chandrachud decided to reconsider NN Global, and referred the case to a seven-judge Bench.

In December, the seven-judge Bench upheld the validity of an unstamped arbitration agreement. The Bench reasoned that not stamping was a ‘curable defect’ and would not render the whole agreement void. This decision stands out for one more reason–it’s the first seven-judge Bench judgement in five years. 

Sai Spandana: And with that, we wrap up our list of the top 10 judgements of the year! We at SCO have tracked all of these cases extensively. Head over to our cases page for our detailed coverage of each and every one of them.

As part of SCO’s 2023 Review, we’ve written about the most important hearings of the year,  the number of pending cases, the number of cases filed and disposed of at the Supreme Court this year. Head over to SCObserver.in for a snapshot of  2023 at the Supreme Court. 

Gauri Kashyap: Make sure to comment below and let us know what cases and institutional development you thought were important, and what you would add to the list! 

We’d also like to take this moment to thank you all, our viewers, for watching and engaging with our content this year. Stay tuned for more news on the Supreme Court at scobserver.in. Thank you for watching!