The year 2023 saw the Supreme Court form Constitution Benches almost back-to-back to hear long-pending and contentious cases like the abrogation of Article 370, same-sex marriage and demonetisation, but the results have left petitioners disappointed.
The petitioners have either simply failed in court or the court’s directions were subverted by the government through amendments of laws or sheer delay in implementation.
On paper, the statistics on Constitution Benches look impressive. The pendency of five-judge Constitution Bench cases was reduced from 36 to 19 between January 1, 2023 to December 15, 2023. Dates were notified for hearing six cases before seven-judge Benches and five before nine-judge Benches. The Supreme Court credited its “strenuous effort” for the achievement.
Chief Justice of India D.Y. Chandrachud had himself presided over five-judge Constitution Benches for a total 71 days in 2023, delivering five judgments. The Chief Justice even headed a seven-judge Bench for four days and pronounced a judgment.
“Important matters like In Re Section 370, arbitration matters relating to stamped documents and their admissibility, heavy motor vehicles being driven on normal licenses, settling the tussle between Delhi government and the Centre, Maharashtra Legislative Assembly matter, the rights of LGBTQ [same sex marriage], and other important matters have been duly heard and pronounced,” the court said in a statement in December.
But petitioners in some of these heavily-debated cases, who had accused the government of attacking the principles of federalism; of implementing policy causing widespread financial distress; and had sought protection of fundamental rights of equality and dignity of marriage, found no relief before the Constitution Benches of the court.
In January, a majority of four judges on a Constitution Bench headed by Justice Abdul Nazeer, currently serving as Andhra Pradesh Governor, upheld the government’s decision to demonetise ₹500 and ₹1,000 currency notes through a gazette notification on November 8, 2016. The petitioners, led senior advocate P. Chidambaram, had submitted in court that trying to find the reasons for the withdrawal of 86% of the currency in circulation in one stroke was like looking for a “black cat in a dark room”. Only Justice B.V. Nagarathna dissented with the majority opinion, observing that there was no “meaningful application of mind” by the Central Board of the Reserve Bank of India, and the move had led to severe financial crunch and socio-economic despair.
The year is ending with the aftertaste of the Supreme Court’s stamp on the abrogation of Article 370 and the subsequent bifurcation of the State of Jammu and Kashmir into two Union Territories in August 2019. The Constitution Bench headed by Chief Justice Chandrachud did not answer the basic question raised by the petitioners whether the Parliament could unilaterally extinguish the character of Statehood by converting a full-fledged State into one or more Union Territories under Article 3 of the Constitution.
October 17 turned out to be a major disappointment for the LGBTQ community with a Constitution Bench refusing to legalise same-sex marriage by making the Special Marriage Act of 1954 gender-neutral. A majority on the five-judge Bench clearly said the Parliament should decide the issue while a minority of Chief Justice Chandrachud and Justice S.K. Kaul made ineffective suggestions about framing a regulatory framework to recognise the “civil union” of same sex partners.
The year also saw the government sidestep Constitution Bench judgments.
The Central Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act of 2023, passed in the background of an unprecedented mass suspension of Opposition MPs, has subverted a March 2 Constitution Bench direction that the Chief Justice of India should be a member of the selection committee to pick the CEC and ECs.
The Centre, through the Government of National Capital Territory of Delhi (Amendment) Act, 2023, has also effectively nullified a Constitution Bench ruling in May which had upheld the authority of the Delhi government over civil services in the national capital.
Maharashtra Legislative Assembly Speaker Rahul Narwekar is yet to pronounce his decision on the pending disqualification petitions against the Eknath Shinde camp under the Tenth Schedule of the Constitution. A five-judge Bench, in May, had reposed its faith in the Speaker’s “propriety and impartiality” to decide within a reasonable time. In the last hearing in December, the Speaker sought time till January 10, 2024 to decide the 34 disqualification petitions.
