10 occasions in 2023 when the Supreme Court sided with the govt

Justice DY Chandrachud took over as Chief Justice of India in 2022 and completed a year in office on 9 November 2023. Under him, the Supreme Court has seen livestreaming of court hearings and disposal of 52,000 cases in 2023, the highest in six years. He also refused to accept from the government a ‘sealed cover’ in a case related to retired defence personnel, made the court friendlier for differently abled people, and introduced technology in the administration of justice.

This year also saw the court pull up the government on the appointment of election commissioners and ruling in favour of the Delhi government against the Centre on an ordinance taking away the NCT government’s jurisdiction over the services or bureaucracy. In both cases, the government cocked a snook to the Supreme Court by legislating the exact opposite of what the court had ruled. The Supreme Court also pulled up the governors of Punjab and Kerala for sitting over bills.

Despite such positives, the overwhelming consensus at the end of 2023 among legal pundits is that the Supreme Court of India could have played a far more active role in establishing a ‘rule-based order’ and safeguarding democracy, individual liberty and public interest. The court took the easy way out by being status-quoist and conservative.

The CJI himself was criticised by both liberals as well as right-wing government supporters. While the latter routinely took umbrage at his allegedly radical and progressive lectures and minority judgments, liberals have not been able to forget that it was possibly Chandrachud who penned the controversial Ayodhya judgment. Contrary to convention, none of the five Justices on the bench owned the judgment.

He was also on the bench that dismissed petitions demanding a direction for an independent investigation into the mysterious death of special CBI Judge B.H. Loya hearing the Sohrabuddin Shaikh fake encounter case in which Union home minister Amit Shah was the main accused.

With Chandrachud retiring on 10 November 2024, the next 10 months will see him deliver more important and possibly more controversial judgments, beginning with the Electoral Bond case, on whose validity a judgment has been reserved and is expected soon. However, there will be few surprises if the court, in keeping with its conservative track record, decides to uphold the controversial and opaque bonds.

Meanwhile, here is a list of 10 cases in 2023 when the Supreme Court’s decisions came in for widespread criticism:

1. The year began with the Supreme Court upholding by majority judgment the ‘process’ followed by the government in November 2016 while demonetising 87 per cent of the currency in circulation. The minority view of the court was that the government needed deliberations in Parliament and a law to do this.

2. Umar Khalid, arrested by Delhi Police on charges of conspiracy in the Delhi riots of 2020 based on what his lawyers have argued is flimsy evidence, did not get a hearing from the apex court throughout the year on his bail petition. The case has been lingering because Delhi Police has been filing supplementary charge sheets and pleading that the investigation is still going on. Delhi Police has also consistently opposed the bail plea and the Supreme Court, which never tires of saying that ‘bail is the rule and jail an exception’ has repeatedly adjourned the hearing.

The matter first came up for hearing on 18 May, when six weeks were given to Delhi Police to file a response. During the second hearing on 12 July, the bench gave the police 12 more days and said the matter would only take “one or two minutes” during the next hearing. The CJI’s court adjourned hearings on 24 July, 9 August, 17 August, 18 August, 5 September, 12 September, 12 October, 1 November, and 29 November — when it was adjourned to 10 January 2024.

3. Article 14 reported that at least eight cases pending before the Supreme Court were listed to the bench of a relatively junior judge in violation of the rules which require the case to be retained by the senior judge before whom the case was first listed, or a judge hearing a similar case. Umar Khalid’s bail plea, petitions challenging provisions of the UAPA Act, and the bail plea of Bhima-Koregaon accused Mahesh Raut are among the cases.

4. The Supreme Court ruled 3-2 against legalising same-sex marriages in India, ruling that it was for the Parliament or legislature to decide. One of the lawyers who argued the case quipped, “Considering the government has not been supportive of queer rights, and historically the Supreme Court being the upholder of queer rights, the SC has failed to deliver its responsibilities.”

The court unanimously held that queer couples have a right to cohabit without any threat of violence, coercion, or interference; but refrained from passing any directions to formally recognise such relationships as marriages. All five judges agreed that transgender persons in heterosexual relationships have the right to marry under the existing legal framework. In a 3:2 majority, the bench held that same-sex couples did not have the right to form civil unions, and that they could not adopt children.

5. The Supreme Court unanimously upheld the power of the President to abrogate Article 370, end special status to Kashmir, and bifurcate the state into two Union Territories without consultation with, and consent of, the state legislature. Several Constitutional experts and retired Supreme Court judges criticised the judgment and pointed out that it has opened a Pandora’s box, setting a precedent by which the President will henceforth be able to bifurcate any existing state and create Union Territories at will. A review petition is likely to be filed against the judgment.

6. The Supreme Court ceded ground to the government during the year in matters of appointment, transfer and elevation of judges of high courts. Despite protesting at the government blocking appointments recommended by the Supreme Court collegium even after the second iteration, and the court taking recourse to make public the objections raised by the government in some cases and debunking them, the court allowed the government to have its way.

In the case of Justice S Muralidhar, it was glaring the way the government blocked his appointment as chief justice of Madras High Court and his much-expected elevation as judge of the Supreme Court. In September 2022, the Supreme Court collegium recommended his transfer as chief justice of Madras High Court. The Centre sat on this proposal until CJI Chandrachud in April 2023 recalled the order. Justice Muralidhar finally retired on 7 August 2023 at the age of 62 as CJ of Orissa High Court. Why didn’t the collegium recommend his elevation to the Supreme Court?

7. The court also upheld by majority judgment the validity of the EWS quota of 10 per cent for economically distressed sections not availing reservation otherwise, thus effectively denying the quota to the poorer groups among SCs, STs and OBCs. The minority view articulated by then chief justice U.U. Lalit said the exclusion was “Orwellian” as the government’s own statistics showed that the “bulk of economically deprived sections of society belonged to SC/ST/SEBC/OBC”.

He said SCs make up 38 per cent of the population, STs make up 48.4 per cent, and OBCs constitute 13.86 per cent of the 31.7 crore people living below the poverty line in India. Forward castes or the unreserved category occupy only 5.85 per cent of the Below Poverty Line (BPL) population.”

8. The court in the case related to the political crisis in Maharashtra following the defection of Shiv Sena MLAs ruled that though the defection was against the provisions of the Constitution, it could not order the restoration of the Uddhav Thackeray government as Thackeray had resigned without facing a floor test.

The court refused to use its powers under Article 226 and Article 32 to decide the disqualification issue, handing over the decision of determining the disqualification petitions to the speaker, and adding that the speaker “must decide the disqualification within reasonable period” even after finding fault with the speaker’s actions.

The court held that the decision of the speaker to recognise Eknath Shinde as the leader of the Shiv Sena legislature party was illegal, as the speaker did not ascertain if the decision had the backing of the political party. It was held that it is the "political party" which has the power to appoint a whip and the leader and not the "legislature party". The speaker is yet to decide the case.

9. The apex court put the colonial Sedition Law (section 124A of the IPC incorporated in 1890) on hold in 2022, but gave in to the government’s plea against declaring it unlawful. In September 2023, it referred the matter to a five-judge Constitution bench, declaring that the new penal law (Bharatiya Nyaya Sanhita) would not have retrospective effect on cases already filed under the colonial law.

Arguments that the new penal provisions, now approved by the President of India, are even more draconian and regressive and may have a chilling effect and hence the court’s ruling on the colonial provisions would set a precedent, were not entertained. The new Nyaya Sanhita does not mention has seemingly dropped the word ‘sedition’ on paper, but it has simply made a backdoor entry with a different name.

10. A Constitution bench reserved its order on 12 December on petitions challenging section 6A of the Citizenship Act 1955, which allowed citizenship to Bangladeshis who had settled in Assam between 1966 and 24 March 1971, without voting rights for the next 10 years.

The government informed the court that tribunals in Assam had found 32,381 people to be foreigners in Assam since 1966. The affidavit also informed that 14,346 foreigners were deported from the country between 2017 and 2022 owing to reasons like overstay, visa violation, illegal entry etc.