BOOM Rewind: Important Supreme Court Judgements In 2023

This year proved remarkable for the Supreme Court for the high number of judgments given by Constitution Benches (benches of five judges and seven judges), the number of judges appointed and those that retired, along with its record of “unprecedented disposal” of cases.

To give perspective in numbers: In 2023, the Supreme Court Constitution Bench gave 18 judgments (five-judge benches: 17, seven-judge bench: 1); 14 judges were appointed while nine retired; and the top court made a dent in the backlog of its cases by disposing 52,191 cases against the registration of 49,191 cases.

The top court judgements have been notable as well – starting with its decision on demonetization and concluding with its pronouncement on the Centre’s 2019 move to abrogate the special status granted to the erstwhile state of Jammu and Kashmir.

BOOM looks at important judgements from 2023.

Decision to demonetize not flawed; Justice BV Nagarathna Dissents

On its first working day of this year, Supreme Court Constitution Bench in a 4:1 majority said the Centre's 2016 decision to demonetise Rs 1000 and Rs 500 currency notes was reasonable and not flawed.

Justice BV Nagarathana—the sole dissenter—observed, “...Without parliament, a democracy cannot thrive...Parliament cannot be left aloof on such important decisions”.

The top court’s decision came on a batch of 58 pleas challenging the Centre's 2016 economic exercise to ban Rs 1,000 and Rs 500 currency notes. Initially, the apex court was reluctant to hear the matter after they observed that for all practical purposes, there were no issues left on demonetisation but the challenge to its economic policy could be heard as an “academic exercise”.

Former finance minister and senior advocate P Chidambaram, however, presented a compelling argument and convinced the court to hear the matter.

Can't Impose Additional Restrictions on Lawmaker's Right to Free Speech

Supreme Court Constitution Bench held additional restrictions cannot be imposed on a politician’s right to free speech and they enjoy freedom of speech in equal measure as any other citizens under Article 19(1)(a) of the Constitution.

More importantly, the majority verdict—authored by Justice V Ramasubramanian and concurred by Justices S Abdul Nazeer, AS Bopanna, and BR Gavai—held that a government cannot be held vicariously liable for statements made by its ministers.

Justice BV Nagarathna however dissented on certain points and observed that considering the impact politicians have on the masses, public functionaries and celebrities must be circumspect in what they say in public.

Mere Membership of an unlawful organization is a crime under UAPA

In a significant order, the Supreme Court upheld the provision which persecutes guilt by association when it ruled that mere membership of an organisation declared unlawful by the Centre is a crime under Unlawful Activities (Prevention) Act, 1967.

Through this verdict, the top court also reversed its 2011 Arup Bhuyan judgment—which ruled that mere membership of an unlawful organization was insufficient grounds for an offence—saying it was “bad in law”.

SC lays guidelines to select EC members; Govt brings in new law 

In a crucial verdict, the Supreme Court laid down guidelines for the appointment of Election Commission members which included a high-powered committee comprising the Prime Minister, the Leader of Opposition and the Chief Justice of India.

Election Commission was bound by duty to act in a “free and fair” manner, abide by the Constitutional framework and follow court directions since it held the fate of democracy in its hands, the Supreme Court had said. The guidelines and the court’s observation were significant as the nation is gearing towards Lok Sabha elections in 2024.

However, in a turn of events, barely four months after the judgment, the Centre in August introduced ‘The Chief Election Commissioner and other Election Commissioners (Appointment Conditions of Service and Term of Office) Bill, 2023’ which sought to replace the CJI with the Prime Minister’s nominee as the third member of the high-powered selection committee. Both houses passed this bill in the recently concluded winter session of the parliament.

Irretrievable breakdown of marriage grounds for divorce

The Supreme Court in two significant judgements recognised irretrievable breakdown in a marriage as grounds for divorce.

A two-judge bench on April 28 said irretrievable breakdown in a marriage could be read as grounds for “cruelty” under the Hindu Marriage Act.

Two days later, a five-judge bench said it could grant divorce on the “irretrievable breakdown” of a marriage by invoking its special constitutional powers. The Constitution Bench also waived off the mandatory six-month waiting period before a couple can file for divorce on mutual grounds.

This is important because till now, irretrievable breakdown was not a statutorily recognised grounds for divorces.

Though later in October, denying divorce to an octogenarian couple—the wife did not want to break up—the court observed that since Indian society still deemed marriages to be “pious”, it would be undesirable “to accept the formula of ‘irretrievable break down of marriage’ as a straight-jacket formula” to grant divorces.

Delhi vs LG: State Govt Controls all Except Land, Law & Order, Police

Supreme Court in May clarified that the Delhi government has control over all aspects of the governance except land, law and order, and the police which comes under the Centre’s control. The Lieutenant Governor (LG), which is appointed by the President, is bound by the legislative assembly which is a democratically elected government, the top court said in its latest judgment on the turf war before the Delhi state government and the Centre.

However, a week later, the BJP government—the ruling party at the Centre—promulgated an ordinance giving Delhi’s LG control.

Months later, in August, during the monsoon session of the parliament, the Centre introduced and passed the contentious Government of NCT of Delhi (Amendment) Bill, 2023 diluting the Delhi government’s power over services.

On August 12, four days after the parliament passed the bill, President Droupadi Murmu gave her nod for the bill which would have a retrospective effect from May 19 when the ordinance was passed.

Sena Vs Sena

In the Shiv Sena vs Shiv Sena matter, the Supreme Court’s Constitution Bench on May 11 said it could not restore Uddhav Thackeray’s government even though Maharashtra Governor Bhagat Singh Koshiyari’s call for a floor test was “illegal” and “unjustified”.

Thackeray resigned instead of facing a floor test, the bench said. “Cannot quash a resignation that was voluntarily given,” the Supreme Court added even as it ruled that Speaker Rahul Narwekar’s decision to recognize Bharat Gogawale as chief whip of the Shiv Sena Legislative Party the rebel faction led by Eknath Shinde “is illegal”.

SC says no to marriage equality

In a long-awaited verdict, the Supreme Court’s five-judge bench unanimously refused to grant marriage equality while ruling that right to marriage was not a fundamental right. However, a 3:2 minority opinion – led by Chief Justice of India DY Chandrachud, favoured civil unions for queer couples with the right to adopt.

The top court’s judgment came on pleas that sought a more gender-neutral interpretation of the Special Marriage Act which is a secular law for the facilitation of inter-caste and inter-faith marriages.

Pro-life vs Pro-Choice: Abortion Rights in India

The Supreme Court did not allow a married woman with post-partum depression to terminate her almost 27-week foetus after observing that there was no immediate threat to the mother.

“AIIMS has sought for a direction to stop the heart of the foetus and the court is averse to passing such a direction," the top court said. Though the top court clarified that India’s laws were firmly pro-choice (where the woman’s choice is paramount), this decision—for the first time—tilted the balance towards a pro-life stance where the foetus’s life was taken into account.

Article 370 was supposed to be temporary, restore statehood and conduct polls in J&K

In the last working week of the year, the Supreme Court unanimously upheld the Centre’s August 5, 2019 move to revoke the special status granted to the erstwhile state of Jammu and Kashmir (J&K) with directions to the Centre to restore statehood and conduct elections.

The top court pointed out that Article 370 was meant to be a temporary provision and the erstwhile state cannot have any claim to internal sovereignty different from any other state once it acceded to the Union of India post-independence.