5 important constitution bench cases that will be heard in 2023

The Supreme Court of India

In 2023, two constitution benches of the Supreme Court (SC) will hear crucial cases on subjects ranging from the validity of WhatsApp’s privacy policy to the enforceability of an arbitration agreement in an unstamped document.

Constitution benches led by Chief Justice of India (CJI) DY Chandrachud and Justice KM Joseph are likely to start hearing these cases in January 2023. During CJI UU Lalit’s tenure, six constitution benches were formed, of which two stand dissolved owing to the superannuation of Justices Lalit and Indira Banerjee.

MoneyControl lists five important constitution bench cases to watch out for in 2023 :

WhatsApp’s privacy policy
When WhatsApp modified its privacy policy in August 2016, a Public Interest Litigation (PIL) was filed in Delhi High Court (HC) by Karmanya Singh and Shreya Sethi. The PIL alleged that the policy, which indicated that WhatsApp would share users’ personal data with its parent Facebook, violated users’ right to privacy.

The Delhi HC refused to entertain the PIL. The HC however directed WhatsApp to delete the data of users who choose to delete the application. Furthermore, the court directed WhatsApp not to share with Facebook the data of users who had chosen to retain the application.

The petitioners challenged the HC order by filing a Special Leave Petition in the SC. The SC referred the matter to a constitution bench as the case involved important questions of law pertaining to the right to privacy.  In September 2017, the SC was informed that a committee of experts led by former SC judge, Justice BN Srikrishna, would examine the issue of data protection, and legislation to this effect may be passed. The case was thus adjourned to a future date.

Also read: Yearender 2022: Five key judgments delivered by Supreme Court this year

In January 2021, WhatsApp rolled out a new privacy policy, which triggered a controversy. The policy stated that after a certain date users would not be able to opt-out of the clause regarding WhatsApp sharing their data with Facebook. On February 15th, 2021, the new privacy policy was challenged in the SC on the grounds that WhatsApp offered lower privacy protection for Indian users compared to what it offered to users in other countries.

The case came up for hearing in September 2022. Solicitor General (SG) Tushar Mehta informed the court that parliament was considering bringing in a new law that would address the concerns of the parties. The court took his submission into consideration and adjourned the case to January 17, 2023, for final hearing. The court will decide if WhatsApp’s privacy policy violates the right to privacy enshrined under the right to life.

Maharashtra political crisis
In November 2019,  the Uddhav Thackeray-led Shiv Sena, in alliance with the Congress and the Nationalist Congress Party (NCP), formed the government in Maharashtra. However, in 2022, prominent Sena leader Eknath Shinde, along with 40 other MLAs, claimed that they were the real Shiv Sena, and formed the government with the support of the Bharatiya Janata Party (BJP).

Prior to Shinde being sworn in as the Chief Minister (CM) of Maharashtra, Uddhav Thackeray asked the Deputy Speaker to initiate disqualification proceedings against Shinde and his MLAs for defecting from the party. At the same time, two MLAs from the  Shinde  camp moved a no-confidence motion against the Deputy Speaker, asking him to be removed from the post.

The Shinde camp moved the SC against their disqualification notices. A  vacation bench of the SC gave them time to reply to the notices.

Subsequently, the Shinde camp, along with the BJP, urged the Governor of Maharashtra to call for a floor test to prove their strength in the assembly. The issue of the floor test also reached the SC. The court, however, refused to stay the test, which led to the resignation of Uddhav Thackeray as CM of Maharashtra.

In subsequent hearings, a three-judge bench of the SC referred the case to a constitution bench to decide on the limitations to the power of the Speaker / Deputy Speaker, against whom a disqualification application was pending. The constitution bench will also decide the pleas against Shinde being sworn in as the CM of Maharashtra.

A constitution  bench led by CJI DY Chandrachud is likely to hear the case on January 10, 2023.

Delhi government vs. LG
In 1991, a constitutional amendment paved the way for an elected Legislative Assembly and a Council of Ministers, including a Chief Minister, for Delhi. The amendment provided the Assembly with the power to make laws for Delhi in relation to matters under the State or Concurrent Lists of the constitution of India, except for matters related to public order, police, and land matters. The Lieutenant Governor (LG) of Delhi was designated the Administrator of the national capital territory (NCT) of Delhi.

In 2018, a constitution bench held that the LG was bound by the aid and advice of the council of ministers in all matters where the legislative assembly had the power to make laws. They also ruled that the LG only needed to be consulted on decisions taken by the council. The LG’s opinion was not binding.

Also read: The De-Mo case: What the lawyers said for and against the matter

The case was referred back to a two-judge bench of the Supreme Court, for considering other issues in the matter. In 2019, a bench of Justices A K Sikri and Ashok Bhushan (both since retired) delivered a split-verdict regarding the control of administrative services in Delhi. The bench had recommended that a three-judge bench be set up to decide the issue.

The union government enacted the Government of National Capital Territory (Amendment) Act, 2021 (the Amendment), which prevented the legislative assembly from looking into the day-to-day administration of Delhi in entirety. The act also prevented the assembly from conducting inquiries into administrative decisions. The amendment mandated that all executive action taken by the government must first receive the LG’s  approval.

The AAP-led Delhi government challenged the constitutional validity of the amendments in the Supreme Court. The Delhi government alleged that the amendment diminished the powers and functions of the elected legislative assembly and established the LG as the default administrative authority of Delhi on all matters.

The case is likely to be taken up for hearing by a constitution bench led by CJI Chandrachud in January 2023.

Validity of arbitration agreements in an unstamped contract
An arbitration clause in a contract between two parties signifies that in case of a dispute, they agree to appoint an arbitrator to adjudicate, instead of litigating in court in the first instance. This, however, is subject to provisions of the Arbitration and Conciliation Act of 1996. But there has been a controversy over whether an arbitration clause in a contract that has not been stamped or stamped insufficiently is valid.

In 2011, in the matter of SMS Tea Estates vs. Chandmari Tea Co.,  the SC held that an unstamped arbitration clause in a contract that’s compulsorily registrable or chargeable to stamp duty was not valid. The SC based its decision on the proposition that an agreement that was compulsorily registrable or chargeable to stamp duty could not be relied upon as evidence per the Indian Stamp Act, 1899.

In 2021, in the matter of NN Global Mercantile vs Indo Unique Flame, a three-judge bench of the SC led by Justice Chandrachud held that an arbitration clause in an unstamped or insufficiently stamped agreement could be enforceable. However, since another three-judge  bench of the SC had held otherwise in the matter of SMS Tea Estates, the bench referred the issue to a constitution bench.

The case is likely to be heard by a constitution bench led by Justice KM Joseph in early 2023.

Euthanasia and the right to die
In 2005, an NGO called Common Cause filed a petition in the Supreme Court asking for the right to die with dignity to be declared a fundamental right under Article 21 of the constitution. Common Cause contended that denying the right to die with dignity to terminally ill patients extended their suffering.

In 2018, a constitution bench held that the right to die with dignity is a part of the right to life. The court held that an individual’s right to execute medical directives in advance is an assertion of the right to bodily integrity and self-determination, and does not depend on any laws in the country. The case was, however, listed before a constitution bench led by Justice KM Joseph for certain legal clarifications.

The bench is likely to hear the case in early 2023.