MC Explains: Key constitution bench judgements by SC in 2023 and what to expect in 2024

SC constitution bench judgments in 2023

The Supreme Court’s constitution benches were very active in 2023, disposing of 18 cases of national importance. From arbitration to personal laws, these judgements have covered the length and breadth of India’s legal landscape.

The first working day of 2023 saw a five-judge Constitution Bench delivering its judgement on the validity of demonetisation; this trend of hearing and deciding Constitution bench cases periodically continued throughout the year. As per recent data released by the apex court, the Chief Justice of India, D Y Chandrachud, sat in constitution benches for 71 days.

The benches of the Supreme Court usually sit in combinations of two or three judges. If a case is likely to have a larger national impact a constitution bench is formed. A constitution bench usually sits in a combination of five, seven or nine judges.

Moneycontrol takes a look at the five important constitution bench judgments passed in 2023 and what to expect in early 2024.

CB judgements in 2023

While all Constitution Bench judgements are important from a public policy perspective, the following judgments are important as they clarified the law on subjects that had a direct impact on the public of the country.

Demonetisation upheld

On January 2, 2023, a five-judge Constitution Bench of the Supreme Court upheld the Union Government’s 2016 decision to demonetise Rs 500 and Rs 1,000 currency notes by a 4:1 majority. Justice Nagaratna wrote a dissenting opinion, holding the notification effecting demonetisation and the subsequent Ordinance of 2016 and the Act of 2017 incorporating the terms of the notification as unlawful.

The judgement held that the decision-making process involved in demonetisation could not be faulted because the proposal emanated from Central Government. The judgement concluded that the notification does not suffer from any flaws and is not unreasonable.

Selection panel for appointment of election commissioners

In March 2023, the apex court ruled that appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) will be done by the President on the advice of a committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha and the Chief Justice of India.

A five-judge Constitution Bench headed by Justice KM Joseph, in a unanimous verdict, held that this norm will continue to hold good till a law on the issue is made by Parliament. However, the judgement has now been nullified by Parliament with the passage of The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 (Elections Commissioners Bill)

According to the bill, the candidates for top posts in the Election Commission will be chosen by a selection panel comprising the Prime Minister, the leader of the Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the PM, essentially removing CJI from the panel.

Ruling on Shinde Vs Thackeray

In May 2023, the apex court held that the Maharashtra Governor was not justified in calling upon then Chief Minister, Uddhav Thackeray, to prove majority in the assembly on June 30, 2022, after the current CM Eknath Shinde and his faction withdrew their support for him. However, the court refused to restore Thackeray as CM saying that he did not face the floor test and had instead, resigned. The court directed the speaker of the assembly to decide on the disqualification of MLAs who switched to the Shinde faction, leading to a split in the Sena. The speaker is expected to pronounce his decision on the Sena split by January 10.

Government to decide on same-sex marriage

In October 2023, a constitutional bench of the Supreme Court refused to grant legal sanction to same-sex marriage in India, leaving it to the government to take a call on the subject. The court held that marriage is not a right granted by the constitution and there needs to be a law passed by Parliament to recognise a form of marriage. Furthermore, the court held that a civil union can be recognised only if a law is passed to the effect and not by a judgement of the court.

A review petition against this decision is pending before the apex court now. The petition alleged that SC’s decision is “self-contradictory and manifestly unjust." The plea states that the judgement "effectively compels young queer Indians to remain in the closet and lead dishonest lives if they wish the joys of a real family."

Abrogation of Article 370 upheld

In December 2023, a Constitution Bench upheld the validity of the Presidential order scrapping Article 370 of the Constitution which gave special status to Jammu and Kashmir and the bifurcation of the state, saying it didn’t retain an element of sovereignty after accession to India.

The Chief Justice of India D Y Chandrachud-led Constitutional Bench also said that Article 370 was a temporary provision, upholding the government’s contention to scrap the provision that allowed the state to have a flag and a separate constitution. The court said the bifurcation of the state into union territories of Jammu and Kashmir and Ladakh was valid but ordered the restoration of J&K’s statehood at the earliest. It also directed the Election Commission to hold polls in J&K by September 30.

What to expect in early 2024?

In the second half of 2023, the Supreme Court heard and reserved judgments in cases that challenged the validity of the government’s electoral bonds scheme and on immunity granted to lawmakers if they obtained bribes for making a speech or casting a vote in Parliament.

Electoral bonds

In November 2023, a five-judge bench of the SC reserved its judgement on a bunch of pleas challenging the constitutional validity of the electoral bonds scheme. The judgment on this is expected in the first half of 2024.

Electoral bonds are financial instruments through which anyone can donate money to political parties. Such bonds are sold in multiples of Rs 1,000, Rs 10,000, Rs 1 lakh, Rs 10 lakh, and Rs 1 crore and can be bought from authorised branches of the State Bank of India. The bond provides anonymity to the donors. These bonds were introduced in 2017 to bring transparency in electoral funding, and formally launched in 2018.

Can lawmakers be prosecuted for taking bribes for a speech or vote in Parliament?

Article 105 of the Constitution of India allows freedom of speech in Parliament. To maintain this freedom, MPs must not be prosecuted in a court of law for what they said in the house. However, the question of whether a law maker can be prosecuted for taking bribes to make a speech or cast a vote in the parliament still remains unclear.

In 1998, a five-judge bench by a majority of 3:2, held that legislators were immune to prosecution on bribery charges for their speech or vote in the parliament because Article 105 (2) confers immunity on them. A quarter century later in 2023, the SC decided to revisit this judgement by forming a seven-judge bench - the case was heard for two days in October and reserved judgement.