Monthly Review: December 2023

December saw the Article 370 judgement, hearings against Section 6A of the Citizenship Act, Justice Kaul’s retirement and more. 

The Supreme Court worked for only two weeks in December 2023, just before breaking for winter on 18 December. Despite this, it was an action-packed month for the Court. Five and seven judge Constitution Benches delivered three decisions and judgements were reserved in two more. 

A five-judge bench upheld the Union’s abrogation of Article 370 which granted a special status to Jammu and Kashmir (J&K). This decision brought decades of J&K’s constitutional history to a close. The Court also delivered two judgements that expanded the scope of arbitration in India. 

The judgement concerning the validity of an unstamped arbitration agreement is the first seven-judge bench decision since 2019. 

On 25 December 2023, Justice S.K. Kaul retired from the Court after a tenure of almost seven years, leaving the Court with one vacancy. 

Supreme Court upholds the abrogation of Article 370

On 11 December 2023, a five-judge Constitution Bench led by Chief Justice D.Y. Chandrachud upheld the Union’s abrogation of Article 370. This provision granted a special status to the erstwhile state of J&K. 

The Court held that Article 370 was a temporary provision meant to integrate J&K with the rest of India. They also held that J&K did not retain any internal sovereignty. The Bench further concluded that there was no mala fide exercise of power by the President. 

The Court did not venture into the question of reorganisation of the erstwhile state into two Union Territories as the government had promised to restore statehood to J&K soon. The Court, however, directed the Election Commission of India to conduct legislative assembly elections by the end of September 2024.

If you haven’t already, check out our judgement explainer. Prefer to read? Here’s our judgement summary. We also broke down the key decisions in our judgement matrix.

Challenges to Section 6A of the Citizenship Act: Judgement Reserved

Section 6A of the Citizenship Act, 1955 lays down the procedure for granting citizenship to immigrants from Bangladesh who entered the state of Assam before 1971. Between 5 and 12 December, a Constitution Bench led by the CJI heard arguments on the constitutionality of the provision.  

The petitioners in the case argued that Section 6A “singles out” Assam by prescribing an exclusive cutoff date for citizenship. They contended that this deprived the locals of job opportunities and resources. 

The Union Government acknowledged the petitioners’ concerns on resources, job opportunities, and demographic changes for the locals. However, they contended that Article 11 allows Parliament to deal with specific situations on granting or refusing citizenship. 

During the hearings, the Bench directed the Union to file an affidavit detailing the number of individuals granted citizenship under Section 6A and steps taken to address illegal migration.

Two Constitution Bench decisions on arbitration 

On 4 December 2023, a five-judge Constitution Bench upheld the application of the Group of Companies doctrine in Indian arbitration jurisprudence. The question before the bench was whether non signatories to an arbitration agreement can be made parties to the agreement. The Court answered in the affirmative.

In another case on 13 December 2023, a seven-judge Constitution Bench held that an unstamped or insufficiently stamped arbitration agreement was a curable defect and did not render the agreement void. It was merely inadmissible as evidence.

Securing places of worship in Manipur

The Supreme Court has been monitoring the humanitarian crisis in Manipur that arose out of the ethnic violence which started in May. On 16 December, the Court heard petitions seeking to identify and protect places of worship that were destroyed during the violence in the state.

Senior Advocate Huzefa Ahmadi, appearing for the Meitei Christian Churches Council informed the Bench that 247 churches in the state were vandalised during the violence.

The Court directed the Government of Manipur to furnish a list of all vandalised places of worship to the Court-appointed Expert Committee.

Should stay Orders vacate themselves in six months?

In a Constitution Bench hearing that only went on for a day, the Supreme Court considered whether a temporary stay granted by a Court should automatically cease to operate within six months.

The five-judge Bench led by the CJI was reconsidering a March 2018 judgement in Asian Resurfacing of Road Agency Pvt Ltd and Another v Central Bureau of Investigation.

In Asian Resurfacing, the Court had held that any stay Order granted in civil or criminal proceedings would only be operational for six months. Further, any extension of stay could only be granted by a subsequent reasoned Order showing that the case is of “such exceptional nature that continuing the stay was more important than having the trial finalised.”

During the hearings, the counsel argued that the Asian Resurfacing judgement was incorrect as it neglected the “application of mind.”

Solicitor General of India Tushar Mehta argued that the effect of the Asian Resurfacing is that a party opposing a stay has to do nothing except wait for the Order to lapse. 

Capital’s inadequate judicial infrastructure

The top court has been monitoring the judicial vacancies in lower courts since 2018. On 11 December, the Court heard updates about the vacancies and infrastructural developments in the National Capital Territory of Delhi (NCTD). 

Senior Advocate Shyam Divan, the amicus curiae, informed the Court that tenders were yet to be floated for plans approved way back in September 2019 and March 2021. He also highlighted the inadequacy of housing for judicial officers in the NCTD.

The Court directed the convening of an urgent meeting presided over by the Acting Chief Justice (ACJ) of the Delhi High Court and attended by senior NCTD officials to resolve the issues. Three days later in the next hearing, the ACJ submitted that the tender for three infrastructure projects would be floated by 26 January 2024.

Justice Kaul retired

After almost seven years as a judge at the Supreme Court, Justice Kaul retired on 25 December 2023. 

During his tenure, Justice Kaul has delivered several important decisions in cases like the right to privacy case, compensation for the Bhopal Gas tragedy victims case and the petitions seeking marriage equality.

SCO has compiled Justice Kaul’s most notable judgements. We also sat down with him for a conversation

Supreme Court Review 2023

As the year ended, we at SCO with our quantitative and qualitative assessment of the Court in 2023. 

The pendency of cases at the Court saw an all time high of 80,439 in 2023. But it was also a year when the Court disposed of 52,220 cases. This is a 31 percent increase from last year. Read our detailed analysis of pendency in 2023 here.

2023 also saw key hearings and judgements in crucial cases. We feature 10 significant judgments and their fallout here. We have also curated a list of 10 key hearings of the year which tested the Court’s capacity to protect constitutional values here.

Decisions of the Court in 2023 shaped the law of marriage, gender equality, democracy, free speech, right to life, federalism and even arbitration. We at SCO thematically broke down what the Court said in important judgements. 

SCO’s Features and Commentaries 

Along with comprehensive reporting and case analysis, SCO also undertakes features and commentaries on key cases. Here are your must reads from December 2023

What does the Sisodia bail decision mean for civil liberties?

On 30 October, the top court denied bail to Aam Aadmi Party Leader Manish Sisodia who has been in custody since 26 February 2023. First, the Central Bureau of Investigation filed a case against him, then the Enforcement Directorate under various provisions of the 

Prevention of Money Laundering Act, 2002. What does this mean for personal liberty in India? Find out in this feature by Joyston D’Souza.

Marching in a single file

The legal profession has always been paper-heavy. But the Kerala High Court is on the path to becoming digitally native, with some courtrooms already gone paperless. Independent journalist Ashfaque EJ describes the journey of the Court and the challenges in the digitising process.

Mostly quiet in foggy Srinagar

The Supreme Court’s Article 370 judgement sparked much debate across the country. But how did the people of Kashmir respond? Find out in independent journalist Adil Rashid’s ground report. 

Constitutional principles go for a toss in the criminal law of search and seizure

In November, a Division Bench directed the government to frame guidelines for seizure of devices. The government has yet to come up with a draft. In this analysis, advocate Soutik Banerjee argues that when the devices of journalists are seized, unsuspecting sources are put in a vulnerable position. And this leads to self-censorship.

The Supreme Court’s verdict on Article 370 brushes aside both legality and history

It is a “saga of historical distortions, selective amnesia and logic-less interpretation,” writes Anuradha Bhasin, the editor of Kashmir Times on the Supreme Court’s verdict upholding the abrogation of Article 370. In her view, the Union Government’s actions were inspired by majoritarian prejudices. The endorsement of those actions has put the country on a perilous path.

Supreme Court endorses the application of the group of companies doctrine in arbitration

Gulnar A. Mistry argues that the Court’s judgement in Cox & Kings v SAP India Pvt. Ltd simplifies the resolution of disputes with multi-party business transactions.

Binding non-signatories to arbitration—bringing India on par with international practice

V.P. Singh and Durga Priya Manda from AZB & Partners also argue that the Court’s decision manages to weave in sufficient flexibility while maintaining guardrails on the approach to binding non-signatories. 

The amended green law is full of red flags

The 2023 amendments to the Forest Conservation Act, 1980 make it easier for the authorities to divert reserved forest areas for commercial and public infrastructure purposes. A petition in the Supreme Court raises concerns about construction projects in ecologically sensitive areas.

According to Zeb Hasan, these amendments endanger not only forests and wildlife but also forest-dwelling communities.