Monthly Review: July 2023

In July, the top Court returned from summer vacation and continued to hear Constitution Bench cases and delivered key judgements.

After six weeks of summer vacation, the Supreme Court returned to a busy month in July. With the appointment of two new judges, the top Court commenced hearing many important cases. It began monitoring the ongoing conflicts in Manipur, granted bail to Journalist Teesta Setalvad and extended ED Director Sanjay Mishra’s tenure. 

Constitution Bench activity of the Court also resumed in full swing. A new five-judge Bench of the Court heard and reserved judgement in one case, set a date to hear the challenge to the abrogation of Article 370 and referred the Union-Delhi power tussle back to five-judge Bench. 

Monitoring the Manipur Violence

On July 3, 2023, Chief Justice D.Y. Chandrachud’s Court started hearing the Public Interest Litigation filed by Manipur Tribal Forum (an NGO) about the conflict in Manipur. Senior Advocate Colin Gonsalves urged the Chief to direct the deployment of armed forces to curb violence and restore law and order. 

The Court directed the Union to file a status report detailing the efforts taken to curb the violence. The Court also directed the petitioners to present suggestions to further protect the people of Manipur. The Bench refused to direct the deployment of armed forces stating that it had not done so in 70 years. SCO found instances where the top Court has deployed paramilitary forces in the past for witness protection during communal violence, and to ensure elections are conducted smoothly. 

Illegal but Essential: Extension of Sanjay Mishra’s Tenure

On July 11, 2023, a three-Judge Bench led by Justice B.R. Gavai delivered the judgement in the challenge to the tenure extensions of CBI/ED directors. The Bench held that the repeated extension of incumbent ED Director Sanjay Mishra’s tenure was illegal and granted the Union time till July 31, 2023, to find his replacement. 

Curiously, two weeks later on July 27, 2023, the same Bench complied with the Union’s request and extended Mishra’s tenure till September 15, 2023. The Bench granted the extension in view of the upcoming Financial Action Task Force review but clarified that come midnight on September 15, 2023, Mishra could not be the ED’s director anymore.  

Delhi v Union: Back Before a Constitution Bench, Again!

On May 11, 2023, a five-judge Bench of the Supreme Court upheld the powers of Delhi’s elected government over the administration of the capital territory. However, a week later, an Ordinance put the power over Delhi’s administration squarely in the Union’s own hands.

Unsurprisingly, the Aam Aadmi Party-led Delhi Government moved the Supreme Court challenging this Ordinance on July 1, 2023. On July 11, 2023, Senior Advocate A.M. Singhvi for the Delhi government argued that the Ordinance breached the ‘triple chain of accountability’ (civil servants are accountable to ministers who are in turn accountable to the voters) and sought a stay on the Ordinance. 

On July 20, 2023, a three-Judge Bench led by CJI Chandrachud referred the case to a large. The Bench held that the case involved significant questions about Articles 239AA(3)(b) and Article 239AA(7) which remained unanswered by the Court. 

Judgement Reserved in One of Four New Constitution Bench Cases

From July 12, 2023, a Constitution Bench of the Court started hearing a batch of petitions challenging the alterations to the rules of a public selection process, after the process had commenced. 

After de-tagging several cases from the main petition, the Court heard arguments on the key Constitutional question—if ‘rules of the game’ in a selection process for a public post can be changed after the selection process has been initiated. After nearly three days of arguments, the Bench reserved judgement in the case. 

This was one of the four cases listed before the new Constitution Bench led by CJI Chandrachud. The other two cases deal with the rules of appointing arbitrators and the validity of a ‘light motor vehicle’ licence to drive a ‘transport vehicle.’ These cases will be heard next in September 2023. 

Article 370 Resurfaces

On July 11, 2023, five senior most Judges of the Supreme Court decided to hear the challenge to the abrogation of Article 370—a case pending since 2019—from August 2, 2023. This provision confers special status to Jammu and Kashmir. 

The Supreme Court will decide the extent of the Union’s powers to make laws for Jammu and 370. The Court will also decide if the Union’s reorganisation of the State is constitutional. As the Supreme Court answers large constitutional questions, the will of the people of Jammu and Kashmir hangs in the balance.

Bail Granted to Activist Teesta Setalvad

On July 19th, 2023, the Supreme Court granted bail to activist Teesta Setalvad, who was accused of fabricating evidence in the 2002 Gujarat Riots. Setavad moved the Supreme Court against a decision of the Gujarat High Court which refused to grant her bail. 

A Bench led by Justice B.R. Gavai held that the High Court’s decision was ‘perverse’ as it denied her bail solely based on the fact that Setalvad did not protest the FIR against her. 

Rahul Gandhi’s Defamation Case

On July 21, 2023, a Bench comprising Justices B. R. Gavai and P.K. Mishra heard Congress Party leader Rahul Gandhi’s appeal against an Order of the Gujarat High Court. The High Court had upheld a Magistrate Court decision convicting him of criminal defamation over the ‘Modi’ comment in 2019. 

Justice Gavai offered to recuse himself from the case as his father and brother are politically connected to the Congress Party. However, after both sides said that they had ‘no objection’ to him on the Bench, the Court issued notice to the parties and listed the case to be heard on August 4th, 2023. The Court will decide if Rahul Gandhi’s conviction for defamation must be stayed and his disqualification from Parliament quashed.

Institutional Changes: Retirements and New Judges

On July 7, 2023, Justice Krishna Murari retired after a tenure of 3.75 years at the Supreme Court. His retirement brought the sitting strength of the Supreme Court to 31 Judges. On July 14, 2023, Justices Ujjal Bhuyan and Justice S.V. Bhatti were sworn in as Supreme Court Judges. 

With these two appointments, the sitting strength of the Supreme Court is 32 Judges, out of its sanctioned strength of 34 Judges.