by Aishwarya Birla
As the year draws to a close, we review the constitutional matters decided by the Supreme Court in 2023 as we celebrate the 74th Constitution Day on 26 November. This year was one that had the Supreme Court hear both landmark cases pertaining to constitutional interpretation and public importance. This piece reviews select cases and developments to reflect on the engagement with the Constitution and the Supreme Court in the larger context of the road ahead and also the relevance of the past.
The Supreme Court denies marriage equality
Perhaps the most recent and vastly publicised case decided by the Supreme Court that dealt with constitutional interpretation and the scope of the fundamental rights guaranteed to citizens, was Supriyo v Union of India, popularly known as the Marriage Equality case. The five judge bench had a split decision, although the bench unanimously held that there was no right to marry as protected by the Constitution under Article 21, and nor could a claim of discrimination be made in the lack of enjoyment of this right under Article 14. Interestingly, this case looked not only at the scope and the interpretation of these fundamental rights as enshrined in the constitution, but also the role of the Supreme Court and the scope of its powers to read into the Constitution rights not expressly enumerated when not derived from the fundamental rights. Chief Justice Chandrachud’s opinion refers to the Constituent Assembly Debates to investigate the powers granted to the Supreme Court. However, despite the detailed inquiry into the breadth of powers of the Supreme Court and the right to equality and choice of life partners regardless of sexuality, the Supreme Court did not decide in favour of the petitioners in their demand for marriage equality. Not only does this have relevance in terms of the recourse to the Constituent Assembly Debates and their impact on current constitutional interpretation, but also on the claims of India’s constitution being transformative and what that means for the future of constitutional engagement and rights litigation.
The Supreme Court upholds demonetisation
The companion case in terms of widespread impact and celebrity that was also decided by the Supreme Court this year was the challenge to the demonetisation scheme the government implemented in 2016. Both the constitutionality and the manner of its implementation were challenged before the court. In a 4-1 majority the court held that the scheme was constitutionally valid. This case also focussed on the scope of interference of the court in matters of economic policy and the scope of powers of the Union to implement such a scheme. Although the question revolved largely around the Reserve Bank of India, 1934, the larger questions of separation of powers and scope of judicial review remained, similar to the questions raised in Supriyo.
The Supreme Court hears the challenge to the removal of special status of Jammu & Kashmir
Another such case was the petition challenging the abrogation of Article 370 which granted special status to the state of Jammu & Kashmir, which hinged on the petitioners’ claim that Article 370 was meant to be a permanent feature of the Constitution of India and the Indian Union Parliament could not take the place constituent assembly of Jammu and Kashmir for the purposes of state re-organisation. This question of the role, importance, and irreplaceability of the Constituent Assembly is also one tied to the history of partition, accession, and constitution drafting and machinery.
Other important cases considering similar questions
Questions pertaining to the scope of rights and the power of the Supreme Court were also raised in cases examining the challenge to the practice of Jallikattu, which was rejected based on the Tamil Nadu Legislature’s view of the cultural significance of the practice; the power of the Supreme Court to directly grant divorce under Article 142; and the early release of the Bilkis Bano gangrape convicts in terms of the power of the state to sanction such a release under federal statute and the relationship between the Centre and Gujarat. The questions of the scope of powers of each such state organ and the scope of rights as enshrined and spelled out in the Constitution 74 years ago are still being debated, making the history and drafting of this Constitution as relevant today.
Constitutional benches to be institutionalised?
Beyond cases, this has been a year of constitutional benches, with Chief Justice Chandrachud proposing that five judge benches become permanent features of the Supreme Court. Further, several cases were listed before seven judge and nine judge benches for directions this year, with the hearings for the same to likely be next year. The constituting of seven and nine judge benches has become a relatively rare phenomenon, with this bench composition, along with constitutional benches, being more common in the years immediately following the adoption of the Constitution in 1950.
Cases and developments so far in the year then have had the common theme of constitutional provisions in terms of delineation of powers, scope of interference, questions that have been debated since before the Constitution was drafted. The Supreme Court often looks to the Constituent Assembly Debates to aid their interpretation of the Constitution of India, a mode of interpretation that also characterises the cases decided this year. The work of PACT focusses on looking at the importance of historical materials, such as the Constituent Assembly Debates and to generate literature and tools that can aid further inquiry into constitutional law and history. It will be interesting to see the role of historical analysis for current and future interpretations in questions beyond what is usually seen as the ambit of transformative rights, focusing not just on the interpretation of rights but on the role and scope of state machinery.