May 2023: Supreme Court Highlights

31 May, 2023

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The Supreme Court spent the month of May hearing cases of mass interest. These matters included a wide array of questions related to the asymmetric federal model of governance in India, political parties, individual rights activists, and animal welfare groups. Along with this, the Supreme Court also set up a ceremonial bench this month to bid farewell to four Supreme Court judges. In this article, a brief description is provided regarding the cases and the judgment given by the Constitution bench in the month of May.

NCT of Delhi

Government of NCT of Delhi vs. Union of India

On May 11, 2023, the Supreme Court of India heard the Government of NCT of Delhi vs. Union of India case that dealt with the asymmetric federal model of governance in India. The issue addressed by the Constitution bench, in this case, was whether the Delhi Government has legislative and executive powers over services or not. The judgment was delivered by the Constitution bench of the Supreme Court consisting of Chief Justice of India DY Chandrachud, Justice PS Narasimha, Justice Krishna Murari, Justice Hima Kohli, and Justice MR Shah. The bench held that the Delhi government has control over the civil servants and day-to-day administration of the NCT of Delhi except for matters related to police, land, and public order. The issue rose after the High Court judgment interpreted the 2015 government Article 239 which mandated to obtain Lieutenant Governor’s approval for all administrative decisions. The major key points of the judgment include:

“NCTD is not similar to other Union Territories – By virtue of Article 239AA, NCTD is accorded a “sui generis” status, setting it apart from other Union Territories.”
“NCTD, similar to other States, also represents the representative form of government. The involvement of the Union of India in the administration of NCTD is limited by constitutional provisions, and any further expansion would be contrary to the constitutional scheme of governance.”
The executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate.”
“The exercise of rule-making power under the proviso to Article 309 does not oust the legislative power of the appropriate authority to make laws over Entry 41 of the State List.

Shiv Sena Rift

(Subhash Desai vs. Principal Secretary, Governor of Maharashtra & Ors.)

After the announcement of the 2022 Maharashtra Council polls, the rift between both Shiv Sena factions, Uddhav Thackeray’s faction and Eknath Shinde's faction, took centre stage. Mr. Eknath Shinde and other 39 rebel Shiv Sena MLAs went missing on 21 June 2022 and reports emerged that they took residence in Gujarat and Surat. It was also determined that they further traveled to Assam and Guwahati. Sensing the urgency of the situation, an emergency party meeting was called by Mr. Uddhav Thackeray which was not attended by rebel MLAs. In this context, Mr. Eknath Shinde was removed by Mr. Thackeray, the Legislature Party leader. In response to this, Mr. Shinde with a majority support of over 40 MLAs argued that Mr. Thackeray was no longer the party’s chosen representative. Further on 24 June 2022, Mr. Thackeray urged, to initiate disqualification proceedings against Mr. Shinde and other rebel MLAs, the Deputy Speaker. He also claimed that the Eknath Shinde faction disobeyed the party whip by refusing to attend the party meeting. Concerning this, other petitions surrounding political crises were mentioned before the Constitution bench including Chief Justice of India DY Chandrachud, Justice PS Narasimha, Justice Krishna Murari, Justice Hima Kohli, and Justice MR Shah.

One of the main questions mentioned before the Supreme Court was in context with the issue of the Nabam Rebia case, “Whether the issuance of a notice of intention to move a resolution for the removal of a speaker restrains them from adjudicating disqualification petitions under the tenth schedule of the Constitution?” The Constitution bench hearing the matter referred the Nabam Rebia case to a larger bench of seven judges because a substantial question of law remains to be settled. The decision delivered in this case was in conflict with the judgment and order in Kihoto Hollohan that held, there is no reason to doubt the independence and impartiality of the speaker when adjudicating on proceedings under the tenth schedule. Another question addressed was “Whether the rebel M.L.A's action was in fact defection or not?” During the proceedings, the Shinde faction mentioned that party members have the right to express dissent within their party and assured that they never left the party. The Supreme Court refused to take any decision directly regarding the matter. On May 11, 2023, the Supreme Court bench announced that the restoration of the Uddhav Thackeray government was not possible because he resigned without facing the floor test.

Recognition of same-sex marriage

On 14th November, the writ petition was filed before the Supreme Court of India by two same-sex couples seeking legal recognition of same-sex marriages in India. Further, similar cases filed in the High Court seeking same-sex marriage recognition were also transferred to the Supreme Court. A total of 20 petitions were presented which were filed by same-sex couples, transgender persons, and LGBTQIA+ activists. The Constitution bench hearing the matter constitutes Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Hima Kohli, Justice S Ravindra Bhat, and Justice PS Narasimha. The petitions here were challengings the provisions of the Special Marriage Act, 1954, the Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969 because they do not recognize non-heterosexual or homosexual marriages. During the course of a 10-day-long proceeding, various issues related to the legalization or recognition of same-sex marriage. The issues include permission to open a joint bank account, pension, Provident fund, right to adoption, maintenance, succession, surrogacy, divorce, and others.

On the first day of the proceedings, Senior Advocate Mukul Rohatgi, appearing for the petitioners, argued that the Right to marry for non-heterosexual couples is implicit in Articles 14, 15, 16, 19, and 21 that is, Equality, Non-Discrimination, Equality of Opportunity in Public Employment, Freedom of Speech, and Right to Life respectively, after the Supreme Court’s judgment in Navtej Singh Johar v. Union of India and K.S. Puttaswamy v. Union of India. During the argument, Additional Solicitor General Tushar Mehta submitted that recognizing same-sex marriage will result in the rise of various rights; therefore, Parliament has to decide after considering the viewpoints of society. A special bench was constituted for hearing this matter, headed by CJI DY Chandrachud and on May 11. 2023, the Constitution bench reserved the judgment.

Jallikattu, Bullock cart racing, and Kambala case

(Animal Welfare Board of India & Ors. vs. Union of India & Ors.)

On May 18, 2023, the Supreme Court of India disagreed with its 2014 judgment and order of the Animal Welfare Board of India vs. Nagaraja and Ors. which banned Jallikattu stating “it is not a cultural heritage of Tamil Nadu”. The Constitution bench heard petitions against the constitutionality of laws allowing Bullock cart racing, Jallikattu, and Kambala. Justice CT Ravikumar, Justice Hrishikesh Roy, Justice Aniruddha Bose, Justice KM Joseph, and Justice Ajay Rastogi were the judges involved in the Constitution bench. During the proceedings, the bench answered the question, “Is it colourable legislation that does not relate to any Entry in the State List or Entry 17 of the Concurrent List?” The top Court observed that “These are not cases of colourable legislation but we do not consider it necessary to refer to all these judgments individually as we have come to this conclusion after analyzing various statutory instruments covering the field.” Another key point of the judgment was “Tamil Nadu Amendment Act does not go contrary to Articles 51-A (g) and 51-A(h) and it does not violate the provisions of Articles 14 and 21 of the Constitution of India.” To conclude, the bench ordered that a decision on the Tamil Nadu Amendment Act would also guide Maharashtra and the Karnataka Amendment Acts, and all three Amendment Acts were found to be valid legislations.

Conclusion

The Supreme Court is currently observing summer vacation and the vacation bench has been constituted for hearing the fresh matters. The Court will reopen after the vacation on July 2, 2023, and it has been anticipated that the decision on the same-sex marriage case would be delivered.