Year-Ender: From Demonetisation to Article 370, Here's a Legal Roundup of 2023

Our legal system witnessed several milestones this year that will greatly influence the judicial landscape of India.

When did those weeks of impassioned arguments on the marriage equality case give away to the upholding of the revocation of Article 370 just a couple of days ago?

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As we wake up to the last day of 2023, there’s one sigh of bewilderment that’s common to us all; how did all the days go past so fast?

Weren’t we just discussing the legitimisation of demonetisation by the Supreme Court in January? Wasn’t it just the other day that divorce proceedings in India were made speedier with the introduction of a new ground for the same?

When did those weeks of impassioned arguments on the marriage equality case give way to the upholding of the revocation of Article 370 just a couple of days ago?

Indeed, the Indian legal system witnessed several milestones this year, those that will influence the judicial landscape of India to a large extent in the days to come.

Demonetisation Legally Valid

In a 4:1 majority decision, the Supreme Court held that the 2016 decision to demonetise Rs 500 and Rs 1000 currency notes was constitutional and that it fits the test of legality, proportionality, and necessity.

The Court observed that the government was in adherence to the RBI Act while demonetising the notes; besides, the objective of arresting the circulation of black money and money laundering makes it a reasonable decision.

The Court also felt that the delegation of the task of demonetisation to the Central government was also legitimate since the government was ultimately accountable to Parliament, which in turn is answerable to the citizens.

Finally, the 52-day window for the exchange of old notes was proportional to the need to prevent any further laundering. However, Justice Nagarathna in her dissent highlighted that issues as serious as demonetisation must only be made through Parliament's legislation and cannot be said to be legal merely on the grounds of its stated objectives.

Right to Die

This year, the Supreme Court of India in yet another landmark judgment highlighted that the right to personal liberty guaranteed by Article 21 includes the right to die with dignity while streamlining the 2018 Euthanasia Guidelines.

It allowed for passive euthanasia, i.e., allowing a person to die by accelerating or withdrawing treatment in strict compliance with the “Advance Medical Directives”.

New Rules for Appointments to Election Commission

The call for revisiting the appointments of the Election Commission has been a persisting demand for a while now. The Supreme Court recommended the constitution of a body comprising the Prime Minister, the Leader of the Opposition, and the Chief Justice of India to select the Chief Election Commissioner and the Election Commissioners.

This was a much-needed safeguard against the previous unilateral system of the ruling government being in charge of the appointments. However, the court-mandated the constitution of this body only as a temporary measure till a law codifying the appointments was enacted by the Parliament.

'Cooling Period' No Longer Necessary for Couples Divorcing Under Hindu Personal Laws

The Supreme Court introduced two significant changes to the divorce laws in India. Firstly, the irretrievable breakdown of marriage is now recognised as a ground for divorce, and second, couples seeking divorce under Hindu Law no longer need to undergo the mandatory 6 months “cooling period”.

Previously, couples filing for divorce under the Hindu Marriage Act,1956 had to wait for 6 months before their divorce could be finalised.

The Supreme Court acknowledged that while this provision is intended to offer couples a chance to reconcile, it often adds to the misery of prolonging an already dead marriage.

So, in case of an irretrievable breakdown of marriage, the Courts can exercise discretion and waive of this mandatory cooling period.

Ensure All Government Bodies, Universities, etc. Have ICCs Constituted as per the PoSH Act

While hearing an appeal against the dismissal order of an employee of Goa University, the Supreme Court observed that while the Protection of Women From Sexual Harassment at Workplace Act, 2013 (“PoSH Act”) is indeed a ‘salutary’ law, there are grave lapses in its enforcement.

In addressing such gaps, the Court directed that all Union and State Governments must ensure that all their ministries, departments, authorities, and public sector undertakings have an ICC constituted and its composition must strictly adhere to the provisions of the PoSH Act.

Moreover, concerned authorities should ensure information about the PoSH Act is easily accessible to all and periodic sensitisation training is conducted.

Non-heterosexual Couples Still Don’t Have the Right to Marry

While principally acknowledging that the right to enter into a matrimonial union cannot be restricted on the grounds of sexual orientation, the Supreme Court held that the onus to grant legal status to non-heterosexual couples lies with the legislature.

As such, the Court observed that the right to marry stemmed from enacted laws and social customs and could not be read up as a fundamental right. So therefore, there was no breach of any fundamental right with non-heterosexual couples being deprived of the right to marry.

However, the bench espoused that the legislature frames a code for facilitating civil unions between non-heterosexual couples.

Revocation of Article 370 Legally Valid

The 2019 decision of the Parliament to revoke Article 370 of the Indian Constitution which granted special status to the state of Jammu and Kashmir had stirred a lot of controversy regarding the mode of it being done and its stated purposes. Hearing an appeal challenging this decision, the Court held that the act of revocation was legally valid and the President was in fact well within his powers to abrogate the Article.

The abrogation intended to enable a gradual and collaborative integration of the state of Jammu and Kashmir with the rest of India and the 2019 decision upheld that. The Court saw no illegality in the decision since Jammu and Kashmir had seemingly divested itself of “internal sovereignty” by ascending to the Union of India in 1947 and the extant constitution of Jammu and Kashmir was inoperative.

The list is in no way exhaustive and the Indian Judiciary through its myriad branches continued to mold and re-mold India’s legal fabric throughout 2023. However, the aforementioned Judgments are of significance to each one of us as citizens and will beacon the evolution of the laws of our land in the upcoming months.

(Yashaswini Basu is a Bengaluru-based lawyer. This is an opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)