The Desk

August Monthly Review: Notable Hearings and Judgments

Pending Constitution Bench cases took the spotlight in August while the SC also heard matters on privacy, politics and bail

Constitution Benches Revived

In the last few days before Justice U.U. Lalit took over as the Chief Justice of India, the Supreme Court listed 25 Constitution Bench matters to be heard from August 29th, 2022. Constitution Bench matters, arguably the most crucial in the Court’s docket, have long been pending before the Court. Constitution Benches consist of a minimum of five Judges as these cases involve substantial interpretation of the Constitution.

No Constitution Bench matters were heard during former CJI Ramana’s tenure. CJI U.U. Lalit, who succeeded CJI N.V. Ramana, indicated his intent to have a Constitution Bench functioning throughout the year at the very beginning of his tenure. Constitution Bench activity at the Supreme Court has declined significantly over the years and came to a complete standstill during former CJI Ramana’s tenure. 

On August 30th, 2022, two 5-Judge Constitution Benches led by CJI U.U. Lalit and Justice Indira Banerjee settled on five cases to be heard in September 2022. These include matters on taxation, reservations for Economically Weaker Sections (EWS) and for Muslims, remission policies for prisoners, and service rules.

Here is a comprehensive list of all the 25 Constitution Bench cases that have been revived. 

Court Upholds Party Autonomy In Fixing Arbitrator’s Fees

On August 30th, 2022, the Supreme Court delivered the Judgment in the ONGC-Afcons dispute over the fixing of arbitration fees. The Judgment stressed on the importance of party autonomy in arbitration proceedings and held that arbitrators cannot unilaterally decide their own fee. Instead, parties to the arbitration must mutually agree on a fee structure, failing which the Fourth Schedule of the Arbitration and Conciliation Act, 1996, will function as a default option. Further, the Court capped arbitrators’ fees at Rs. 30 lakhs per arbitrator. 

Shiv Sena Disqualification Row Referred to a Constitution Bench

The ongoing Maharashtra Political crisis, which saw the fall of the Uddhav Thackeray-led Maha Vikas Aghadi government, lost its initial momentum at the Supreme Court. The case arose when the Shinde-led faction of the Shiv Sena broke away from the Thackeray-led faction of the Shiv Sena. While the Supreme Court, initially, granted urgent hearings for the matter, the case appears to have taken a backseat once Mr. Eknath Shinde was sworn in as the Chief Minister in Mr. Uddhav Thackeray’s stead. 

In August, the Bench heard arguments questioning whether the Supreme Court was the right forum to adjudicate the matter, and whether political parties and legislative parties are distinct. After pondering over the need for a Constitution Bench across multiple hearings, the Court finally referred the case to a 5-Judge Constitution Bench on August 23rd, 2022—an almost 3-week gap lies between the referral and the previous hearing. The Shinde-led government has been in power for two months since June 30th, 2022. 

The Constitution Bench led by Justice D.Y. Chandrachud will begin hearing the matter on September 27th, 2022.

Pegasus Technical Committee Submits Sealed Report 

Towards the end of July 2022, the Pegasus Technical Committee submitted its report on the alleged use of Pegasus to spy on Indian citizens to the Supreme Court in a sealed cover after multiple delays. On August 25th, 2022, a Bench comprising former Chief Justice N.V. Ramana and Justices Surya Kant and Hima Kohli, partially read the report and noted that only 5 of the 29 phones submitted for investigation showed signs of being infected with malware. However, the report was unclear on whether the malware was Pegasus. However, it specifically pointed out the Union Government’s reluctance to cooperate with the investigation, as seen in Court through the developments in the case so far. 

The development coincided with the 5th anniversary of Puttaswamy I—which declared the right to privacy as a fundamental right on August 24th, 2017 . While five years may have passed since the landmark decision, the Union is yet to pass a Data Protection Bill, despite being ordered to enact one by the Supreme Court. On August 3rd, 2022, the Union withdrew the Data Protection Bill, 2021 and claimed it would be replaced by a ‘comprehensive legal framework.’

Court Hesitates to Hear Sub-Classifications in Reservations

The SC also heard key matters concerning reservations. On August 10th, 2022,  the issue of sub-classification in reservation within Scheduled Castes was briefly mentioned before a 3-Judge Bench comprising former CJI N.V. Ramana and Justices Hima Kohli and Krishna Murari. ‘Sub-classification’ within reservations will allow States to provide benefits to specific communities over others under the same reservation umbrella based on their relative backwardness. The issue, which has been pending for nearly two years without a hearing, received a ‘reserved’ response from the Court. The Bench was disinclined to pass any Interim Orders as a similar matter, State of Punjab v Davindar Singh, on the constitutionality of sub-classifications within reservations was pending before a 7-Judge Constitution Bench. 

Delays Continue to Hinder Bail Applications of Arrested Activists

The Delhi High Court continued to hear arguments against the bail applications of arrested activists, Umar Khalid and Sharjeel Imam, over their alleged involvement in the 2020 Delhi riots. On August 22nd, 2022, Special Public Prosecutor Amit Prasad, on behalf of the Delhi police, read Sharjeel Imam’s speeches before the Court for two hours, to point out instances that allegedly led to the riots and indicated his guilt. He also sought permission to read Umar Khalid’s speeches to the Court, even though his co-counsel had already done so before. The Delhi HC spent multiple days listening to the arrested two arrested activists’ speeches. Despite the Supreme Court holding that bail is a rule rather than an exception, lower Courts seem to be slow to follow. 

Sharjeel Imam surrendered to the Delhi police on January 28th, 2020, and Umar Khalid was arrested on September 14th, 2020. The two have remained in custody ever since.

Upcoming Hearings: PMLA Review and the Hijab Ban

On August 25th, 2022, the Supreme Court agreed to hear a review petition against its July 27th Judgment which upheld all the challenged Sections of the Prevention of Money Laundering Act, 2002. Former CJI Ramana indicated that the review would be limited to two grounds—the grant of Enforcement Case Information Report (ECIR) to the accused following their arrest, and the reversal of the presumption of innocence when deciding bail applications. 

On August 29th, 2022, a Bench comprising Justices Hemant Gupta and Sudhanshu Dhulia adjourned hearings in the appeal against the Karnataka High Court Judgment which upheld the hijab ban in educational institutions in the State. A perturbed Bench cautioned the petitioners, who sought more time, against ‘forum shopping’—delaying hearings in the hopes of a more favourable Bench in the future. The Bench began to hear substantive arguments on why the case should be referred to the Constitution Bench on September 8th, 2022.