Justice SK Kaul led Constitution Bench To Hear Three Cases In October And November

The Bench will hear matters on religious excommunication, compensation for Bhopal Gas Tragedy victims and retrospective immunity from arrest

On September 20th, 2022, a Constitution Bench led by Justice S.K. Kaul laid down the schedule to hear five key matters. These cases question the validity of religious excommunication, adequacy of victim compensation over the Bhopal Gas Tragedy, retrospective immunity against arrest, qualification criteria for advocates, and the Supreme Court’s powers to hear cases directly. 

The Bench, also comprising Justices Sanjiv Khanna, A.S. Oka, Vikram Nath and J.K. Maheshwari, is the fourth Constitution Bench to be formed in Chief Justice of India U.U. Lalit’s tenure. The Bench is tasked with hearing some of the oldest pending Constitution Bench cases, some of which have been on the Court’s docket for over 30 years. The Bench will start hearing arguments in these cases from September 27th, 2022. 

Validity of All India Bar Examinations

In 2010, the Bar Council of India (BCI) introduced the All India Bar Examination (AIBE). The exam was made mandatory for anyone who wished to practise as an advocate. 13 petitions were filed by advocates and legal aspirants at the Supreme Court challenging the validity of the examination. They argue that it compels a lawyer to write it, even after their enrollment as an Advocate. A lawyer’s enrollment with a State Bar Council lapses if they do not pass the AIBE in two years of enrollment. On March 18th, 2016, a 3-Judge Bench led by former CJI T.S. Thakur referred the case to a 5-Judge Constitution Bench. The Court will decide if the Advocates Act, 1961, allows the BCI to conduct a pre-enrollment examination. 

The Court began hearing the matter on September 27th, 2022. The case was reserved for Judgment on September 28th, 2022. Read more about the case here

Extent of Supreme Court’s power to Directly Hear Cases

On August 12th, 2014, two parties seeking divorce, approached the Supreme Court under Article 142. The Article empowers Supreme Court to pass any orders it feels necessary to do ‘complete justice’.The Court, after granting them divorce, kept the petition pending until it decided the larger questions of whether they could hear matrimonial disputes using their powers under Article 142. 

On June 29th, 2016, the matter was referred to a 5-Judge Bench of the Supreme Court. The case will require the Court to look into the extent of its powers under Article 142 in cases where a marriage is irretrievably damaged. The Court will also decide what powers it has in cases where one of the parties does not want to consent to a divorce.

The Bench began hearing the case on September 28th, 2022. The case was reserved for Judgment on September 29th, 2022. Read more about the case here

Excommunication Of Dissidents From Dawoodi Bohra Community

In 1958, the leader of the Dawoodi Bohra community challenged the Bombay Prevention of Excommunication Act, 1949, which prevented religious denominations from removing or ‘excommunicating’ their members. In 1962, a 5-judge Constitution Bench of the Supreme Court  struck down the Act and held that the power of excommunication is a part of the community’s right to manage its own religious affairs under Article 26(b) of the Constitution. In February 1986, members of the Dawoodi Bohra Community challenged the 1962 decision, asking the Supreme Court to reconsider it. 

Interestingly, the Prevention of Excommunication Act has already been repealed through the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016. However, the case remains pending before the 5-Judge Bench.

On September 20th, 2022, the matter came up before the Constitution Bench led by Justice Kaul. Senior Advocate Siddharth Bhatnagar, appearing on behalf of some members of the Dawoodi Bohra community, argued the court must hear the case as the practice of excommunication is under challenge and not the act itself. Solicitor General Tushar Mehta informed the Court that ​​Constitutional issues do not become outdated, even if parties who initiated the litigation are not interested in pursuing it. The Court will decide if the practice of excommunication is constitutionally valid. 

The Bench is expected to begin hearing the case on October 11th, 2022. 

Adequacy of Compensation Paid to Bhopal Gas Tragedy Victims

In 2010, the Union government filed a petition, seeking additional compensation for victims of the Bhopal Gas Tragedy. The petition claims that the 1989 settlement giving compensation to the victims of Bhopal Gas Tragedy, was ‘seriously impaired’. The Union is seeking further compensation of over ₹7,400 crore from Union Carbide, the US based company that was held responsible for the damage caused. 

Counsels argued that many victims, who initially suffered from simple injuries, developed serious ailments leading to increased costs of treatment. However, the Bench stated that since the petition was filed by the Union government, it was for them to decide if they wished to pursue the matter further.

SG Tushar Mehta informed the Bench that since the matter was listed without prior notice, he will have to seek instructions from the Union government on whether it is still inclined to pursue it. The case will be heard next on October 11th, 2022.

Retrospective Application of Immunity Granted Against Arrest

Section 6A (1) of the Delhi Special Police Establishment Act, 1946, requires the Delhi police to receive approval from the Union government to investigate offences under the Prevention of Corruption Act, 1988. The provision provides immunity to officers at the Joint Secretary level and above from being arrested without the Union Government’s approval. 

However, the Section was held to be unconstitutional by the Supreme Court in Subramanian Swamy v Director, Central Bureau of Investigation (2014). While holding it unconstitutional, the Court did not clarify if the Judgment would apply to cases that are  pending before the Court or if it would apply solely to cases going forward. 

In 2004, Dr. R.R. Kishore, Chief Medical Officer in the Government of Delhi, was arrested by the Central Bureau of Investigation (CBI) for accepting a bribe. Dr. Kishore challenged the arrest on the ground that the CBI did not obtain Union approval under Section 6A (1) to arrest him. 

In 2016, the Court referred the case to a 5-Judge Bench to decide if the authorisation to remove the immunity of Central Government employees at the Joint Secretary level could apply to cases that arose before the provision was struck down.

The Bench decided that it will start hearing the case from November 1st, 2022.