What Are the 25 Constitution Bench Cases SC Will Hear in September?
In an unprecedented move, the SC declared that it will hear 25 pending 5-Judge Bench cases on key constitutional issues
Yesterday, the Supreme Court announced that it will hear 25 pending Constitution Bench cases starting from August 29th, 2022. As leadership shifts from soon to retire Chief Justice N.V. Ramana to Justice U.U. Lalit, the next few months are likely to bring big news from the Supreme Court.
The news about 25 Constitution Bench hearings is particularly notable as Constitution Benches have gradually become a rare sighting at the Supreme Court. They came to a complete standstill during CJI Ramana’s tenure. The last Constitution Bench hearing was in the Maratha Reservations case in June 2021.
Justice Lalit’s two-month tenure as Chief Justice is uncharacteristically short. It appears that clearing the Constitution Bench pendency will be among his top priorities. What questions do the 25 listed cases raise?
1. State of AP v B. Archana Reddy: Declaring All Muslims as ‘Backward Classes’
The Andhra Pradesh government announced reservations in education and public service for the entire Muslim population of the State in 2005. A 5-Judge Bench of the Andhra Pradesh High Court held these reservations to be unconstitutional. The Bench stated that treating the entire Muslim population as a homogeneous backward class was unscientific and violated the right to equality.
In 2006, a 3-Judge Bench of the Supreme Court referred the case to a 5-Judge Bench. This case will require the Court to engage with the meaning of backwardness in Articles 15 and 16. A Judgment from the Supreme Court may clarify some long-standing ambiguities about the purpose of reservations.
2. Shiromani Gurudwara Prabandhak Committee v Shail Mittal: Sikh Reservations in Punjab
The Gurudwara Committee challenged a 2007 Punjab and Haryana High Court Order quashing a 2001 Punjab government notification. The notification allowed the Gurudwara committee to give 50% reservation to Sikh students in the colleges it runs, recognising Sikhs as a minority community in Punjab.
The Supreme Court referred this matter to a 5-Judge Bench in 2010. In this case, the Court must engage with questions of Sikh identity and the definition of a minority. The Constitution Bench will re-examine an earlier 3-Judge Bench Judgment defining minorities in Bal Patil v Union of India (2010).
3. V. Vasanthakumar v H.C. Bhatia: Regional Benches of the Supreme Court
This petition seeks the formation of several regional Benches to hear appeals filed at the Supreme Court. The petitioner argues that this will increase access to the Court and reduce the burden on the Court.
In 2016, a 3-Judge Bench referred this case to 5-Judge Bench. While doing so, the 3-Judge Bench observed that the Court was struggling to perform its function of interpreting the Constitution since its time was spent dealing with a barrage of appeals from all over the country.
4. Janhit Abhiyan v Union of India: Reservations for Economically Weaker Sections (EWS)
On January 9th, 2019, the Parliament of India enacted the Constitution (One Hundred and Third Amendment) Act, 2019 which enabled the State to make reservations in higher education and matters of public employment on the basis of economic criteria alone.
More than 20 petitions have been filed challenging the constitutional validity of the 103rd Amendment. They argue that the Amendment violates the fundamental Right to Equality under Article 14.
On August 5th, 2020, the Court decided to refer this case to a 5-judge bench. Since this reference, the Court has been confronted with another case in which it must decide whether the Union’s Rs. 8 Lakhs annual income criteria for determining EWS status for reservations in NEET admissions is legal. Tune in to our podcast on SCO Explains, to hear Prof. Anup Surendranath from National Law University Delhi discuss the implications of defining backwardness in economic terms. READ MORE
5. Ashok Kumar Jain v Union of India: Validity of Extending Legislative Assembly Reservations Beyond 10 Years
Article 334 of the Constitution provides reservation to Scheduled Caste, Scheduled Tribe, and Anglo-Indian communities in the Union and State Legislative Assemblies. The provision originally provided the reservations for 10 years only. Successive amendments have extended this period. This petition, filed in 2000, challenges the amendments.
The Supreme Court referred the case to a 5-Judge Bench in 2003.
6. Assam Sanmilita Mahasangha v Union of India: Assam Accord
The Bangladesh liberation war led to a massive influx of migrants to India until 1983. In 1983, the Parliament enacted the Illegal Migrants (Determination by Tribunal) Act (IMDT Act). The IMDT Act laid down the procedure to detect illegal immigrants from Bangladesh and expel them from Assam. This Act was applicable to only Assam, while the Foreigners Act, 1946 was applicable to all other states.
In 1985, the Assam Accord was signed between the Government and leaders of the Assam agitation, to end years of rioting and protests against the massive migration. Section 6A of the Citizenship Act, 1955—introduced in 1985—was the legislative enactment of the Assam Accord. The Accord provided a framework for regularising or expelling migrants, based on their date of migration.
Assam Sanmilita Mahasangha, along with other organisations, challenged the constitutional validity of Section 6A of the Citizenship Act, 1955 in 2012. They argue that there is no rational basis for having separate cutoff dates for regularising illegal migrants who enter Assam as opposed to the rest of the country.
In 2014, a 2-Judge Bench of the Supreme Court referred the matter to a larger Constitutional Bench. On 19th April, 2017 a 5-Judge Bench, comprising of Justices Madan B.Lokur, R.K.Agrawal, Prafulla Chandra Pant, D.Y.Chandrachud, and Ashok Bhushan was constituted. All these Judges, except Justice Chandrachud, have since retired without hearing the case. READ MORE
7. Anoop Baranwal v Union of India: Election Commission Appointments
In January 2015, Mr. Anoop Baranwal filed a PIL arguing that the current system of the Executive appointing members of the Election Commission of India (ECI) is unconstitutional and violates Article 342(2) of the Constitution. The PIL seeks an independent, Collegium-like system for ECI appointments. The Union defended the current system, citing the ‘honest record’ of all past Chief Commissioners. It urged the Court to not intervene in this matter.
On October 23rd, 2018, a Bench comprising former Chief Justice Ranjan Gogoi and Justice S.K Kaul referred the matter to a 5-Judge Constitution Bench. READ MORE
8. The Animal Welfare Board of India v Union of India: Constitutionality of Jallikattu
In 2006, the Madras High Court banned the bull-taming sport of Jallikattu from Tamil Nadu. In 2009, the Tamil Nadu government, through the Tamil Nadu Regulation of Jallikattu Act, 2009, allowed the sport and laid down specific guidelines.
In 2011, the Ministry of Environment, Forests and Climate Change (MoEF), prohibited the training and exhibition of bulls. In May 2014, the Supreme Court banned the bull-taming sport and struck down Tamil Nadu’s 2009 Jallikattu Act. It cited the 2011 MoEF notification and the Prevention of Cruelty to Animals Act, 1960.
In 2016, the Ministry of Environment, Forest and Climate Change issued a notification excluding traditional customs, such as Jallikattu, from the restriction on training and exhibiting animals. A year later, the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 stated that the Prevention of Cruelty to Animals Act, 1960, would not apply to Jallikattu.
Organisations such as the Animal Welfare Board of India and People for the Ethical Treatment of Animals challenged the 2017 Act stating that the Supreme Court, in 2014, had already struck down the practice of Jallikattu. Further, that ‘person’ who enjoys the Right to Life should be interpreted to include animals. Practitioners of Jallikattu argue that it is an inherent component of their cultural heritage and is protected under Article 29 of the Constitution.
The case was referred to a 5-judge Bench in 2016.
9. Central Board of Dawoodi Bohra Community v State of Maharashtra: The Religious Right to Excommunicate Dissidents
In 1962, a 5-judge Bench of the Supreme Court struck down the Bombay Prevention of Ex-Communication Act, 1949, which prevented religious denominations from ousting a member of the denomination. The excommunication of a member would effectively bar them from entering the relevant places of worship.
In February 1986, the religious head of the Dawoodi Bohra Community challenged the Act. He argued that the right to excommunicate was crucial to his role as the head of the Community. Further, he stated that by striking down the Act, the Court was denying the Dawoodi Bohra denomination the right to ‘manage its own affairs’ under Article 26. He also argued that the Act impeded their right to practice religion enshrined in Article 25.
Although the Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 repealed the Excommunication Act, the case remains pending before the 5-Judge Bench. The Court will decide the balance of rights between those that are excommunicated and the rights of the religious denomination.
The case has been pending for over 36 years.
10. C.B.I. v R.R. Kishore: Retrospective application of immunity granted against arrest
Section 6A of the Delhi Special Police Establishment Act, 1946, states that when an offence is committed under the Prevention of Corruption Act, 1988, the Delhi Special Police Establishment cannot inquire or investigate the matter without prior approval of the Union Government, specifically if the offences are allegedly committed by Central Government employees at the Joint Secretary level. Section 6A(2) states that prior approval is not required if an arrest is made on the spot while accepting or attempting to receive a bribe.
In this case, Dr. R.R. Kishore, the Chief District Medical Officer, Government of NCT of Delhi, was accused of demanding a bribe. The Central Bureau of Investigation arrested him as he was accepting the bribe. Dr. Kishore challenged the arrests on the grounds that the arrest was meticulously pre-planned, and did not enjoy the exception under Section 6A(2).
The Delhi High Court held that the CBI had begun investigation prior to the arrest, and therefore did not fall under the Section 6A(2) exception. However, the illegality of the arrest did not mean that Dr. Kishore would be discharged—the CBI was directed to seek the Union government’s approval and begin reinvestigation. On January 3rd, 2007, the CBI filed a Special Leave Petition before the Supreme Court.
In Subramanian Swamy v Director, Central Bureau of Investigation (2014) a 3-Judge Bench of the Supreme Court held Section 6A(1) of the Act to be unconstitutional. However, it did not clarify whether the Judgment would apply to cases under Section 61A pending before the Court or if it would solely apply to instances going forward.
In 2016, the Bench in Dr. Kishore’s case referred the case to a 5-Judge Bench to decide if the removal of immunity to Central Government employees at the Joint Secretary level would apply retrospectively. Further, the Constitution Bench will decide how Article 20, which states that a person can be convicted of an offence that violates ‘a law in force at the time of the commission of the act’, would apply in the case.
11. Karmanya Singh Sareen v Union Of India: Whatsapp-Facebook Privacy
On September 6th, 2017, the Supreme Court noted that a Committee of Experts headed by former Supreme Court Justice B.N. Srikrishna would examine issues surrounding data protection in India and suggest a legal framework to govern these issues. So, it deferred the case to another date. Petitioners also sought an interim Order that would stop Whatsapp from sharing data with Facebook while the case was pending before the Court. The Court did not, ultimately, take a decision on the interim order.
12. Sita Soren v Union of India: MLA Bribery
Sita Soren, a member of the Jharkhand Mukti Morcha (JMM), was accused of accepting a bribe to vote for a particular candidate in the Rajya Sabha Elections of 2012. The Central Bureau of Investigation filed an official chargesheet. Sita Soren filed a case before the High Court of Jharkhand claiming that she enjoyed immunity under Article 194(2) of the Constitution. Article 194(2) states that ‘no member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature’.
Further, she argued that a 3-judge Bench in P. V. Narasimha Rao v State (1998) held that parliamentarians enjoyed immunity from criminal prosecution for their speech, vote and related actions.
In 2014, The Jharkhand High Court dismissed the plea filed by Sita Soren. On appeal, the Supreme Court referred the matter to a larger Bench to reconsider the decision in P. V. Narasimha Rao. READ MORE
13. Union of India v Union Carbide Corporation: Adequacy of Compensation Paid to Union Bhopal Gas Tragedy Victims
In December 1984, a lethal gas leak from a Union Carbide Corporation plant killed over 5,000 people in Bhopal.
The settlement amount from the disaster has been challenged numerous times in the Supreme Court. In 1989, the Constitution Bench of the Supreme Court decided on a ₹750 Crore settlement. In 1991, Union Carbide Corporation sought a review, arguing that the Supreme Court had no power to hear and decide the case. The Supreme Court upheld its 1989 Judgment.
In 2007, the Supreme Court decided a case filed by the Bhopal Gas Peedith Mahila Udyog Sanghathan seeking a five-fold increase in the compensation amount. The Court held that a settlement amount was fixed and that it had done everything within its power to ‘streamline’ the claims in the case.
In 2010, the Union of India filed a curative petition seeking that the 1989 settlement was ‘seriously impaired’, and sought additional compensation of over ₹7,400 crore from Union Carbide. The Court will re-examine if the settlement arrived at in 1989 was adequate.
14. State of West Bengal v Paschim Banga B.K. Samity: Application of Land Reforms Beyond Agricultural Land
In 1955, the Union government enacted the West Bengal Land Reforms Act to consolidate land reform laws. The Land Reforms Act imposed different limits on how much land a person could hold, for agricultural and non-agricultural land. Conversion of agricultural land to non-agricultural land became rampant. The West Bengal Land Reforms (Amendment) Acts in 1981 and 1986 attempted to tackle this issue. They effectively removed the distinction made by the original Act, between agricultural and non-agricultural land.
The Amendments were challenged before the High Court, which held that Article 31A applied to the Acts, despite including non-agricultural lands within its purview. It held that the Court could not interfere in a policy matter. However, providing compensation for the acquisition of both types of land solely based on land revenue of agricultural land was unlawful. A 2-Judge and 3-Judge Bench of the Supreme Court referred the case to a 5-Judge Bench in July 2014. The Court will decide the scope of Article 300A and its connection to Articles 31A, 31B, and 31C.
15. Bar Council of India v Bonnie Foi Law College: Validity of All India Bar Exam
In 2010, the Bar Council of India (BCI) introduced the All India Bar Examination. The exam was made mandatory for all those who wished to practice as an advocate. 13 petitions were filed at the Supreme Court challenging the validity of the examination. A 3-Judge Bench led by then CJI T.S. Thakur heard the petitions in 2016.
On March 18th, 2016, the Supreme Court referred the case to a 5-Judge Constitution Bench. The Court will decide whether the Advocates Act, 1961, allows the BCI to conduct a pre-enrollment examination. If they cannot, the Court must further decide whether a post-enrollment examination can be made mandatory instead. The case was last heard on February 5th, 2021.
16. Union of India v Preeti Agarwal: Continuance of Pre-Independence Ordinances
In 1940, the British enacted the India and Burma (Emergency provisions) Act, 1940, which made all ordinances passed during the World War II emergency exempt from any time limitations. This included the Criminal Law Amendment Ordinance, 1944 which is still in effect. The Ordinance allows the government to attach an individual’s property if they are accused of certain offences, such as corruption or embezzlement, against the Government.
The Union of India filed a petition at the Supreme Court arguing that this Ordinance and others like it must be treated as enacted legislations which must be in force until they are repealed. The respondents argue that Article 123 of the Constitution does not allow Ordinances to be in effect past a six-week period. The Supreme Court referred the case to a 5-Judge Constitution Bench on July 17th, 2019, and has not heard it since.
The case will set the standard for how the Supreme Court treats other Ordinances which were passed following the 1940 Act and are still in effect.
17. Sukhpal Singh Khaira v State of Punjab: Court’s Power to ‘Proceed against Other Persons Appearing to be Guilty of an Offence’.
In March 2015, 11 people were accused of offences under the Narcotic Drugs and Psychotropic Substance Act, 1985, the Arms Act, 1959, and the Information Technology Act, 2000. Two years into the criminal investigation, in July 2017, two witnesses who had been examined named five more accused. The prosecution filed an application at a Sessions Court in Punjab under Section 319 of the Criminal Procedure Code. This section allows the Court to summon a fresh accused if there is evidence that they committed the alleged offence along with a person who is already accused in the case.
The Sessions Court convicted the original accused persons in October 2017 and later summoned the five freshly accused. The five new accused persons challenged the summons at the Punjab and Haryana High Court, which dismissed the case and upheld the Sessions Court Order in November 2017.
The five accused persons approached the Supreme Court on November 20th. They argue that the Court cannot exercise its power to identify other accused in a case after it has already delivered the Judgment in the same case. The State of Punjab argued that the application under Section 319 was filed before the Judgment and was separate from the original trial. The Supreme Court referred the case to a 5-Judge Constitution Bench on September 5th, 2019. The case has not been heard since.
18. Tej Prakash Pathak v Rajasthan High Court: Power to Change Eligibility Criteria During Selection Process for a Post
In September 2009, the Rajasthan High Court issued a notification for the recruitment of translators as there were 13 vacancies. The process included a written exam and a personal interview. However, the High Court introduced new criteria for selection, setting a 75% cut-off mark in order to be recruited. Only three candidates qualified out of the 21 who appeared for the recruitment. The unsuccessful candidates filed a petition at the Rajasthan HC challenging the additional criteria. However, the Court dismissed their petition on March 11th, 2010.
On April 21st, 2011, the petitioners approached the Supreme Court, arguing that the Rajasthan HC ‘changed the rules of the game after the game was played’ during the selection process. This was held to be discriminatory and violative of the Right to Equality in K. Manjushree v State of Andhra Pradesh (2009). The Rajasthan HC argued that it was allowed to set a procedure for selection that ensured competent candidates were selected. The Supreme Court referred the questions of whether the new rule was constitutionally valid and whether High Courts can retrospectively introduce rules concerning employment to a 5-Judge Constitution Bench on March 20th, 2013.
19. M/s Shanti Fragrances v Union of India: Sales Tax Matter
In 2000, pan masala and gutka were made taxable under the First Schedule of the Delhi Sales Tax Act, 1975, where previously it was exempt from taxation under the Third Schedule of the same Act, as a ‘Tobacco’ product. Manufacturers and distributors from the pan masala and gutka industry challenged the notification which made their products subject to sales tax.
They argued that the notification ‘ate into’ the exemption for tobacco products and challenged it at the Delhi High Court. On November 5th, 2004, the Delhi High Court dismissed the petition. The petitioners approached the Supreme Court challenging the Delhi HC’s Judgment on March 31st, 2005.
The Union argued that a good can fall under two taxing entries (such as the different schedules of the Delhi Sales Tax Act, 1975) and one is ‘general’ (First Schedule) while the other is ‘specific’ (Third Schedule), and it should be taxed under the specific entry.
The Court is presented with two directly conflicting Judgments in this case. In Commissioner, Sales Tax Uttar Pradesh v M/s Agra Belting Works (1987) the Court held that if a taxation entry is seen to be infringing upon an exemption entry, it means that the legislature intends to withdraw the exemption to make those products taxable. In Kothari Products Ltd. v Government of Andhra Pradesh (2000), the Court held that gutka should be considered a tobacco product under the Act. The Court will decide which tax—under the First or Third Schedules—will prevail. The case was referred to a 5-Judge Bench in July 2017.
20. Sameena Begum v Union of India: Constitutionality of Muslim Marriage Laws
After the practice of talaq-e-biddat (triple talaq) was held to be unconstitutional in 2017, several parties including the Muslim Women’s Resistance Committee and BJP leader Ashwini Kumar Upadhyay filed petitions at the Supreme Court challenging other Islamic marriage practices. Namely, polygamy, nikah-halala, nikah mut’ah and nikah al-misyar. They argue that the constitutional right to Freedom of Religion allows reasonable restrictions to be placed on religious practices for the sake of ‘public order, morality and health’. They further claim that the practices cannot be considered ‘essential religious practices’ under the Freedom of Religion.
The case was referred to a Constitution Bench on March 26th, 2018. The Court will decide the balance between the rights of the individual, particularly women, and religious rights. The case has not been heard since December 2nd, 2019. READ MORE
21. Pyare Lal v State of Haryana: Deciding Key Considerations for Remission Policies
On August 15th, 2019, the Governor of Haryana announced special remission for certain categories of prisoners under Article 161 of the Constitution. Mr. Pyare Lal, one of the released prisoners, previously had his bail application rejected by the Supreme Court in 2017 and was serving a life sentence for murder. The Court, therefore, asked the State of Haryana to clarify whether it can frame such a policy without placing the facts of each case before the Governor. The Bench further questioned whether such a policy could be extended to individuals convicted of murder under Section 302 of the Indian Penal Code, 1860.
On July 17th, 2020, a 3-Judge Bench of the Supreme Court referred the matter to be heard by a 5-Judge Bench.
The case will require the Court to look into the extent of the Executive’s powers to issue a policy through the Governor under Article 161, and whether such exercise of power can override the Code of Criminal Procedure, 1973.
22. Shilpa Sailesh v Varun Sreenivasan: Extent of the Court’s Powers to Directly Hear Cases
The parties involved in the case agreed to dissolve their marriage and approached the Supreme Court, on August 12th, 2014, seeking an order under Article 142 of the Constitution to do so. In May 2015, the Court noted that the marriage between the parties had irretrievably broken down. However, the appropriate Family Court would be unable to grant divorce in a timely manner as Family Courts in the country were clogged with similar cases involving a lengthy process.
The Court dissolved the marriage between the parties but kept the transfer petition pending until other questions that had arisen were decided by the Court. 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 of the Constitution. Primarily, it will consider whether the Supreme Court should exercise this power directly, especially since it would be proper to permit the parties to approach the Court of competent jurisdiction.
23. Vivek Narayan Sharma v Union of India: Validity of the 2016 Demonetisation Policy
On November 8th, 2016, the Government of India issued a notification announcing the demonetisation of all ₹500 and ₹1,000 banknotes along with restrictions on the withdrawal of cash in the country. On the following day, a writ petition was filed challenging the validity of the notification under the Reserve Bank of India Act, 1934, as well as Articles 14, 19, 21 and 300A of the Constitution. The petition questioned the procedural and substantive reasonableness of the notification, whether it had any basis in law, and whether it was Constitutionally valid, among others.
On December 16th, 2016, a 3-Judge Bench of the Supreme Court transferred all pending demonetisation writ petitions before various High Courts across the country to itself. It observed that the petition also raised further questions on the Court’s powers to review matters of economic policy by the Government and referred the matter to a 5-Judge Bench.
The case will determine the scope of judicial review in matters relating to finance and economic policy of the Government and whether political parties can raise such issues before the Supreme Court.
24. Kaushal Kishore v State of Uttar Pradesh: State Responsibility and the Freedom of Speech and Expression
On July 29th, 2016, a young girl and her mother were allegedly gang-raped while travelling through Bulandhsahr in Uttar Pradesh. When the victims filed an FIR, then Uttar Pradesh Minister and Samajwadi Party leader Azam Khan made a statement claiming that the complaint was the result of a political conspiracy against the government.
On August 12th, 2016, the victims filed a writ petition before the Supreme Court seeking action against the Minister and requested the Court to transfer the case to another State. They argued that the comments by the Minister created fears over the absence of a fair investigation within the State.
The Supreme Court ordered Mr. Azam Khan to submit an unconditional apology. Further, the Court observed that the case raised substantial questions over the restrictions on the Right to Freedom of Speech, the duty of the State to affirmatively protect its citizens, and whether an exercise of the right by a Minister could be held attributable to the State.
On October 5th, 2017, the matter was referred to a 5-Judge Bench of the Supreme Court. The matter was last heard on October 22nd, 2020, and is currently waiting for the availability of the Attorney General to conclude the hearing.
The case will decide the extent and restriction on the Right to Freedom of Speech exercised by State officials. Additionally, it will determine the accountability of the State for the exercise of the right by State officials. READ MORE
25. Common Cause v Union of India: Euthanasia and the Right to Die With Dignity
In 2002, Common Cause, a registered society, wrote to the Ministries of Law and Justice, Health and Family, and Company Affairs, as well as State Governments, on the issue of the right to die with dignity. In 2005, Common Cause approached the Supreme Court praying for the right to die with dignity to be declared a fundamental right under Article 21 of the Constitution. They argued that denying the right to die with dignity to terminally ill patients extends their suffering and that they should be allowed to make an informed choice through a living will.
On February 25th, 2014, a 3-Judge Bench of the Supreme Court referred the matter to a larger bench. On March 9th, 2018, a 5-Judge Bench held that the right to die with dignity is a fundamental right. An individual’s right to execute advance medical directives is an assertion of the right to bodily integrity and self-determination and does not depend on any recognition or legislation by a State.
As the matter is already decided, the reason for including it in the present list of cases is unclear. READ MORE