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Kumar Kartikeya and Kamya Wahal

Justice U.U. Lalit was appointed as 49th Chief Justice of India, on 27th of August 2022. A few days before his appointment his voice started to echo in the hallowed halls of the Supreme Court, with his determination to reform and aim to dispose of cases quickly. After taking over, Justice Lalit called a full court meeting which lasted for three and half hours. Every judge was heard fully, there was a thorough discussion to fast-track the listing and hear long pending cases. A full court meeting of such significance was never held in the recent history of the Supreme Court of India.

What was most important was the Supreme Court's announcement of hearing Constitutional benches matter after the 29th of August under the supervision of the Chief Justice of India. The CJI is reported to have said that every judge in the Supreme Court should have an opportunity to sit on the Constitution Bench.

What Is A Constitution Bench Of The Supreme Court?

Constitution benches are the benches of the Supreme Court with at least five judges sitting together to deliberate on Constitutional queries. When a significant legal dispute has to be resolved or a provision of the Constitution needs to be interpreted, Article 145(3) of the Constitution permits the establishment of a Bench of 5, 7, or 9 Judges, etc to do so. Ordinarily, the Supreme Courts' benches are Division benches or three judges' combinations.

The constitution benches are assembled when the court is of the opinion that-:

  1. The case involves a substantial question of law pertaining to the interpretation of the Constitution.
  2. The President of India has sought the Supreme Court's opinion on a question of fact or law under Article 143 of the Constitution.
  3. Two or three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, thus warranting a definitive pronouncement by a larger bench and,
  4. A later three-judge bench doubts the correctness of a judgment delivered by a previous three-judge bench of the Supreme Court and decides to refer the case to a larger bench for a reconsideration of the issue involved.

If any of these conditions under Article 145(3) prevail, the Chief Justice of India is vested with the power to constitute the constitutional benches.

In PradipChandra Parija and Ors vs Pramod Chandra Patanaik And Ors (2001), the constitution bench of the Supreme Court held that judicial discipline and propriety demanded that a bench of two judges should follow a decision of a bench of three judges. But, if a bench of two judges concludes that an earlier judgment of three judges is incorrect and that in no circumstances, can it be followed, then the proper course for it was to refer the matter to another bench of three judges which would review the earlier three-judge bench judgment and if that bench also concludes that the earlier judgment of a bench of three judges was incorrect, then the reference to a Bench of five Judges is justified.

To overturn any judgment pronounced by the Constitution bench, one must first persuade a subsequent five-judge Supreme Court bench to the effect that the prior judgment was incorrect, and convince them that there is a necessity to have an authoritative pronouncement by a larger bench of seven judges, and then persuade that larger bench of seven judges to change its previous decision by a bench strength of nine and so on.

Constitutional Bench Pendency And Stalemate Since 2019

The Supreme Court of India came into existence in 1950 via Article 130 of the Indian Constitution. It was established as a constitutional court to deal with the questions of the interpretation of the constitution. With time, the court took the role of an appellate court rather than a constitutional court, as it was in the past.

From 134 in the 1960s to barely 2 in 2021, the average number of Constitution Bench judgments every year has decreased drastically, but it was conspicuous that the last CJI failed to constitute benches and hear cases. Outgoing CJI N.V. Ramana, who had a tenure of 1 year and 4 months, did not constitute any constitutional bench to hear very important unresolved questions of the law.

Some of the important cases that awaited a constitution bench decision during former CJI Ramana were:

    1. Manohar Lal Sharma v Union of India (Abrogation of Article 370 in Jammu and Kashmir)
    2. Janhit Abhiyan v Union of India (Challenge on 103rd amendment Economically Weaker Sections Reservation)
    3. Sameena Begum v Union of India (Constitutionality of Muslim Marriage Law)
    4. Sajal Awasthi v Union of India (Constitutionality of UAPA Amendment)
    5. Kantaru Rajeevaru v Indian Young Lawyers' Association (Sabarimala Review)
    6. Association for Democratic Reforms v Union of India (Challenge to Electoral Bonds)
    7. V. Vasanthakumar v H.C. Bhatia: (Regional Benches of the Supreme Court)

These cases have been pending for almost 5 years, with an average of 3 years of pendency. At present, there are a total of 54 main and 439 connected constitutional matters to be heard by the Supreme Court. In the last 3 to 4 years there has been almost no progress in the cases that are to be heard by constitutional benches.

New Chief Justice Of India U.U. Lalit Is Striving To Change Things

Justice Lalit advocated for the establishment of permanent Constitution benches., further even stated that there will be a listing of 25 constitution bench matters post 29th of August.

The 25 Constitution Bench cases listed are:

B. Archana Reddy Vs. State of Andhra Pradesh

The Supreme Court will hear the challenge to the High Court of Andhra Pradesh's five-judge bench decision, which declared the "Andhra Pradesh Reservation of Seats in Educational Institutions and of Appointments/Posts in Public Services under the State to Muslim Community Act, 2005" unconstitutional. The court will look into the definition of backwardness and can an entire community be called backward. On 6th of September, 2022 the bench said it would decide on this matter after the EWS reservations(Janhit Abhiyan v Union of India) hearing is completed.

Shiromani Gurudwara Prabandhak Committee v Shail Mittal

This case involves an appeal filed by the Shiromani Gurudwara Prabandhak Committee (SGPC) contesting the ruling of the Punjab and Haryana High Court regarding minority quota reservations for Sikh students at SGPC-managed colleges. The Apex court will look into the definition of minority and Sikh identity.

Janhit Abhiyan v Union of India

The Constitution (One Hundred and Third Amendment) Act, 2019, was passed giving the State the power to impose reservations in higher education and public employment only based on economic factors. The constitutionality of the 103rd Amendment has been contested in more than 20 petitions. They contended that the Amendment transgressed Article 14's basic right to equality. This case is currently being heard by the Constitution Bench headed by Justice Lalit on a day-to-day basis

Ashok Kumar Jain v Union of India

This petition deals with the constitutionality of the Constitution (79th Amendment) Act, 1999. The amendment substituted the words "sixty years" for "fifty years" in Article 334 of the Constitution. Article 334 provides for the reservation of seats for SC/ST and special reservations in Parliament and assemblies. The constitutional bench will start the final hearing on this matter on the 1st of November 2022.

Assam Sanmilita Mahasangha v Union of India

The question in front of the constitutional bench is whether the phrase "every person born in India" refers only to Indian citizens and whether the phrase "either of whose parents is a citizen of India at the time of his birth" in Section 3(1)(b) of the Citizenship Act, 1955 refers only to a person born to parents, one of whom is a citizen and the other a foreigner, provided he or she has entered India lawfully and his or her stay in India is not illegal.

The Animal Welfare Board of India v Union of India.

According to the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017, The Prevention of Cruelty to Animals Act, 1960 would not apply to traditional customs such as Jallikattu. Aggrieved by this, the Animal Welfare Board of India went to court arguing that the Supreme Court had previously invalidated the practice of Jallikattu in 2014. A bench of CJI Dipak Misra and Justice Rohinton Nariman felt the writ petition involving Jallikattu raised significant questions relating to constitutional interpretation and referred the matter to the constitution bench, which framed five questions to decide on in addition to those raised in the writ petitions.

Anoop Baranwal v Union of India

This PIL relates to a requirement of having a full-proof and better system of appointment of members of the Election Commission. The Apex Court had observed that the matter requires a closer look and interpretation of the provisions of Article 324 of the Constitution of India.

Central Board of Dawoodi Bohra Community v State of Maharashtra

The petition seeking re-consideration and overturning of the Apex Court's decision in 'Sardar Syedna Taher Saifuddin Saheb Vs. The state of Bombay' then issued a writ of mandamus directing the State of Maharashtra to give effect to the provisions of the Bombay Prevention of Excommunication Act, 1949. Notably, the Supreme Court held by a 4: 1 majority that the Bombay Prevention of Excommunication Act was unconstitutional because it violated Article 26 (b) of the Constitution and was not protected by Article 25(2). The Court will decide the balance of rights between those that are excommunicated and the rights of the religious denomination. This matter was taken up by the constitution bench on 20th of September 2022.

C.B.I. v R.R. Kishore

Section 6A(1) of the DPSE Act shows that immunity has been guaranteed for personnel at the level of Joint Secretary and above. In the framework of Article 20 of the Indian Constitution, the moot point to be dealt with by the court is whether such immunity can be deprived by a retrospective operation of a judgment of the court.

Karmanya Singh Sareen v Union of India

This is a special leave petition filed in response to the Delhi High Court's decision in the Whatsapp Privacy case. Karmanya Singh Sareen and Shreya Sethi have challenged the popular mobile application WhatsApp's privacy policy. The Supreme court hears this SLP on the grounds that Whatsapp is violating the right to privacy of its users by permitting it to share data with Facebook and all its group companies for commercial advertising and marketing.

Sita Soren v Union of India

This appeal deals with the question of whether Article 105/194 (2) of the Constitution of India confers any immunity to the Members of Parliament/Legislative Assembly from being prosecuted for an offense involving the offer or acceptance of a bribe to cast a vote in a legislature. The Constitutional bench is also tasked to review P.V. Narasimha Vs State((1998) 4 SCC 626).

Union of India v Union Carbide Corporation

The Union of India filed a curative appeal in 2010 claiming that the 1989 settlement was "seriously compromised" and asking for further compensation from Union Carbide in the amount of over 7,400 crores. Centre said that the earlier settlement was based on incorrect assumptions about the number of deaths, injuries, and losses, and has not taken into account the subsequent environmental degradation. The sufficiency of the settlement reached in 1989 will be re-evaluated by the Constitutional Bench. On the 20th of September, 2022, the constitution bench sought a response from the centre on the curative petition and listed it for the 11th of October, 2022.

State of West Bengal v Paschim Banga B.K. Samity

The West Bengal Land Reforms Act was passed in 1955 by the Union government to codify land reform regulations. Different restrictions on how much land a person might own, for both agricultural and non-agricultural property, were introduced by the Land Reforms Act. It became commonplace to convert agricultural land to non-agricultural property. This problem was addressed in part by the West Bengal Land Reforms (Amendment) Acts of 1981 and 1986.

This was challenged in the High court and the High court opined that it cannot interfere in a policy matter. Though the High Court observed that providing compensation for the acquisition of both types of land solely based on land revenue of agricultural land was unlawful. The Supreme court deals with the scope of Article 300A in association with 31A/B/C.

Bar Council of India v Bonnie Foi Law College

The All-India Bar Examination was first offered in 2010 by the Bar Council of India (BCI). All candidates who wanted to work as advocates had to take the exam. If the Advocates Act of 1961 permits the BCI to conduct a pre-enrollment examination, the Court will rule on that issue. The court shall start the hearing on this matter on the 27th of September, 2022.

Union of India v Preeti Agarwal

A two-judge bench raised the question of, "whether the ordinance and its continuance ad infinitum as a law made by the Executive, would be contrary to the basic features of separation of powers and the scheme of checks and balances inscribed in the polity the Constitution has adopted". The Apex Court opined that deciding the constitutional questions involved in the present case would have serious ramifications on other pre-constitution laws which continue to be in force under Article 372 of the Constitution of India.

Sukhpal Singh Khaira v State of Punjab

11 persons were accused under different sections of the NDPS act, Arms act, and IT act. It was found during the investigation that there were 5 more accused in the same case. Sessions court convicted the original mentioned accused and then summoned five new accused in the same matter. Which was challenged by the new accused in Punjab & Haryana High Court and the High Court upheld the sessions court's judgment of summoning the fresh five accused in the matter.

Later, the five new accused aggrieved with the order, reached the Supreme court arguing that the court cannot identify a new accused in a matter where the court has already delivered the judgment, the state of Punjab argued that application u/S 319 was filed before the judgment was delivered by the court.

Tej Prakash Pathak v Rajasthan High Court

Tej Prakash Pathak specifically questioned the correctness of K. Manjusree v. State of Andhra Pradesh in which it was held that "introducing the requirement of the minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played, which is impermissible." The Supreme Court referred to the questions of whether the new rule was constitutionally valid and whether High Courts can retrospectively introduce rules concerning employment. This case was posted before the Constitution Bench headed by Justice Indira Banerjee, but due to the shortage of time, the case could not be taken up. The constitution bench has placed the case before the CJI for the constitution of the new bench.

M/s Shanti Fragrances v Union of India

The Constitution bench was supposed to determine whether the conflicting rulings in Commissioner, Sales Tax UP v. M/s Agra Belting Works, Agra(1987 SCC (3) 140) and Kothari Products Ltd. v. The Government of AP((2000) 9 SCC 263) is right. In the Kothari Products case, a three-judge bench had ruled that an entry under a sales tax legislation that solely states rate cannot be used to eat into an exemption entry. In the Agra Belting Works, the charging section, the rate of tax section, and the exemption section are all parts of one scheme, and the legislature intended for the exemption to be withdrawn when a notification under the rate of tax section was issued after a notification exempting certain goods, making the sale of those goods subject to tax.

The constitution bench delivered its judgment on the 19th of September, 2022, where the bench held that there is no dispute between the Kothari Products and Agra Belting Works cases and it should be decided by a three-judge bench.

Sameena Begum v Union of India

This writ petition deals with Muslim marriage laws. Various Islamic marital traditions specifically, polygamy, nikah mut'ah, nikah al-misyar, and nikah halal were questioned after the practice of talaq-e-biddat (triple talaq) was deemed unlawful in 2017. The court faced the question as to whether appropriate limitations can be imposed on religious activities for "public order, morals, and health" without violating the constitutional right to freedom of religion and whether acts do fall under the definition of "essential religious activities'' as defined by the Freedom of Religion Act. The constitution bench was constituted on 30th August 2022. Since Justice Indira Bannerjee is due to retire on the 23rd of September 2022, the matter will not be heard in September.

Pyare Lal v State of Haryana

This appeal questions the extent of the executive's powers to issue a policy through the Governor under Article 161, and whether the such exercise of power can override the Code of Criminal Procedure, 1973. A three-judge bench led by Justice UU Lalit referred a significant legal question concerning the constitutionality of the Haryana Government's policy enabling the premature release of life prisoners above the age of 75. The matter was last heard by the constitution bench on the 6th of September 2022.

Shilpa Sailesh v Varun Sreenivasan

The parties to the matrimonial dispute went up to the Supreme Court for an order under Article 142 of the Constitution to dissolve their marriage. The Court observed that the couples' marriage had irretrievably fallen apart and the competent family court was not able to grant a divorce in time thus the top court had to use its jurisdiction under 142.
The court also stated that it will look into the extent of its power under article 142 and whether it will be reasonable for the top court to exercise its powers directly under 142 when the parties have remedies available through a court of competent jurisdiction before coming to the Supreme Court. A constitution bench of the supreme court will start hearing on the 28th of September,2022.

Vivek Narayan Sharma v Union of India

Following demonetization, various petitions were filed in the Supreme Court to challenge the policy of the state. The petitions addressed significant legal issues, such as whether the policy was issued unilaterally by the government without adequate engagement with the RBI. On November 25, 2016, the Supreme Court agreed to investigate its legality. The Supreme Court directed that no other Court shall entertain, hear, or decide any Writ Petition on the issue or in relation to or arising from the Government of India's decision to demonetize the old Rs.500/- and Rs.1000/- notes, as the entire issue is pending consideration before this court. The court faces the question of whether there is a scope of judicial review in matters relating to finance and economic policy of the Government.

Kaushal Kishore v State of Uttar Pradesh

This appeal arises from the Bulandshahar rape incident where the state minister Azam Khan rejected the incident of rape as a "political conspiracy and nothing else." The questions were raised in front of the supreme court via a petition where amicus curiae Fali Nariman and Harish Salve framed questions that concern the status of a public servant vis-à-vis fundamental rights contained in the Constitution. Later, the AG asked the court, 'Whether greater restrictions on Article 19(1)(a) can be imposed if it entails persons holding high office?'

Common Cause v Union of India

This matter has already been decided by a Constitution Bench in 2018, but the court has notified its hearing. This matter concerns the right to a dignified death. Common Cause in a petition to the Supreme Court in 2005, prayed that Article 21 of the Constitution be used to declare the right to a dignified death a basic right. They stated that giving terminally ill people the option to pass away with dignity increases their suffering and that they should be allowed to make an educated decision through a living will.

V. Vasanthakumar v H.C. Bhatia

This petition seeks the formation of regional benches of the Supreme court. The petitioner has contended that establishing regional benches will reduce the burden of the court and increase access to the top court.

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