The year 2022 has seen formation of multiple Constitution Benches and its hearings, wherein out of pending 498 Constitution Bench matters, 25 matters were listed before the Supreme Court from 29-08-20221 The matters involve issues relating to validity of All India Bar Exam, WhatsApp privacy policy, challenge to demonitisation policy, constitutionality of Muslim marriage laws, grant of minority status to Sikhs in Punjab etc.
Since 2022, the Constitution Benches sit every day, and their hearings are live telecasted. This change has been brought by former Chief Justice of India Uday Umesh Lalit, who once said that he has never seen two constitution benches at the same time in the Supreme Court, adding that every Supreme Court judge is “good enough” to be given equal chance to become a part of the Constitution Benches.2
Here is a brief recap of all the developments advanced by the constitution benches of the Supreme Court this year:
In absence of complainant’s direct evidence of bribe, presumption of Public Servant’s guilt can be drawn based on other evidence
The 5-Judge Constitution Bench comprising of SA Nazeer, BR Gavai, AS Bopanna,V Ramasubramanian and BV Nagarathna, JJ has answered an important question pertaining to the Prevention of Corruption Act, 1988. Justice BV Nagarathna wrote this judgment.
Issue
In the absence of the complainant letting in direct evidence of demand owing to the non-availability of the complainant or owing to his death or other reason, whether the demand for illegal gratification could be established by other evidence as in the absence of proof of demand, a legal presumption under Section 20 of the Act would not arise.
Held
In the absence of evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inference of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act, based on other evidence adduced by the prosecution.
The trial does not abate, nor does it result in an order of acquittal of the accused public servant if the complainant turns ‘hostile’ or has died or is unavailable to let in his evidence. Read more
[Neeraj Datta v. State, 2022 SCC OnLine SC 1724 , decided on 15-12-2022]
Section 319 CrPC power to be exercised before pronouncement of order of sentence or acquittal, as the case may be; SC enumerates 12 guidelines
Three important questions relating to Section 319 CrPC have been answered by the 5-judge bench of SA Nazeer, BR Gavai, AS Bopanna, V. Ramasubramanian and BV Nagarathna, JJ after, on 10.05.2019, a division Bench of NV Ramana and MM Shantagoudar, JJ observed that the question regarding the actual stage at which the trial is said to have concluded is required to be authoritatively considered since the power under Section 319 of CrPC is extraordinary in nature.
Issues
- Whether the trial court has the power under Section 319 of CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?
- Whether the trial court has the power under Section 319 of the CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?
- What are the guidelines that the competent court must follow while exercising power under Section?
Answering the first issue, the Court has held that in the case of conviction, the power under Section 319 of CrPC is to be invoked and exercised before the pronouncement of the order of sentence. The summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. Read more
[Sukhpal Singh Khaira v. State of Punjab, 2022 SCC OnLine SC 1679, decided on 05.12.2022]
Constitutionality of 10% Quota for EWS upheld in 3:2 verdict
The 5-judge constitution Bench of UU Lalit, CJ and Dinesh Maheshwari, S. Ravindra Bhat, Bela M Trivedi, JB Pardiwala, JJ. has upheld the constitutional validity of the Constitution (One Hundred and Third Amendment) Act, 2019, which provides for 10 percent reservation in appointments to posts under the State and in admissions to educational institutions to economically weaker sections (‘EWS’) of citizens. While Dinesh Maheshwari, Bela M Trivedi and JB Pardiwala, JJ wrote separate but concurrent opinions forming majority, S. Ravindra Bhat, J. wrote the minority opinion for himself and U.U. Lalit, CJ.
Issues
- Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservations, based on economic criteria?
- Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions?
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Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation?
Majority Opinion
- The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservations, based on economic criteria.
- The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions.
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The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation. Read more
Dissenting opinion
While there was no disagreement on question number 1 that the addition, or insertion of the ‘economic criteria’ for affirmative action in aid of the section of population who face deprivation due to poverty, in furtherance of Article 46, does not per se stray from the Constitutional principles, so as to alter, violate, or destroy its basic structure, Bhat, J, writing for himself and Lalit, CJ, expressed inability to concur with the views expressed by the majority opinion on the validity of the 103rd Amendment on Question No. 3, as:
“for the first time, in the seven decades of the republic, sanctioned an avowedly exclusionary and discriminatory principle. Our Constitution does not speak the language of exclusion. In my considered opinion, the amendment, by the language of exclusion, undermines the fabric of social justice, and thereby, the basic structure”. Read more
[Janhit Abhiyan v. Union of India, 2022 SCC OnLine SC 1540, decided on 07-11-2022]
Binding nature of a judgment depends on the Bench Strength and not the numerical strength of the Judges taking majority view
The 5-judge Constitution Bench of Indira Banerjee, Hemant Gupta, Surya Kant, MM Sundresh and Sudhanshu Dhulia, JJ has explained the doctrine of precedents. While Indira Banerjee,J. wrote the judgment for Surya Kant, MM Sundresh and Sudhanshu Dhulia, JJ.; Hemant Gupta, J. wrote the concurring opinion for himself.
Held: The numerical strength of the Judges taking a particular view is not relevant, but the Bench strength is determinative of the binding nature of the Judgment. Read more
[Trimurthi Fragrances (P) LTD v. Government OF N.C.T. of Delhi, 2022 SCC OnLine SC 1247 decided on 19-09-2022]
List of pending cases3
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Vivek Narayan Sharma v Union of India |
The validity of the 2016 demonetisation policy is challenged. A 3-Judge Bench of the Supreme Court had referred the matter to a 5-Judge Bench. The Supreme Court will be delivering the verdict on 02-01-2023. |
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State of Andhra Pradesh v B. Archana Reddy |
Andhra Pradesh High Court has declared the “Andhra Pradesh Reservation of Seats in the Educational Institutions and of appointments or posts in the Public Services under the State to Muslim Community Act, 2005” as unconstitutional and violative of Articles 15(4) and 16(4) of the Constitution. A 3-Judge Bench of the Supreme Court had referred the matter to a 5-Judge Bench |
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Shiromani Gurudwara Prabandhak Committee v Shail Mittal |
The Gurudwara Committee challenged Punjab and Haryana High Court order quashing a Punjab government notification allowing the Gurudwara committee to give 50% reservation to Sikh students in its colleges, thus, recognising Sikhs as a minority community in Punjab Sikh reservations in Punjab. The Supreme Court had referred this matter to a 5-Judge Bench. |
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V. Vasanthakumar v H.C. Bhatia |
Formation of regional benches of the Supreme Court. |
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Ashok Kumar Jain v Union of India |
Reservation to Scheduled Caste, Scheduled Tribe, and Anglo-Indian communities in the Union and State legislative assemblies is originally provided for 10 years only, and successive amendments have extended this period. Thus, this petition was filed, challenging the validity of extending legislative assembly reservations beyond 10 years. |
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Assam Sanmilita Mahasangha v Union of India |
In 2012, Assam Sanmilita Mahasangha, along with other organisations, challenged the constitutional validity of Section 6-A of the Citizenship Act, 1955 stating 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. A 2-Judge Bench of the Supreme Court had referred the matter to a larger Constitution Bench. |
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Anoop Baranwal v Union of India |
A petition was filed, stating that the current system of the executive appointing the members of the Election Commission is unconstitutional and violates Article 342(2) of the Constitution. It seeks an independent, collegium-like system for the said appointments. |
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The Animal Welfare Board of India v Union of India: |
Supreme Court banned the bull-taming sport and struck down Tamil Nadu’s 2009 Jallikattu Act. However, the Ministry of Environment, Forest and Climate Change issued a notification excluding traditional customs from the restriction on training and exhibiting animals. Further, the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 stated that Prevention of Cruelty to Animals Act, 1960, would not apply to Jallikattu. |
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Central Board of Dawoodi Bohra Community v State of Maharashtra: |
In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2) SCR 496 , a 5-judge bench struck down the Bombay Prevention of Ex-Communication Act, 1949, which prevented religious denominations from expelling a member of their denomination. In 1986, the religious head of the Dawoodi Bohra Community challenged the Act. The Maharashtra Protection of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 repealed this impugned Act, still the case remains pending. |
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C.B.I. v R.R. Kishore |
A 5-Judge Bench will decide if Section 6-A of the Delhi Special Police Establishment Act, 1946, (‘DSPE’) (when an offence is committed under the Prevention of Corruption Act, 1988, the DSPE cannot inquire about the matter without prior approval of the Union Government) is retrospectively applied to Central Government employees at Joint Secretary level. |
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Karmanya Singh Sareen v Union of India |
WhatsApp was offering lower privacy protections for Indian users as compared to European users. Thus, a 5-Judge Bench will decide if WhatsApp’s privacy policy violates the right to privacy provided under the right to life.
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Sita Soren v Union of India |
A 5-Judge Bench will reconsider the decision in P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626 |
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Union of India v Union Carbide Corporation |
A petition was filed, challenging the adequacy of compensation paid to Bhopal gas tragedy victims. The bench will re-examine whether the settlement arrived at in 1989 was adequate. |
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State of West Bengal v Paschim Banga B.K. Samity |
The bench will decide the scope of Article 300A and its connection to Articles 31A, 31B, and 31C. |
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Bar Council of India v Bonnie Foi Law College |
The Bench will decide whether the Advocates Act, 1961, permits the Bar Council of India to conduct a pre-enrollment examination. . |
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Union of India v Preeti Agarwal |
Article 123 of the Constitution does not allow ordinances to be in effect after a six-week period. However, a petition was filed by the Union, arguing that pre-Independence ordinances must be treated as enacted legislations which must be in force until they are repealed. |
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Sukhpal Singh Khaira v State of Punjab |
In this case, the accused persons argued that the Court cannot exercise its power to proceed against other persons in a case after it has already delivered the Judgment in the same case. The 2-Judge Bench had referred the matter to a larger Constitution Bench.
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Tej Prakash Pathak v Rajasthan High Court |
The issue was whether the High Courts can retrospectively introduce rules concerning employment, as in this case the Rajasthan High Court has changed the eligibility criteria during the selection process for a post. The 3-Judge bench had referred the matter to a larger Constitution Bench. |
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M/s Shanti Fragrances v Union of India |
Manufacturers and distributors from the pan masala and gutka industry challenged the notification which made pan masala and gutka subject to sales tax. The 2-Judge Bench had referred this case to a larger Constitution Bench. |
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Sameena Begum v Union of India |
Constitutionality of Muslim marriage laws. A 3-Judge Bench had referred the matter to a Constitution Bench of appropriate strength. |
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Pyare Lal v State of Haryana |
In 2019, the Governor of Haryana announced special remission for certain categories of prisoners under Article 161 of the Constitution The bench will 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. A 3-Judge Bench had referred the matter to a larger Constitution Bench. |
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Shilpa Sailesh v Varun Sreenivasan |
The bench will look into the extent of its powers under Article 142 of the Constitution. A 2-Judge Bench had referred the matter to a Constitution Bench of appropriate strength. |
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Kaushal Kishore v State of Uttar Pradesh |
The bench will decide whether the right to free speech and expression, especially of those in public office, may be restricted by the right to dignity. |
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Subhash Desai v. Principal Secretary, Governor of Maharashtra |
A 5-Judge Bench to decide questions relating to disqualification; Speaker/Governor’s powers; Judicial Review, etc. |
*Apoorva Goel, Editorial Assistant has put this report together.
1. 25 Constitution Bench cases listed from August 29, The Hindu.
2. Enjoyed journey of 37 years in Supreme Court: CJI U U Lalit, The Print.
