Supreme Court Constitution Bench Tracker: October-November 2022

In October-November 2022, the judgment in the challenge to EWS reservation was delivered while verdicts remain reserved in three other cases.
Constitution Bench
Constitution Bench

When Chief Justice of India (CJI) UU Lalit spoke at the farewell function organised for him by the Supreme Court Bar Association on November 7, he exuded a sense of accomplishment around the system of constitution bench hearings that was set up and functioned throughout his tenure of 74 days.

Until CJI Lalit took office, constitution bench matters had remained stagnant, especially during the COVID-19 pandemic period. In the last two months, the regular sittings of the Constitution Benches has garnered appreciation from all spheres, but especially the legal community.

Pending Constitution Bench matters as of November 1, 2022
Pending Constitution Bench matters as of November 1, 2022https://main.sci.gov.in/statistics

As of November 1, 2022, 489 Constitution Bench Maters, including 54 main cases, are pending before the top court. The addition of one main case can be attributed to the recent referral of the issue of framing guidelines on how and when mitigating circumstances are to be considered during trial in death penalty cases.

In this monthly series, we will track the status of the hearings before the Constitution Benches.

Developments in October-November 2022 in a nutshell

Benches - A total of 5 Benches were active. Upon the retirement of CJI Lalit on November 8, the Bench led by him was dissolved. The cases pending before said bench have not yet been reassigned.

Cases - The verdict in the EWS reservation case, Janhit Abhiyan v Union of India, was delivered. Verdicts have been reserved (or remain reserved) in the following cases:

Bench wise case updates

Bench : CJI UU Lalit and Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and JB Pardiwala

Dissolved on November 8, 2022 upon CJI Lalit's retirement

CJI UU Lalit led Constitution Bench
CJI UU Lalit led Constitution Bench

Reservation for Economically Weaker Sections (EWS)

Question of law: Challenges to the validity of the Constitution (One Hundred and Third) Amendment Act, 2019, which provides reservation for EWS.

Cause title: Janhit Abhiyan v. Union of India

Registered: January 15,2019 | Admitted - August 6, 2020 | Reserved Verdict - September 27, 2022

Status: Judgment delivered on November 7, 2022, CJI Lalit's last working day in office.

The 103rd Constitutional Amendment was upheld by a 3:2 majority through four separate judgments. Justices Maheshwari, Trivedi and Pardiwala delivered the majority opinion finding that the EWS reservation did not violate the basic structure of the Constitution. CJI Lalit and Justice Ravindra Bhat dissented.

Bench: CJI DY Chandrachud, and Justices MR Shah, Krishna Murari, Hima Kohli, PS Narasimha

CJI DY Chandrachud led Constitutiton Bench
CJI DY Chandrachud led Constitutiton Bench

1. Citizenship Act

Question of law: Challenge to Section 3(1)(a) of Citizenship Act, 1955 and 6A of Citizenship Act, 1985 that provides a framework for regularising or expelling migrants, based on their date of migration.

Cause title: Assam Sanmilita Mahasangha v. Union of India

Registered: December 20, 2012 | Admitted - November 5, 2015| Last listed - November 1, 2022

Status: Pending. Next hearing on December 13, 2022.

2. Maharashtra Political Crisis vis-à-vis Eknath Shinde, Uddhav Thackeray and Shiv Sena split

Question of law: Challenge to the formation of the Eknath Shinde-led BJP government in Maharashtra, the disqualification of rebel MLAs, and the right over the Shiv Sena's bow-and-arrow symbol.

Reconsideration of decision in Nabam Rebia v. Deputy Speaker, with regard to the power of the Deputy Speaker to initiate disqualification proceedings.

Cause title: Subhash Desai v. Principal Secretary, Governor of Maharashtra & Ors.

Registered: July 9, 2022 | Admitted - September 7, 2022| Last listed - November 1, 2022.

Status: Pending. Next hearing on November 29. Advocates Fuzail Ayyubi and Deeksha Rai appointed as nodal counsel.

3. Delhi government v. Lieutenant Governor

Question of law: Tussle between the Central and Delhi governments over the administrative control on transfers and postings of officers in Delhi.

Cause title: Government of NCT of Delhi v. Union of India

Registered: September 5, 2016 | Admitted - September 9, 2016 | Last listed - November 9, 2022

Status: Pending.

4. Extending Legislative Assembly reservation for more than 10 years

Question of law: Challenge to the Constitution (79th Amendment) Act, 1999 which extends the reservation of seats in the Lok Sabha and Legislative Assemblies of the States to Anglo Indians, Scheduled Castes and Scheduled Tribes communities.

Cause title: Kumar Jain v. Union of India

Registered: October 17, 2000 | Admitted - February 26, 2016 | Last listed - November 1, 2022

Status: Pending. Next hearing on November 29, 2022. Advocate Punit Jain appointed as nodal counsel.

Bench: Justices SK Kaul, Sanjiv Khanna, Abhay S Oka, Vikram Nath, JK Maheshwari

Justice SK Kaul led Constitution Bench
Justice SK Kaul led Constitution Bench

1. Validity of All India Bar Exam (AIBE)

Question of law: Are Rules 9 to 11 of the Bar Council of India Rules violative of Section 16, 24 and 30 of the Advocates Act and Articles 14 and 19(1)(g) of the Constitution?

Cause title: Bar Council of India v. Bonnie Foi Law College

Registered: September 4, 2009 | Admitted - September 9, 2022 | Last listed - September 28, 2022

Status: Heard. Verdict reserved.

2. Bohra community's right to excommunicate dissidents

Question of law: Do religious communities have the right to excommunicate dissidents under Articles 25 and 26 of the Constitution of India?

Cause title: Central Board of Dawoodi Bohra Community & Anr v. State of Maharashtra & Anr

Registered: February 28, 1986 | Admitted - October 1, 2019 | Last listed - October 11, 2022

Status: Pending. Respondents urged the Court to wait for a nine-judge bench decision in the Sabarimala matter or refer the present case also to a nine-judge bench. The Court reserved its verdict on whether to refer the matter to a larger bench.

3. Compensation paid to Bhopal Gas tragedy victims

Question of law: Was the settlement arrived at in 1989 for the lethal gas leak from the Union Carbide Corporation Plant was adequate?

Cause title: Union of India v. Union Carbide Corporation

Registered: January 31, 2011 | Admitted - January 28, 2020 | Last listed - November 1, 2022

Status: Pending. Next hearing on January 10, 2023. Attorney General to file a joint compilation to press curative petition within 8 weeks. Court to consider if impleading applicant NGOs could be of assistance.

4. Retrospective application of immunity against arrest of lawmakers

Question of law: Would the removal of immunity to Central government employees at the Joint Secretary level under the Delhi Special Police Establishment Act apply retrospectively?

Cause title: CBI v. RR Kishore

Registered: March 12, 2007 | Admitted - November 3, 2015 | Last listed - November 2, 2022

Status: Heard. Verdict reserved.

5. Court's power under Article 142 of Constitution

Question of law: What is the extent of the Supreme Court's powers under Article 142, to dissolve marriage by granting a decree of divorce when one or more parties are not consenting to the same?

Cause title: Shilpa Sailesh v. Varun Sreenivasan

Registered: August 19, 2014 | Admitted - March 24, 2021 | Last listed - September 29, 2022

Status: Heard. Verdict reserved.

Bench: Justices S Abdul Nazeer, BR Gavai, AS Bopanna, V Ramasubramanian, BV Nagarathna 

Justice S Abdul Nazeer led Constitution Bench
Justice S Abdul Nazeer led Constitution Bench

1. Validity of 2016 Demonetisation

Question of law: Challenge to the Central government's 2016 decision to demonetise the ₹500 and ₹1,000 banknotes.

Cause title: Vivek Narayan Sharma v. Union of India

Registered: November 10, 2016 | Admitted - September 28, 2022 | Last listed - November 9, 2022

Status: Pending. Next hearing on November 24, 2022. Central government sought further time to file a reply prompting the bench to remark on the embarrassment caused to the Court by such adjournment requests.

2. Freedom of speech and expression of law makers

Question of law: Questions on 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.

Cause title: Kaushal Kishor v. State of Uttar Pradesh

Registered: August 20, 2016 | Admitted - October 23, 2019 | Last listed - November 15, 2022

Status: Heard. Verdict reserved.

3. MLAs' immunity from prosecution for bribery

Question of law: Does the immunity conferred on Members of the Legislative Assembly (MLAs), under Article 194(2) of the Constitution in respect of any vote given by them in the legislature, include immunity against prosecution for bribery?

Cause title: Sita Soren v. Union of India

Registered: March 7, 2019 | Admitted - December 4, 2018 | Last listed - November 15, 2022

Status: Pending. Next hearing on December 6, 2022. Senior Advocate PS Patwalia was appointed amicus curiae in the matter.

4. Section 319 Code of Criminal Procedure (CrPC)

Question of law: Can a court exercise its power to identify other accused in a case after it has already delivered the judgment in the same case?

Cause title: Sukhpal Singh Khaira v. State of Punjab

Registered: May 10, 2019 | Admitted - Not available | Last listed - November 17, 2022

Status: Heard. Verdict reserved.

5. Deduction of corruption of public servant in absence of direct evidence

Question of law: In the absence of evidence of complainant or direct or primary evidence of demand of illegal gratification, is it permissible to draw inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution

Cause title: Neeraj Dutta v State of NCT of Delhi

Registered: August 31, 2009 | Admitted - August 31, 2009| Last listed - November 17, 2022

Status: Pending. Next hearing on November 22, 2022.

Bench: Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy, CT Ravikumar

Justice KM Joseph led Constitution Bench
Justice KM Joseph led Constitution Bench

1. WhatsApp's privacy policy

Question of law: Does WhatsApp's privacy policy (introduced in January 2021) violate the right to privacy which is a facet of the right to life under Article 21 of the Constitution of India?

Cause titleKarmanya Singh Sareen v. Union of India

Registered: January 9, 2017 | Admitted - February 25, 2020 | Last listed - September 29, 2022

Status: Pending. Final hearing on January 17, 2023.

2. Appointments to Election Commission of India (ECI)

Question of law: Challenge to the current system of appointing members of the ECI on the ground that the executive enjoys the power to make appointments in violation of Article 342(2) of the Constitution of India.

Cause title: Anoop Baranwal v. Union of India

Registered: February 25, 2015 | Admitted - February 25, 2020 | Last listed - November 17, 2022

Status: Pending. Next hearing on November 22, 2022.

3. Jallikattu - bull taming sport

Question of law: Challenge to validity of amendments made by the Tamil Nadu government to the Prevention of Cruelty to Animals Act (PCA Act), thereby permitting Jallikattu.

Cause title: Animal Welfare Board of India v. Union of India

Registered: January 11, 2016 | Admitted - September 29, 2022 | Last listed - September 29, 2022

Status: Pending. Final hearing on November 23, 2022.

4. Euthanasia and right to die with dignity

Question of law: The matter was decided by a five-judge Constitution Bench in 2018 when it recognised and gave sanction to passive euthanasia and living will/advance directive. However, it has been listed again to address some legal questions surrounding euthanasia.

Cause title: Common Cause v. Union of India

Registered: August 21, 2019 | Admitted - November 26, 2019 | Last listed - September 29, 2022

Status: Pending. Final hearing on November 23, 2022

5. Validity of arbitration agreement in unstamped contract

Question of law: Is an arbitration agreement embedded in an unstamped document valid and enforceable?

Cause title: Global Mercantile Private Ltd v. M/s Indo Unique Flame Limited

Registered: November 23, 2020 | Admitted - November 23, 2020 | Last listed - September 29, 2022

Status: Pending. Next hearing on December 12, 2022. Senior Advocate Gourab Banerji appointed amicus curiae.

Since two Benches, those led by CJI Lalit and Justice Indira Banerjee have been dissolved since the revival of Constitution Bench hearings in late August, the following cases that were listed previously are now unassigned.

1. Changing rules of the game during selection process

Question of law: Can the criteria for appointment to a post can be altered by the authorities concerned in the middle or after the process of selection has started?

Cause title: Tej Prakash Pathak v. Rajasthan High Court

Registered: March 20, 2013 | Admitted - March 20, 2013 | Last listed - September 13, 2022

Status: Pending, to be placed before CJI for constitution of appropriate bench.

2. Muslim marriage laws permitting polygamy

Question of law: Challenge to the constitutionality of the practice of polygamy, nikah halala, nikah mut'ah and nikah al-misyar.

Cause title: Sameena Begum v. Union of India

Registered: March 16, 2018 | Admitted - August 30, 2022 | Last listed - August 30, 2022

Status: Pending, notice issued. On August 30, the Bench noted that the matter would take a while to be decided, since multiple customs are under challenge. Final hearings after October 15.

3. Remission policy

Question of law: Can a policy can be framed in exercise of powers under Article 161, whereby the executive can grant remission without placing records before the Governor?

Cause title: Pyare Lal v. State of Haryana

Registered: July 4, 2017 | Admitted - July 4, 2017 | Last listed - September 13, 2022

Status: Pending. Directions issued to list before appropriate bench in October.

4. Declaring Muslims as a whole as SEBC

Question of Law: Can Muslims, as a community, be declared socially and educationally backward class (SEBC) as per Articles 15 and 16 of the Constitution?

Cause title: State of Andhra Pradesh v. B Archana Reddy

Registered: December 14, 2005 | Admitted - February 29, 2016 | Last listed - September 6, 2022

Status: Pending, No orders.

5. Reservation for Sikhs in Punjab

Question of law: Challenge to notification declaring Sikh educational institutions in Punjab to be ‘minorities’, thereby, permitting them to reserve 50 percent seats for members of the Sikh community.

Cause title: Shiromani Gurudwara Prabandhak Committee v. Shail Mittal

Registered: January 31, 2008 | Admitted - January 11, 2016 | Last listed - August 30, 2022

Status: Pending, adjourned.

6. Regional benches of Supreme Court for appeals

Question of law: Demand for Courts of Appeal with exclusive jurisdiction to hear and finally decide appeals from High Courts.

Cause title: V Vasanthakumar v. HC Bhatia

Registered: January 15, 2016 | Admitted - February 26, 2016 | Last listed - August 30, 2022

Status: Pending, adjourned.

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