Two five-judge Constitutional Benches of the Supreme Court heard at least eight matters early this week and fixed timelines for final hearings in these cases. Some of these long pending matters have been languishing in cold storage for more than a decade.
15 years after it was posted for reference before a five-judge bench, the Constitution Bench led by Chief Justice of India (CJI) UU Lalit will start hearing arguments on September 14 on whether Muslims can be declared as a socially and educationally backward class in Andhra Pradesh. Since the issues are overlapping, the bench said it will also deal with challenges to reservations given to the Economically Weaker Section (EWS) of the society.
Schedule and timelines for other constitutional bench matters were also decided, kickstarting CJI Lalit's plan to dispose pending matters. A Constitution Bench led by Justice Indira Banerjee deferred challenges to Muslim Law practices of polygamy and nikah halala post-Dusshera holidays in October. However, considering Justice Banerjee will retire on September 23, the bench will probably be led by a different judge.
The judiciary is plagued by pending cases and the Supreme Court is not exempt. According to statistics, as on August 1, there were 71,411 pending cases in the Supreme Court. Of these, 53 matters with 492 tagged appeals are pending before Constitution Benches with 41 cases before five-judge benches, and seven and five cases listed before seven and nine-judge benches respectively.
A Supreme Court bench comprising five or more judges is called a Constitution Bench. Cases involving substantial questions of law pertaining to the interpretation of the Constitution are heard by these benches.
74 days tenure, 25 Constitution Bench matters and a Court of Appeals
CJI Lalit, a third-generation lawyer and second-generation judge, assumed office with 74 days in his tenure, however, with the festival season coming up, effectively he has only 45 working days. By listing 25 appeals, CJI Lalit has not only set the stage for his relatively short tenure but has also succeeded in taking on a little over 50 percent of the pending constitution bench cases. In fact, at CJI Ramana's farewell on August 26, CJI Lalit announced his intent to establish a permanent constitution bench throughout the year even before he assumed office as the top judge.
CJI Lalit's move is as noteworthy as it is ambitious. From 134 constitution bench judgments in the 1960s to just two in 2021, Constitution Benches are becoming rare. In fact, the last constitution bench matter was decided in June 2021 when the Supreme Court dismissed the review of the Maratha Reservation case where it had held that exceeding the 50 percent ceiling limit for reservations violated fundamental rights.
Under now-retired CJI Ramana's tenure, no Constitution Bench matters were heard. In September 2021, a Constitution Bench was established to hear the dispute between Gujarat Urja Vikas Nigam Ltd. and Adani Power (Mundra Limited). However, the bench was dissolved four months later when the parties agreed to an out-of-court settlement.
It is perhaps difficult to establish Constitution Benches considering 85 percent of the Supreme Court's docket is swamped with appeals that can be heard by division benches comprising two judges.
Constitution Benches would tie up a minimum of five judges in one matter alone. In fact, one of the 25 issues a constitution bench will decide is the creation of regional Benches—a sort of court of appeals—to hear appeals filed at the Supreme Court.
Demonetisation, illegal immigrants, and animal welfare, BOOM looks at a few Constitution Bench matters that will be heard.
Was demonetisation legal?
On November 8 2016, Prime Minister Narendra Modi-led government scrapped all ₹500 and ₹1,000 banknotes with a few hours' notice. A day later, a plea questioned the constitutional validity of Modi's move while also questioning the procedural and substantive reasonableness of the notification.
On December 16th, 2016, Supreme Court transferred to itself all demonetisation cases pending before the high courts and referred the matter before a five-judge bench. The Constitution Bench will determine the scope of judicial review in the government's financial and economic policies and if political parties can raise such issues before the Supreme Court.
Supreme Court will consider whether privacy policies rolled out by WhatsApp and Facebook—now Meta—violate its users' right to privacy. Since 2014, WhatsApp's privacy policies have undergone several revisions offering lower privacy protections for Indian users as compared to its European users.
In 2016, Delhi High Court upheld WhatsApp's right to revise its policies periodically or in the event of a sale/merger. In April 2017, the high court judgement was challenged in the Supreme Court and the matter was referred to a five-judge constitution bench.
However, the matter was deferred after the Supreme Court noted that a committee led by its ex-judge BN Srikrishna was examining issues pertaining to data protection and would suggest a legal framework for the same.
The top court is now free to decide on this issue considering the Ministry of Information and Technology (MeitY) in the Parliament's recently concluded Monsoon Session withdrew its 2019 Data Protection Bill with the promise of a better proposal.
Bans, and revivals – the Jallikattu saga
Since 2006 at least, Jallikattu, a popular bull-taming sport in Tamil Nadu has been facing bans (in the years 2006, 2011, 2014) and revivals (in 2009, 2016 2017) at the hands of the Madras High Court, Supreme Court, state governments and the Centre.
In 2017, the Animal Welfare Board of India (AWB) and People for the Ethical Treatment of Animals (PETA) challenged the Prevention of Cruelty to Animals (Tamil Nadu Amendment) Act, 2017 which said traditional customs like Jallikattu were exempt from restrictions on training and exhibiting animals.
Electoral Bonds, Abrogation of Article 370, UAPA, CAA: Matters that missed the bus
As the master of the roster, CJI Lalit is ultimately responsible for directing the Supreme Court's registry to list cases. Even as CJI Lalit has undertaken the herculean task of disposing of matters of constitutional importance, several matters that need urgent intervention have been overlooked.
The constitutional validity of electoral bonds, abrogation of Article 370, and the subsequent decision to change Jammu and Kashmir from a state into two union territories, the challenge to the Citizenship Amendment Act, 2019 and the Unlawful Activities (Prevention) Act, 1967 need to be considered.
Though the above mentioned issues are contentious and under challenge, there is no stay on any of the provisions. The sale of electoral bonds continues, cases under UAPA get registered, and it has been three years since the existence of the union territories of Jammu and Kashmir and Ladakh.
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