MC Explains: Significant SC constitution benches and judgments expected

Supreme Court

Merely hours after reserving the petitions challenging the abrogation of Article 370, which granted special status to Jammu and Kashmir, the Supreme Court on September 5 announced the formation of a constitution bench to commence hearings on September 20.

While this move is seen as a follow-up on Chief Justice of India (CJI) DY Chandrachud’s promise to keep the momentum going on constitution benches, it may also be noted that the CJI-led constitution bench has reserved judgment in four other major cases.

The CJI has indicated that a constitution bench led by him will hear the Aam Aadmi Party’s (AAP) challenge to the Delhi Services Law, which pertains to the control of administrative services in Delhi.

The two constitution benches, led by the CJI, will have to pronounce the judgment on petitions seeking legal sanction for same-sex marriage by October 20, and petitions challenging the abrogation of Article 370 before winter vacations.

Justice S Ravindra Bhat, who was a part of the constitution bench that heard the same-sex marriage pleas, is set to retire on October 20. Justice Sanjay Kishan Kaul, who was a part of the same-sex marriage bench and the Article 370 bench, is set to retire on December 25.

Considering the importance of both these issues, the judges are expected to deliberate on them for quite some time before passing a judgment.

Constitution benches of the Supreme Court have played a key role in laying down the law of the land ever since India gained independence in 1947. The years following independence saw the maximum number of constitution bench judgments, considering India was a young republic.

Eventually, the frequency of constitution benches reduced as SC’s judgments clarified the laws.

What is a constitution bench?

The benches of the Supreme Court usually sit in combinations of three or two judges. If a case is likely to have a larger national impact, or it is likely to decide the law for good, a constitution bench is formed.

A constitution bench usually sits in a combination of five, seven or nine judges. A larger bench is constituted either depending on the importance of the issue or if there is a need to review the judgment of a smaller bench. For instance, a seven-judge bench is constituted if a need is felt to review the judgment of a five-judge bench.

A 13-judge constitution bench was formed to hear the Kesavananda Bharti case in 1973. The case assumed significance after the apex court decided to examine the powers of the elected representatives to interfere with the fundamental features, which are a part of the basic structure of the constitution. The judgment held that the basic structure of the constitution cannot be modified by Parliament.

In 2017, a nine-judge constitution bench held that the right to privacy is protected by fundamental rights.

Owing to the pandemic, there were no constitution bench sittings for a year from early 2021 to September 2022. However, when UU Lalit took over as CJI, he announced that he plans to ensure that there is a permanent constitution bench in the Supreme Court.

The SC is currently holding constitution benches comprising five judges.

How many constitution bench cases are pending?

As of September 1, there are 440 cases pending. Out of the 440, there are 284 five-judge bench cases, 21 seven-judge bench cases and 135 nine-judge bench cases. According to the Supreme Court, 45 of these cases are main petitions and 395 are connected ones.

However, the constitution bench pendency pales in comparison with the overall pendency of 69,506 cases at the SC. The CJI’s rationale for holding continuous constitution bench hearings is that once a law is laid down in these cases, the pendency across the country is likely to come down.

When a constitution bench judgement is pronounced, it will have a ripple effect on cases pending in High Courts and the district courts since they can clear the cases on the basis of the apex court’s judgment.

Which constitution bench cases are reserved for judgment?

There are a total of five constitution bench judgments that are expected to be pronounced in 2023. Four of them are by a bench led by CJI DY Chandrachud, and one by a bench led by Sanjay Kishan Kaul.

The CJI-led bench has reserved judgment in the following cases:

1.     The validity of group of companies’ doctrine: The case will decide if a non-signatory to an arbitration agreement may be bound by an arbitration agreement, if he is a member of the same group of companies.

2.     Petitions seeking legal sanction for same-sex marriage

3.     Petitions questioning the validity of change in ‘rules of the game’ for recruitments after the process has commenced.

4.     Petitions challenging the abrogation of Article 370 pertaining to Jammu and Kashmir.

On September 11, a bench, led by Sanjay Kishan Kaul, will pronounce judgment in a case that will determine if immunity against arrest extends to pending cases after the provision granting immunity was struck down under the Delhi Police Act.

Cases the constitution bench is expected to hear

 The new constitution bench, led by the CJI, which is expected to commence hearings on September 20, will hear the following cases

a)      Assam Public Works Vs Union of India: This deals with constitutional challenges to Section 6A of the Citizenship Act, 1955, pertaining to illegal migrants to Assam

b)      Ashok Kumar Jain Vs Union of India: This deals with SC/ST reservation in Lok Sabha

c)  Sita Soren Vs UoI: This deals with immunity to MLAs which protects them from prosecution even if the amount was not used to serve the intention of the person giving the bribe.

In addition to this, a CJI-led constitution bench is expected to hear AAP’s challenge to Delhi Services Law.