In the midst of the recurring debate on what its role in the Indian polity ought to be, what is arguably the core function of the Supreme Court is often forgotten. Apart from safeguarding the liberties of the citizens of the country (some would argue, disproportionately), the chief role of the Apex Court is to interpret the Constitution of India.
It is for this reason, and when there are conflicting judgments of benches of lesser strength, that a Constitution Bench of the Supreme Court is formed. Since the matters decided by these benches are unlikely to be overruled for a long time, one can safely say that Constitution Benches wield great power and responsibility in fixing the path that the law is to take.
In this pandemic-hit year, Constitution Benches of the Supreme Court delivered eight decisions - not much in the way of putting a dent in the dozens of matters pending before benches of five judges or more. Even so, the previous Chief Justice’s plan to set up a permanent Constitution Bench to decide these matters remains dead in the water.
On the occasion of Constitution Day 2020, we take a look at how Constitution Benches of the Supreme Court have interpreted the Constitution and put to rest the confusion surrounding various statutory provisions. We will also offer a glimpse into Constitution Bench matters that will likely come up for hearing in the near future.
1. Fixed period of anticipatory bail [Sushila Aggarwal vs State (NCT of Delhi)]
Bench: Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, SR Bhat
At the start of this year, the Court cleared the confusion over whether the protection given to a person through anticipatory bail should exist for a fixed period.
Reiterating the law laid down in the 1980 judgment in the case of Gurbaksh Singh Sibbia and others v. State of Punjab, which was also delivered by a Constitution Bench, the Court clarified:
There is nothing in the Code of Criminal Procedure (CrPC) to indicate that the grant of pre-arrest/anticipatory bail should be time-bound.
However, the concerned court has the discretion to impose conditions for the grant of anticipatory bail, including a limited duration of protection, on a case-to-case basis, depending on the stage at which the application for anticipatory bail is moved.
As a normal rule, there should be no such time-limit imposed in granting the pre-arrest protection.
The duration of an anticipatory bail order does not normally end when the accused is summoned by the court. However, it is open to the Court to impose additional restrictions if there are peculiar circumstances warranting the same.
2. Reference of Article 370 challenge to larger Bench (Dr Shah Faesal & Ors v. Union of India)
Bench: Justices NV Ramana, Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai, Surya Kant
A five-judge Constitution Bench held that there was no need to refer the petitions challenging the abrogation of Article 370 of the Constitution to a larger Bench.
These petitions were filed after two Presidential orders of August 5 and August 6 of 2019 paved the way for the abrogation of Article 370 and the subsequent bifurcation of the erstwhile State into two Union territories.
The Bench found no contradiction between the Supreme Court's judgments of Prem Nath Kaul v. State of Jammu & Kashmir and Sampat Prakash v. State of Jammu & Kashmir, both of which dealt with interpretations of Article 370.
3. Compensation under Land Acquisition Act (Indore Development Authority v. Manoharlal and Ors etc)
Bench: Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, SR Bhat
In March, the Court overruled all precedents pertaining to the interpretation of Section 24 of the Land Acquisition Act, 2013
The Court held that under Section 24(1)(a) of the Land Acquisition Act, in case the award is not made as of January 1, 2014 (date of commencement of the 2013 Act), there will be no lapse of proceedings and the compensation will have to be determined as under the 2013 Act.
In case the award is passed within the window of five years, then proceedings shall continue as under 24(1)(b) of 2013 Act "under the Act of 1894 as if it has not been repealed". The period of five years mentioned here excludes the period of time covered under any interim orders passed by the Courts, the Apex Court clarified.
Effectively this means that there will be no lapse of proceedings in case where:
possession of the land is taken, and compensation is not paid.
possession of the land is not taken, and compensation is paid.
Moreover, if a person is tendered compensation under Section 31(1) of the Act of 1894, it is not open to him to claim lapse of acquisition due to non-payment or non-deposit of compensation. The obligation of the government to pay is complete on tendering the amount under Section 31(1)
Conflicting interpretations of this Section led to a reference being made to this Constitution Bench. The conflict was between the judgments in Pune Municipal Corporation v. Harakchand Misrimal Solanki of 2014 and Indore Development Authority v. Shailendra (D) thr LRS of 2018.
However, the issue may not be settled just yet. Chief Justice of India SA Bobde recently hinted that an aspect of the Court's judgment on the interpretation of Section 24 of the Land Acquisition Act needs some clarification.
4. Striking down 100% reservation in Scheduled Areas (Chebrolu Leela Prasad Rao & Ors. v. State of AP & Ors)
Bench: Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, Aniruddha Bose
In a controversial decision, the Court held that a government order passed by the erstwhile State of Andhra Pradesh allowing for 100% reservation in teaching posts for Scheduled Tribes in scheduled areas was illegal and impermissible.
The Court said that providing 100% reservation is "not permissible under the Constitution of India" and specified that the outer limit for reservations as laid down in the Indra Sawhney judgment stands at 50%. The Court also added that the notification was violative of Articles 14 and 16(4) of the Constitution.
The Court also imposed costs of Rs 5 lakh to be shared by present day States of Andhra Pradesh and Telangana.
A review petition was later filed against the Supreme Court's judgment passed in April this year.
5. Pricing of sugarcane (West UP Sugar Mills Association v. State of Uttar Pradesh)
Bench: Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, Aniruddha Bose
As an example of the wide variety of matters that come up before Constitution Benches, the Court ruled that there is no conflict between the minimum prices of sugarcane set by a State and the Centre, till the time the price set by the former is higher than that set by the latter.
It was ruled that the Central government has complete authority to set the statutory minimum price and that State governments can fix an advisory price, which needs to be higher than the one fixed by Centre.
In effect, the Court upheld the Supreme Court's five-judge Bench verdict in UP Cooperative Cane Unions Federation v. West UP Sugar Mills Association.
6. Functioning of co-operative banks (Pandurang Ganpatii Chaugule v. Vishwasrao Patil Murgud Sahakari Bank Limited)
Bench: Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, Aniruddha Bose
In an important judgment for rural and semi-urban India in particular, the Court ruled that cooperative banks come under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Act 2002 (SARFAESI Act).
The Bench held that co-operative banks are "banks" for the purposes of Section 2(1)(c) of the SARFAESI Act, and that the recovery procedure u/s 13 of the Act is also applicable to such banks. Further, it was clarified that co-operative banks involved in banking activities are covered u/s 5(c) & 56(a) of the Banking Regulation Act, 1949 which is a legislation relatable to Entry 45 of List I.
In effect, the Court held that co-operative banks cannot carry on any activity without compliance of provisions of the 1949 Act and any other legislation applicable to such banks and the RBI Act.
7. Informant and investigation officer under NDPS Act [Mukesh Singh v. State (Narcotic Branch of Delhi)]
Bench: Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, SR Bhat
At a time when the crackdown on drugs in high places became the centre of the media’s focus, the Court held that a person accused for an offence under the Narcotics Drugs and Psychotropic Substances Act (NDPS Act) is not entitled to acquittal on the ground that the informant and the investigating officer are the same.
The Court held that there is no automatic apprehension of bias when the informant and the investigation officer (IO) is the same, and such cases will have to be decided on a case-to-case basis.
In 2018, a three-judge Bench of the Supreme Court had held that the trial stands vitiated in case the informant and the IO are the same. This judgment was passed in the case of Mohanlal v. State of Punjab. The correctness of Mohanlal judgment was, however, questioned by a two-Judge Bench in the case of Mukesh Singh v. State (Narcotic Branch of Delhi), leading to the reference to the Constitution Bench.
8. Reservation for in-service medical officers in postgraduate degree courses (Tamil Nadu Medical Officers’ Association & Ors v. Union of India & Ors)
Bench: Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, Aniruddha Bose
The Court held that the Medical Council of India (MCI) has no power to make any provision for reservation for in-service medical officers in respect of postgraduate degree courses in medical colleges.
The Court further held:
MCI provisions cannot affect the provisions under the legislative framework.
States will be within their power to provide for reservation for in-service officers
States should provide for such reservation after requiring candidates to serve in rural, tribal, hilly areas etc.
The Court also clarified that the ruling will only have prospective effect, clarifying that "any admissions given earlier taking a contrary view shall not be affected by this judgment.”
Apart from these, three other matters that were listed before the Constitution Bench headed by Justice Arun Mishra remain undecided. These are:
Kaushal Kishor v. State of Uttar Pradesh: A case filed by a relative of the Bulandshahr rape accused. The petitioner had sought action against then Uttar Pradesh Minister Azam Khan for his remarks on the incident. In this matter, important questions pertaining to comments made by persons holding public offices in rape and other heinous offences were referred to a Constitution Bench.
CBI v. RR Kishore: This case pertains to Section 6A(1) of the Delhi Special Police Establishment Act, 1946. The Section deals with obtaining prior approval of the Central government for conducting any inquiry into an offence under the Prevention of Corruption Act, 1988 (PC Act) where the allegations have been made against officers of the level of Joint Secretary and above. In 2014, the Supreme Court had struck down the said section as unconstitutional. The question that is now being considered is whether the operation of that said judgment is retrospective or not.
Aziz Qureshi v. Union of India: This case relates to the interpretation of Article 156 of the Constitution, which lays down the term of office of the Governor. The petition itself was filed by former Uttarakhand Governor Aziz Qureshi in 2014. He had alleged that there was a move by the Narendra Modi government to ease him out of office.
In view of Justice Mishra’s retirement earlier this year, the matters are likely to come up before a newly formed Constitution Bench.
In the months to come, burning issues that have sparked widespread debate among the citizenry are likely to be heard and decided by Constitution Benches of the Supreme Court. These include the challenge to the validity of the Constitution (One Hundred and Third) Amendment Act, which introduced 10% reservation for the Economically Weaker Sections (EWS); the matters relating to the abrogation of Article 370; and the reference made in the Sabarimala review case. The Court had also hinted that the petitions challenging the constitutional validity of the Citizenship Amendment Act may be heard by a Constitution Bench.
Given the significance of these matters, it will be interesting to see how Constitution Benches will determine the course of India's history in the near future.