Supreme Court Constitution Bench Tracker: November - December 2022

As the year draws to a close, the Supreme Court has been consistent in its renewed and enthusiastic approach to hearing Constitution bench matters, for just over 3 months.

The last Constitution bench tracker went through the last half of former Chief Justice of India, UU Lalit's tenure which lasted only for 74 days.

On November 9, current Chief Justice of India DY Chandrachud was sworn in. CJI Chandrachud has a tenure of two years and his first month and a half at the helm of the top court may be a decent indicator as to how hearings, especially those of Constitution bench matters, would look like in the future.

Even before he was sworn in as CJI, the bench led by CJI Chandrachud declared that it would be a completely green bench with no physical papers, documents, or pleading used by the bench.

More such initiatives may be on its way especially since CJI Chandrachud has been heading the Supreme Court's e-committee for a long time.

As on December 1, 2022, 488 Constitution Bench Maters, including 54 main cases, are pending before the top court. There will be a change in this figure as we move into 2023 as verdicts have been delivered in two main five judge bench matters.

Developments in November-December 2022 in a nutshell

Benches - A total of 4 Benches were active, led by CJI DY Chandrachud, and Justices SK Kaul, S Abdul Nazeer and KM Joseph.

Cases - Verdicts were delivered in two cases by the bench led by Justice Nazeer:

• Sukhpal Singh Khair vs Union of India - on the power of trial courts under Section 319 CrPC

• Neeraj Dutta vs NCT Delhi - on deduction of corruption of public servant in absence of direct evidence

Verdicts have been reserved (or remain reserved) in the following cases:

1. Challenge to the Central government's 2016 decision to demonetise the ₹500 and ₹1,000 banknotes;

2. Questions of the freedom of speech and expression of law makers;

3. Challenge to current system of appointments to Election Commission of India;

4.Challenge to validity of All India Bar Exam;

5. Extent of Supreme Court's power under Article 142 to grant a divorce decree;

6. Retrospective application of immunity against arrest;

Verdicts also remain reserved on the question of whether the case regarding the Bohra community's right to excommunicate dissidents, needs to be referred to a nine-judge bench.

Since Justice Nazeer is set to retire from office on January 4, 2023, the judgments reserved by the bench led by him will likely be delivered by then.

Bench wise case updates

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

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 - December 13, 2022.

Status: Pending. Next hearing on January 10, 2023.

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, whether rebel MLAs should be disqualified, 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 - December 13, 2022.

Status: Pending. Next hearing after winter vacation.

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 bureaucrats/ 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.

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

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, on October 11, 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, 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

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 

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 - December 7, 2022

Status: Heard. Verdict reserved. Listed for judgment on January 2, 2023. Central government was directed to hand over some undisclosed documents relating to demonetisation in a sealed cover.

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 - December 6, 2022

Status: Pending. Next hearing after winter vacation.

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: Judgment delivered on December 5, 2022.

The Court held that the power of trial court under Section 319 of the Code of Criminal Procedure (CrPC) to summon a person other than the accused can be exercised before acquittal or before sentence in case of conviction.

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 - December 15, 2022

Status: Judgment delivered on December 15.

The Court held that a public servant can be held guilty under the Prevention of Corruption Act based on circumstantial evidence in the absence of direct evidence.

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

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 title: Karmanya Singh Sareen v. Union of India

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

Status: Pending. Next 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 24, 2022.

Status: Heard. Verdict reserved.

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 - December 8, 2022

Status: Heard. Verdict reserved.

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 - November 23, 2022.

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

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 after winter vacation.