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Supreme Court Data Portal

History of Constitution Benches

Under Article 145(3) of the Constitution, matters ‘involving a ­substantial question of law as to the interpretation of the Constitution’ are required to be decided by a minimum of five judges. These benches of the Supreme Court, often involving five, seven or nine judges, are called Constitution Benches.

Over the course of India’s history, these Constitution Benches have settled key questions involving individual rights and separation of powers thereby fundamentally shaping India’s rule of law framework. Some key issues such as the immutable nature of the fundamental rights under the Indian Constitution (Kesavananda Bharti v State of Kerala), limitation on the imposition of President’s Rule (S.R. Bommai v Union of India), clarifications on the law on personal liberties (Maneka Gandhi v Union of India) and deciding how territorial boundaries of India’s states should be demarcated (In re: Berubari Union) have been decided by Constitution Benches.

In the recent past too, they have been the harbinger of progressive change. Some of these landmark cases involve the decriminalisation of homosexuality (Navtej Singh Johar v Union of India), the declaration of the right to privacy as a fundamental right (Justice (Retd.) K.S. Puttaswamy v Union of India) and the declaration of the ban on women of all ages from entering the Sabarimala temple as violative of their fundamental rights (Indian Young Lawyers Association v State of Kerala).

Previous research on Constitution Benches

While a significant amount of literature has been individually published about the jurisprudence these landmark cases helped create, empirical research on the functioning of these benches is few and far between. Recognising this lacuna, Nick Robinson and others conducted a study, a decade ago, examining all the constitution benches that had been set up since India’s independence until the end of 2009. The research studied voting patterns, the length of judgments, foreign citations and winning party among others. In the recent past, shorter pieces that examine the judgments delivered by these benches have also been published. There is also an ongoing project which studies the Supreme Court, which in its research also touches upon constitution benches. However, none of the above studies comprehensively examine all the cases pending before these benches or conduct an analysis of the associated aggregate statistics. This Constitution Bench Pendency Project is an attempt to plug this gap.

Pendency before the Constitution Bench

As a part of the process of consolidating the cases before it, the Supreme Court now regularly publishes statistics on the number of pending cases, including the number of pending constitution bench cases. These numbers are also bifurcated into the number of main and connected matters. The itemised list on the other hand, is available at the terminal cause list published on the website. Unfortunately however, during the course of our research we found that the list of cases on the terminal causelist fluctuated sporadically without any of the missing cases being heard in court. To ensure a fixity and authority in numbers, we filed an RTI application with the Supreme Court. The results in the present portal reflect the cases pending before the Supreme Court as on 17 November 2022. However, cases disposed of till 7 November, 2022 have been excluded from the dataset. A culmination of this exercise found that there are 45 main constitution bench matters pending before the Supreme Court. Since quite often, one case might dispose of multiple connected matters, a total of 612 cases are pending before these benches.

The JALDI Constitution Bench Tracker

The present tracker examines these cases and hopes to provide the user an in-depth understanding of each of these cases in an accessible form. For every case, the portal explainsthe timelines of events and orders, information on facts, questions of law, arguments, precedents and legislations under challenge. The further readings section hopes to act as a resource for those individuals looking to explore these cases in even more detail. The portal also charts the tagged matters and the pendencies. Since the research mentioned above has found that the number of these benches has consistently dwindled over time, we hope that this portal highlights the need for this particular aspect of the Supreme Court’s pendency to be addressed with gravity. We think that these cases require special emphasis since they involve critical questions of law that only the Supreme Court in its judgment and eminence can resolve.

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Acknowledgments

A large team worked to turn the Constitution Bench Pendency Project (“Project”) into a reality. Prashant Reddy T. (former Lead, Justice, Access and Lowering Delays in India Initiative (JALDI) at Vidhi) and Nayantara Vohra (former Associate Fellow, JALDI) were part of the initial stages of this project including scoping the cases from the terminal list and collating the orders from the Supreme Court website. 

Apoorva (Research Fellow) and Vaidehi Misra (Senior Resident Fellow), under the guidance of Deepika Kinhal (Team Lead and Senior Resident Fellow) led the project in conceptualising and designing the process for creating summaries of these cases. 

Along with them, Aditya Ranjan and Shreya Tripathy (Research Fellows) and Reshma Sekhar (Senior Resident Fellow) helped review the cases that were summarised by the Kautilya Fellows. Vidhi’s Kautilya Society chapters in various law schools across the country are designed to work both independently as well as with Vidhi researchers on real-world research projects.

The following Kautilya Fellows were instrumental to the preparation of this project and the JALDI team would like to thank them for their immense contribution. They are: Abin Thomas Alex, Adhipatya Singh, Akanksha Yadav, Amrashaa Singh, Ankita Gupta, Anukriti Randev, Arjun Butani, Prajwal Venkatesh, Sanskruti Yagnik, Shivani Jaideep Karnik and Soumya Jain. Sanjeev Gumpenapalli, an intern at Vidhi Karnataka also assisted in the research.

Naxcent has helped design and execute our ideas into the format of the Portal. Finally, the JALDI team would like to thank ATECF and the Tree of Life Foundation for the support and grant under which this Project has been funded. 


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Raw Case Summaries

Case Link to Summary
Kantaru Rajeevaru v. Indian Young Lawyers Association
Mineral Area Development Authority etc. v. M/S Steel Authority of India
Property Owners Association v. State of Maharashtra
State of Uttar Pradesh v. M/s. Lalta Prasad Vaish
State of Uttar Pradesh v. Jai Bir Singh
Aligarh Muslim University v. Naresh Agarwal
Arjun Flour Mills v. State of Orissa
N. Ravi v. Speaker, Legislative Assembly, Chennai
Rojer Mathew v. South Indian Bank Limited
The State of Punjab v. Davinder Singh
Animal Welfare Board of India v. Union of India
Anoop Baranwal v. Union of India, Ministry of Law and Justice Secretary
Ashok Kumar Jain v. Union of India
Ashwini Kumar Upadhyay v. Union of India
Assam Public Works v. Union of India
Bar Council of India v. Bonnie Foi Law College
C.B.I. v. Dr. R.R. Kishore
Central Board of Dawoodi Bohra Community v. State of Maharashtra
Janhit Abhiyan v. Union of India
Karmanya Singh Sareen v. Union of India
Kaushal Kishore v. State of Uttar Pradesh
M/s Shanti Fragrances v. Union of India
Mukesh Kumar v. V. K. Singh
Pyare Lal v. State of Haryana
Shilpa Sailesh v. Varun Sreenivasan
Sita Soren v. Union of India
State of Andhra Pradesh v. B. Archana Reddy
State of Punjab v. Sahil Mittal
State of West Bengal v. Paschim Banga BK Samity
Sukhpal Singh Khaira v. State of Punjab
Suvarna Paka Jagga Rao v. Chebrolu Leela Prasad Rao
Tej Prakash Pathak v. Rajasthan High Court
Union of India v. Union Carbide Corporation
Union of India v. Preeti Agarwal
Vivek Narayan Sharma v. Union of India


Assam Public Works v. Union of India

W.P.(C) No. 274/2009

Timeline

  1. Date of Institution of Writ Petition
  2. Date for reference to a five-judge bench
  3. Last date of hearing
    Current Status: Pending

Bench Composition

Bench Status

Last listed before
Hon’ble Justice
S. A. Bobde
Hon’ble Justice
B. R. Gavai
Hon’ble Justice
Surya Kant
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Hon’ble Justice S. A. Bobde

  • Born on 24.04.1956 at Nagpur, Maharashtra, son of Shri Arvind Shriniwas Bobde.
  • Took B.A. and LL.B. Degrees from Nagpur University.
  • Enrolled on the Roll of the Bar Council of Maharashtra in 1978
  • Practiced Law at the Nagpur Bench of the Bombay High Court with appearances at Bombay before the Principal Seat and before the Hon’ble Supreme Court of India for over 21 years. Designated as Senior Advocate in 1998.
  • Elevated to the Bench of the Bombay High Court on 29th March, 2000, as Additional Judge.
  • Sworn in as Chief Justice of Madhya Pradesh High Court on 16th October, 2012.
  • Elevated as a Judge of Supreme Court of India on 12th April, 2013.
  • Sworn in as Chief Justice of India on 18th November, 2019.
  • Due to retire on 23rd April, 2021.

Hon’ble Justice B. R. Gavai

  • Born on 24th November, 1960 at Amravati.
  • Joined Bar on 16th March, 1985. Worked with late Bar. Raja S. Bhonsale, former Advocate General and Judge of High Court, till 1987.
  • Practiced independently at Bombay High Court from 1987 to 1990.
  • After 1990, practised mainly before Nagpur Bench of Bombay High Court. Practised in Constitutional Law and Administrative Law.
  • Was Standing Counsel for Municipal Corporation of Nagpur, Amravati Municipal Corporation and Amravati University.
  • Appeared regularly for various autonomous bodies and Corporations like SICOM, DCVL etc. and various Municipal Councils in Vidarbha region.
  • Was appointed as Assistant Government Pleader and Additional Public Prosecutor in the High Court of Judicature at Bombay, Nagpur Bench, from August, 1992 to July, 1993.
  • Was appointed as Government Pleader and Public Prosecutor for Nagpur Bench on 17th January, 2000. Was elevated as Additional Judge of the High Court on 14th November, 2003.
  • Became a permanent Judge of the Bombay High Court on 12th November, 2005
  • Presided over Benches having all types of assignments at the Principal Seat at Mumbai as well as Benches at Nagpur, Aurangabad and Panaji. Elevated as a Judge of the Supreme Court of India on 24th May, 2019. Due to retire on 23rd November, 2025.

Hon’ble Justice Surya Kant

  • Born on 10th February, 1962 at Hisar (Haryana) in a middle class family
  • Graduated from Government Post Graduate College, Hisar in 1981. Earned Bachelor's degree in Law in 1984 from Maharishi Dayanand University, Rohtak. Started practicing Law at the District Court, Hisar in 1984
  • Shifted to Chandigarh in 1985 to practice in the Punjab and Haryana High Court. Specialised in Constitutional, Service and Civil matters
  • Represented a number of Universities, Boards, Corporations, Banks and also the High Court itself. Earned distinction of being appointed the youngest Advocate General of Haryana on July 7, 2000. Designated as Senior Advocate in March, 2001.
  • Held the office of Advocate General, Haryana till his elevation as a permanent Judge to the Punjab and Haryana High Court on January 09, 2004. Was nominated as a Member of the Governing Body of National Legal Services Authority on February 23, 2007 for two consecutive terms till February 22, 2011.
  • Presently a Member of various Committees of Indian Law Institute - a deemed university under the aegis of Hon'ble Supreme Court of India. Earned another distinction of standing First Class First in his Master's degree in Law in 2011 from the Directorate of Distance Education, Kurukshetra University, Kurkshetra
  • Has also organised and attended various prestegious National/International Conferences. Assumed charge of the office of the Chief Justice of the High Court of Himachal Pradesh with effect from 05th October, 2018. Elevated as a Judge of the Supreme Court of India on 24th May, 2019. Due to retire on 09th February, 2027.

Background

The North-East Indian state of Assam was first ceded to the British by the Burmese on 24 February 1826, which was then placed as an administrative unit of Bengal. Assam was later declared a Governor’s province under the Government of India Act, 1935.

The Foreigners Act, enacted in 1946, placed the burden of proving whether or not a person is a foreigner on such persons. Thereafter, in 1950, when the Constitution came into force, Article 5 guaranteed that every person domiciled in India who was himself, or whose parents were, born in India or who had been an ordinary resident of India for at least five years preceding the commencement of the Constitution was a citizen of India while Article 6 of the Constitution set out the rights of citizenship available to certain persons who had migrated to India from Pakistan. Under the latter, 19-07-1948 was set as the baseline and persons who migrated to India prior to this date were automatically deemed to be Indian citizens.

The same year as the Constitution came into force, the immigrants (Expulsion from Assam) Act, 1950 was also enacted to protect Assam’s indigenous inhabitants from large scale immigration of East Bengal residents. Sections 2 and 4 of this Act gave the Central Government the power to order the expulsion of certain immigrants and to give effect to such expulsion orders.

During the 1951 Census, a National Register of Citizens (“NRC”) was prepared under the Ministry of Home Affairs’ directive.

Between 1948 and 1971, there was large-scale migration from erstwhile East Pakistan to Assam. In 1971, East Pakistan emerged as the independent nation of Bangladesh. However, given the continuing influx of illegal migrants from Bangladesh into Assam even after 1971, the All Assam Students Union (“AASU”) submitted a memorandum to the Prime Minister inviting attention to the issue.

In 1983, the Illegal Migrants (Determination by Tribunal) Act, 1983, applicable only to Assam, was enacted with the intention of speeding up determination of illegal migrants in Assam for their deportation.

On 15-08-1985, the “Assam Accord” was signed between AASU, All Assam Gana Sangram Parishad (“AAGSP”) and the Central and State Government. In pursuance of the Assam Accord, Section 6A was inserted in the Citizenship Act, 1955. This provision granted the benefit of Indian citizenship on all persons who had migrated to Assam before 1966. Additionally, all persons who migrated to Assam between 01-01-1966 and 25-03-1971 were to become Indian citizens either immediately or after a period of ten years on determination that they did in fact settle in India during that period.

In 2000, a Writ Petition challenging the Constitutional validity of the illegal Migrants (Determination by Tribunals) Act, 1983 was filed before the Supreme Court. In the final judgement Sarbananda Sonowal v. Union of India, the Court struck down the impugned Act stating that instead of assisting in deporting illegal migrants, the Act placed the burden of proof on the state. Consequently, the Immigrants (Expulsion from Assam) Act 1950 along with the Foreigners Act, 1946 and the Foreigners Tribunal Order, 1964 were to be used by the Government to detect illegal migrants liable to be deported.

In 2006, the Foreigners (Tribunals for Assam) Order was promulgated. This order was also struck down by the Supreme Court in Sarbananda Sonowal (II) v. Union of India for similar reasons.

In the Writ Petition Assam Sanmilita Mahasangha v. Union of India, (“Assam Accord case”) the petitioners, the tribal and non-tribal people of Assam, raised the plea that the massive influx of illegal migrants into Assam was putting India’s sovereignty and integrity at stake. The influx was leading to periodic clashes between Indian citizens and illegal migrants resulting in loss of life and property, thereby violating the fundamental rights of Assamese people under Articles 21 and 29 of the Constitution. According to the petitioners, Section 6A, being ongoing and not time bound, violated Article 14 of the Constitution.

In the present case, a special two-judge bench monitored the process of updating the NRC and issued orders to the Executive (both the Union of India and State of Assam) to ensure the publication of the NRC and prevention of further influx of immigrants. This included determining deadlines, documents citizens could submit to be included in the NRC and other modalities concerning the NRC. The orders given in the final order of this case is to ensure that the NRC updation exercise is completed subject to the outcome and orders of the decision on constitutionality of Section 6A of the Citizenship Act, 1955 which is pending before a five-judge bench.

The order containing the orders for monitoring the process appears to be disposed of. However, the two-judge bench was of the opinion that this case involved questions of interpreting the Constitution and hence will be tagged along with the Assam Sanmilita Mahasangha case to be decided by the five-judge bench.

Questions of law

This case pertaining to the exercise for preparation and updating of NRC for the state of Assam was directed and monitored by the Supreme Court Bench consisting of Justices Ranjan Gogoi and Rohinton Fali Nariman. The questions that are answered through this judgement are the following

1

While implementing NRC, are the Citizenship (Registration of Citizens and Issue of National Identity Card Rules) 2003 being complied with?

2

Is there a Standard Operating Procedure (SOP) to allow refiling of documents and address objections for residents excluded from the draft NRC list?

3

Can the children whose parents’ applications for NRC are pending be separated from their parents and sent to detention camps?
However, for the reader to understand the gravity of the Assam Accord case and the nature of questions therein the questions of law before the five-judge bench of the Supreme Court of India deciding the matter in the Assam Accord case are the following:

1

Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6A of the Citizenship Act (Section 6A) by prescribing a cut-off date different from the cut-off date prescribed in Article 6?

2

Does Section 6A violate Articles 325 and 326 of the Constitution of India in that it has diluted the political rights of the citizens of the State of Assam?

3

What is the scope of the fundamental right contained in Article 29(1) ? Is the fundamental right absolute in its terms? In particular, what is the meaning of the expression “culture” and the expression “conserve”? Whether Section 6A violates Article 29(1)?

4

Whether Section 6A violates Article 355? What is the true interpretation of Article 355 of the Constitution? Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”? Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?

5

Whether Section 6A violates Article 14 in that, it singles out Assam from other border States (which comprise a distinct class) and discriminates against it? Also whether there is no rational basis for having a separate cut-off date for regularising illegal migrants who enter Assam as opposed to the rest of the country.

6

Whether Section 6A violates Article 21 in that the lives and personal liberty of the citizens of Assam have been affected adversely by the massive influx of illegal migrants from Bangladesh?

7

Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution?

8

Whether, after a large number of migrants from East Pakistan have enjoyed rights as citizens of India for over 40 years, any relief can be given in the petitions filed in the present cases?

9

Whether Section 6A violates the basic premise of the Constitution and the Citizenship Act in that it permits citizens who have allegedly not lost their Citizenship of East Pakistan to become deemed citizens of India, thereby conferring dual citizenship to such persons?

10

Whether Section 6A violates the fundamental basis of Section 5(1) proviso and Section 5(2) of the Citizenship Act (as it stood in 1985) in that it permits a class of migrants to become deemed citizens of India without any reciprocity from Bangladesh and without taking the oath of allegiance to the Indian Constitution?

11

Whether the Immigrants (Expulsion from Assam) Act, 1950 being a special enactment qua immigrants into Assam, alone can apply to migrants from East Pakistan/Bangladesh to the exclusion of the general Foreigners Act and the Foreigners (Tribunals) Order, 1964 made thereunder?

12

Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to government according to law?

13

Whether Section 6A violates fundamental rights in that no mechanism is provided to determine which persons are ordinarily resident in Assam since the dates of their entry into Assam, thus granting deemed citizenship to such persons arbitrarily?
Petitioner’s Arguments
  • The Petitioners challenged the constitutional validity of Clause 6(A) of the Citizenship Act, 1955 the grounds that a separate cut-off date for citizenship (March 24, 1971 as per the provision) could not be made applicable only to Assam, and the same be kept uniform in the rest of India.
  • The writ petitions filed by numerous parties have also highlighted that the NRC violates the principle of equality under Article 14 by restricting certain religious communities to be eligible for it.
Respondent’s Arguments
  • The State claimed that the NRC is a necessary exercise for any sovereign country to identify its citizens from its non-citizens. It also claimed that the NRC had been a part of the Citizenship Act since December 2004.
  • The State referred to Article 14 and its reasonable classification principle, and submitted that the selection of Hindus, Buddhists, Sikhs, Parsis, Jains, and Christians in the classification was based on religion and was different from the one practiced by neighbouring countries. It said that any classification is “likely in some degree to produce some inequality”.
  • The State also held that it is its responsibility under law to identify and detect illegal migrants and follow the due process of law in tackling them. It maintained that there was no breach of the principle of constitutional morality as the same cannot be invoked in isolation and must be read with a fundamental right.

Court's reasoning

In the present case, A Division Bench comprising CJI Ranjan Gogoi and Justice Rohinton Nariman closely monitored the process, to ensure that the Government was complying with the Citizenship Act 1955 and Citizenship (Registration of Citizens and Issue of National Identity Card Rules) 2003.
The monitoring of the NRC process was then continued by a Bench headed by then Chief Justice of India, S. A. Bobde.
While disposing of this matter, the judgment also acknowledged that this outcome is subject to the decision of the larger Constitution Bench who will decide upon the 13 complex questions involving the interpretation of the Constitution.
NA

Sr No. Cause Title Case No. Date of Institution Date of Tagging Pending For*

1

Assam Sanmilita Mahasangha v. Union of India Ministry of Home Affairs Represented by the Secretary

W.P.(C) No. 562/2012


Diary No. 39577/2012

29-11-2012

08-05-2013

2

Joint Action Committee For Bangali Refugees v.

Union of India

W.P.(C) No. 916/2014 


Diary No. 38637/2013 

05-12-2013

Tagged To W.P.(C) No 243/2012 on 10-11-2014, which was tagged to W.P.(C) No. 68/2016 on 07-04-2017.

3

All Assam Ahom Association v. Union of India Represented by the Secretary

W.P.(C) No. 876/2014


Diary No. 24981/2014

01-08-2014

Tagged to Assam Sanmilita Mahasangha v. Union of India Ministry of Home Affairs Represented by the Secretary on 17-10-2014, which was tagged to the main matter on 08-05-2013.

4

Depak Kumar Nath v. Union of India Ministry of Home Affairs Represented by the Secretary

W.P.(C) No. 311/2015 


Diary No. 17223/2015

06-05-2015

Tagged to Assam Sanmilita Mahasangha v. Union of India Ministry of Home Affairs Represented by the Secretary on 21-07-2015, which was tagged to the main matter on 08-05-2013.

5

Purbottar Hindustani Sammellan v. Union of India

W.P.(C) No. 449/2015


Diary No. 22191/2015

10-07-2015

Tagged to Assam Sanmilita Mahasangha v. Union of India Ministry of Home Affairs Represented by the Secretary on 21-07-2015, which was tagged to the main matter on 08-05-2013.

6

Assam Sahitya Sabha v. Union of India

W.P.(C) No. 450/2015 


Diary No. 22421/2015

13-07-2015

Tagged to Assam Sanmilita Mahasangha v. Union of India Ministry of Home Affairs Represented by the Secretary on 21-07-2015, which was tagged to the main matter on 08-05-2013.

7

Fateman Nessa v. State of Assam

SLP(C) No. 25858/2015

01-09-2015

07-01-2019

8

Pranab Kumar Mazumdar v. Union of India

W.P.(C) No. 68/2016


Diary No. 1032/2016

08-01-2016

Tagged to Assam Sanmilita Mahasangha v. Union of India Ministry of Home Affairs Represented by the Secretary on 12-02-2016, which was tagged to the main matter on 08-05-2013.

9

Idris Ali v. Union of India

W.P.(C) No. 470/2018 


Diary No. 14672/2018 

17-04-2018

17-05-2018

10

Abdul Batin Khandakar v. Union of India

SLP(C) No. 20944/2018

28-05-2018

23-07-2018

11

Aktara Khatun@ Aktara Begum@Aftara Begum@ Aftatara Begum v. State of Assam

SLP(C) No. 21214/2018

30-05-2018

NA

12

Abdul Kashm Talukdar v. State of Assam

SLP(C) No. 21377/2018

31-05-2018

23-07-2018

13

Musstt. Fatema Begum v. Union of India Secretary Home

SLP(C) No. 21368/2018

31-05-2018

23-07-2018

14

Kamalakhya Dey Purkayastha v. Union of India

SLP(C) No. 21959/2018

07-06-2018

23-07-2018

15

Bir Bahadur Thapa v.

Union of India

W.P.(C) No. 1047/2018


SLP(C) No. 32621/2018

31-08-2018

14-09-2018

16

Sadullah Ahmed v. State of Assam Home Department

SLP(C) No. 34152/2018

11-09-2018

Tagged to Fateman Nessa v. State of Assam on 12-11-2018, which was tagged to the main matter on 07-01-2019.

* as of