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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


Union of India v. Preeti Agarwal

Crl. A. No 375/2006

Timeline

  1. Impugned order of the High Court
  2. Date of institution of the Special Leave Petition
  3. Order granting leave
  4. Date for reference to a three-judge bench
  5. Date for reference to a five-judge bench
  6. Last date of hearing
    Current Status: Referred to a five-judge bench

Bench Composition

Bench Status

Last listed before
Hon’ble Justice Mohan M. Shantanagoudar
Hon’ble Justice N.V. Ramana
Hon’ble Justice Ajay Rastogi
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Hon’ble Justice Mohan M. Shantanagoudar

  • Born on 5th May, 1958.
  • Enrolled as an Advocate on 05.09.1980.
  • Served as Vice-Chairman of Karnataka State Bar Council from 1991 to 1993 and as Chairman of Karnataka State Bar Council during 1995 and 1996. Served as State Public Prosecutor of Karnataka State from 1999 to 2002.
  • Appointed as Additional Judge of the Karnataka High Court on 12.05.2003 and as Permanent Judge on 24.09.2004. Was the President of Bangalore Mediation Centre and Karnataka Judicial Academy.
  • On transfer, sworn-in as Judge, High Court of Kerala. Assumed charge as Acting Chief Justice on 01.08.2016. Sworn in as the Chief Justice of the High Court of Kerala on 22.09.2016.
  • Elevated as Judge of the Supreme Court of India on 17th February, 2017.

Hon’ble Justice N.V. Ramana

  • N.V. Ramana, B.Sc., B.L., was born in an agricultural family on August 27, 1957 in Ponnavaram Village, Krishna District.
  • He enrolled as an Advocate on February 10, 1983. He has practiced in the High Court of Andhra Pradesh, Central
  • Andhra Pradesh Administrative Tribunals and the Supreme Court of India in Civil, Criminal, Constitutional, Labour, Service and Election matters. He has specialized in Constitutional, Criminal, Service and Inter-State River laws. He has also functioned as Panel Counsel for various Government Organizations.
  • He has functioned as Additional Standing Counsel for Central Government and Standing Counsel for Railways in the Central Administrative Tribunal at Hyderabad. He has also functioned as Additional Advocate General of Andhra Pradesh
  • He was appointed as a permanent Judge of the Andhra Pradesh High Court on June 27, 2000. He functioned as Acting Chief Justice of Andhra Pradesh High Court from March 10, 2013 to May 20, 2013. He had participated in several National and International Conferences held in India and abroad and submitted papers on various topics of legal importance. Elevated as the Chief Justice of Delhi High Court w.e.f. 02.09.2013. Elevated as a Judge, Supreme Court of India w.e.f. 17.02.2014.

Hon’ble Justice Ajay Rastogi

  • Was born on 18th June 1958. Followed in the footsteps of his father Late Shri. Harish Chandra Rastogi who was an eminent civil lawyer in Rajasthan High Court and joined the bar in 1982.
  • During his years at the bar practised in different spheres of law but specialized in constitutional and service laws. Was nominated as the standing counsel for the Rajasthan High Court in the year 1990 and continued as such till his elevation in the year 2004. Remained President of the Rajasthan High Court Bar Association at Jaipur in the year 1999-2000.
  • Pursuant to his appointment as a judge of the Rajasthan High Court he remained Executive Chairman of the State Legal Services Authority from 14.10.2013 to 18.10.2016. Under his stewardship, SLSA won the National Award from National Legal Services Authority for three consecutive years. Was appointed as the Administrative Judge of the Rajasthan High Court on 19.07.2014 and continued as such till his elevation as Chief Justice of the Tripura High Court on 01.03.2018. Also remained Acting Chief Justice of the Rajasthan High Court from 14.04.2016 to 13.05.2016.
  • Was elevated as Judge of the Supreme Court on 02.11.2018.

Background

Pre-independence, under the Government of India Act, 1935 ordinances could be promulgated by the Governor-General only for a period of six months. During this time period, they were to be treated at par with the Acts of the legislature. Their operation would cease after the six months unless passed by the parliament or extended through another ordinance.

During World War II, given the exceptional circumstances and to centralise control, the British Empire enacted the India and Burma (Emergency provisions) Act, 1940 Under the Act, all ordinances made during the emergency were exempted from the six-month limitation.

In 1944, the Government introduced the Criminal Law Amendment Ordinance, 1944. This Ordinance gave the Government the power to seize or attach those properties which individuals had allegedly acquired by committing certain offences listed under the Act. These include acts of corruption, embezzlement, and other offences that caused losses to the Government. Under the law, a District Judge could make the attachment permanent and direct the forfeiture of the amount allegedly gained by the commission of the offence.

Even though the emergency was declared to have ended in 1946, the Criminal Law Amendment Ordinance was never repealed, thereby effectively becoming a permanent statute. Similar ordinances introduced during the emergency continue to be in force even today

The present of petitions challenge the applicability of the ordinance and the seizure of property under it.

Since the holding in the present case will have possible ramifications on other permanent and obsolete ordinances passed during the time and the court might need to potentially re-consider the law laid down by a 5-judge bench in Hansraj Moolji v. State of Bombay present case is now before a constitution bench

Questions of law

Since the 5-judge bench is yet to be constituted, the exact questions of law to be decided have not yet been framed. The potential questions of law are

1

Will the Criminal Law Amendment Ordinance, 1944 and its continuance ad infinitum as a law made by the Executive, be contrary to the basic features of separation of powers and the scheme of checks and balances inscribed in the polity the Constitution has adopted?

2

What is the status of these laws in light of Articles 123 and 372 of the Constitution of India?
Appellant’s Arguments
  • Ordinances introduced during the emergency period were equated with acts of federal legislature and therefore continue to be in force till they are repealed. Hence, for all purposes, they must be considered as enacted legislations and the time period of six months used for ordinances should not be applicable.
  • Since the ordinance was included in the Adaptation of Laws Order, 1950, issued under Article 372(2) of the Constitution, the ordinance continues to be a valid law.
  • On merits, the confiscation and forfeiture of property by the District Judge is merely a more efficient way of returning the property to the Government than filing a suit for the same. ‘Penalty’ under Article 20(1) includes only punishments prescribed under Section 53 of the Indian Penal Code. Confiscation and forfeiture under the Ordinance falls outside the ambit of punishments under Section 53. Therefore, there is no violation of Article 20(1) in accordance with the holding of State of West Bengal v. S.K. Ghosh.
Respondent’s Arguments
  • At the end of the emergency, the original position of law was restored and the ordinance should be deemed to have been in effect only for the period of the emergency.

  • At the end of the emergency, ordinance making powers were back to being governed by the Government of India Act, 1935 and therefore ordinances should be tested against its terms.

  • Ordinances are temporary by their very nature, despite the particular time limit having been removed. Ordinances are introduced through special powers to meet an emergency and have to be treated as such as per the law laid down in Krishna Kumar Singh v. State of Bihar and D.C. Wadhwa v. State of Bihar.

  • Equating laws made by the executive with laws made by the legislature violates separation of powers.

  • Permanent ordinances go against the scheme of the Constitution under Article 123 and cease to operate six weeks after the re-convening of the parliament. If they are to continue as laws they should be introduced as statutes.

Court's reasoning

Since the question of law has not previously been deliberated upon by the court, no reasoning is available.

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

1.

Birsa Oraon v. State through CBI 

Crl.A. No. 1512/2008 

10-08-2007

29-03-2011

2.

Birsa Oraon v. State of Jharkhand CBI

W.P.(Crl.) No. 110 /2007

06-09-2007

Tagged to Birsa Oraon v. State through CBI on 15-09-2008

3.

M.D. Sayeed v. State of Jharkhand 

Crl.A. No. 2414/2010  

16-05-2008

13-12-2018

4.

M.D. Sayeed v. State of Jharkhand through CBI Superintendent of Police

W.P.(Crl.) No. 55/2009 

28-11-2008

29-03-2011

5.

Saurabh Malik v. State of Jharkhand

W.P.(Crl.) No. 267/2018

24-08-2018

Tagged to Birsa Oraon v. State through CBI on 12-10-2018

6.

Rajeev Malik v. State of Jharkhand

W.P.(Crl.) No. 278/2018 

26-09-2018

Tagged to Birsa Oraon v. State through CBI on 12-10-2018 

* as of