Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ has held that

“’banking’ relating to co­operatives can be included within the purview of Entry 45 of List I, and it cannot be said to be over inclusion to cover provisions of recovery by co­operative banks in the SARFAESI Act.”

The jusgment of the Court came in a reference made in view of conflicting decisions in Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd., (2007) 6 SCC 236, Delhi Cloth & General Mills Co. Ltd. v. Union of India, (1983) 4 SCC 166, T. Velayudhan Achari v. Union of India, (1993) 2 SCC 582 and Union of India v. Delhi High Court Bar Association, (2002) 4 SCC 275.

Holding that Co­operative bank’s entire operation and activity of banking are governed by a law enacted under Entry 45 of List I, i.e., the BR Act, 1949, and the RBI Act under Entry 38 of List I, the bench said,

“recovery of dues would be an essential function of any banking institution and the Parliament can enact a law under Entry 45 of List I as the activity of banking done by co­operative banks is within the purview of Entry 45 of List I. Obviously, it is open to the Parliament to provide the remedy for recovery under Section 13 of the SARFAESI Act.”

The Court further explained that the main aspect of the activity of the cooperative bank relating to banking was covered by the BR Act, 1949, and the Reserve Bank of India Act, which legislations are related to Entries 45 and 38 of List I of the Seventh Schedule. The aspects of ‘incorporation, regulation and winding up’ are covered under Entry 32 of List II of the Seventh Schedule.

“In our opinion, the activity of banking by such bankers is covered by Entry 45 of List I considering the Doctrine of Pith and Substance, and also considering the incidental encroachment on the field reserved for State is permissible.”

It further said that by enacting the SARFAESI Act, Parliament does not intend to regulate the incorporation, regulation, or winding up of a corporation, company, or co­operative   bank/cooperative society. It provides for recovery of dues to banks, including co­operative banks, which is an essential part of banking activity. The Act, hence,  in no way trenches on the field reserved under Entry 32 of List II and is a piece of legislation traceable to Entry 45 of List I.

In a 159-pages long verdict, the 5-judge concluded,

  • The co­operative banks registered under the State legislation and multi­State level co­operative societies registered under the Multi­State Co­operative Societies Act, 2002 (MSCS Act, 2002) with respect to ‘banking’ are governed by the legislation relatable to Entry 45 of List I of the Seventh Schedule of the Constitution of India.
  • The co­operative banks run by the co­operative societies registered under the State legislation with respect to the aspects of ‘incorporation, regulation and winding up’, in particular, with respect to the matters which are outside the purview of Entry 45 of List I of the Seventh Schedule of the Constitution of India, are governed by the said legislation relatable to Entry 32 of List II of the Seventh Schedule of the Constitution of India.
  • The co­operative banks involved in the activities related to banking are covered within the meaning of ‘Banking Company’ defined under Section 5(c) read with Section 56(a) of the Banking Regulation Act, 1949, which is a legislation relatable to Entry 45 of List I. It governs the aspect of ‘banking’ of co­operative banks run by the co­operative societies. The co­operative banks cannot carry on any activity without compliance of the provisions of the Banking Regulation Act, 1949 and any other legislation applicable to such banks relatable to ‘Banking’ in Entry 45 of List I and the RBI Act relatable to Entry 38 of List I of the Seventh Schedule of the Constitution of India.
  • The co­operative banks under the State legislation and multi­State co­operative banks are ‘banks’ under section 2(1)(c) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The recovery is an essential part of banking; as such, the recovery procedure prescribed under section 13 of the SARFAESI Act, a legislation relatable to Entry 45 List I of the Seventh Schedule to the Constitution of India, is applicable.
  • The Parliament has legislative competence under Entry 45 of List I of the Seventh Schedule of the Constitution of India to provide additional procedures for recovery under section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 with respect to cooperative banks. The provisions of Section 2(1)(c)(iva), of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, adding “ex abundanti cautela”, ‘a multi­State co­operative bank’ is not ultra vires as well as the notification dated 28.1.2003 issued with respect to the cooperative banks registered under the State legislation.

[Pandurang Ganpati Chaugale v. Vishwasrao Patil Murgud Sahakari Bank Ltd,  2020 SCC OnLine SC 431 , decided on 05.05.2020]

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: In a significant ruling, a 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat, JJ has unanimously ruled that the protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time.

While all 5 judges gave a unanimous verdict, MR Shah and Ravindra Bhat, JJ gave elaborate separate opinions.

Justice Shah was of the opinion that the normal rule should be not to limit the operation of the order in relation to a period of time. He, however, added,

“the conditions can be imposed by the concerned court while granting pre­arrest bail order including limiting the operation of the order in relation to a period of time if the circumstances so warrant, more particularly the stage at which the “anticipatory bail” application is moved, namely, whether the same is at the stage before the FIR is filed or at the stage when the FIR is filed and the investigation is in progress or at the stage when the investigation is complete and the charge sheet is filed.”

Justice Bhat in his opinion wrote:

“it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years.”

Summary of the verdict

Whether the protection granted to a person under Section 438 Cr. PC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail?

The protection granted to a person under Section 438 Cr.PC should not invariably be limited to a fixed period. The Normal conditions under Section 437(3) read with Section 438(2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc.

Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court?

The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.

Points to be kept in mind by courts, dealing with applications under Section 438, Cr. PC:

  • When a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts such as relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story, and not vague or general allegations, relatable to one or other specific offence.
  • Depending on the seriousness of the threat of arrest the Court should issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.
  • Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. The   need   to   impose   other   restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency.
  • Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it.
  • Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.
  • An order of anticipatory bail should not be “blanket” in the sense that it cannot operate in respect of a future incident that involves commission of an offence.
  • An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre­arrest bail.
  • If and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail.
  • It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term.
  • The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. This does not amount to “cancellation” in terms of Section 439 (2) Cr.P.C.

Sushila Aggarwal v. State of NCT of Delhi, 2020 SCC OnLine SC 98, decided on 29.01.2020]

Case BriefsSupreme Court

Supreme Court:

“I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse.”

These were the closing words of a rather lengthy judgment that Justice Arun Mishra wrote announcing that he will not be recusing from the matter relating to the interpretation of a provision of the Land Acquisition Act.

Justice Mishra, whose recusal was sought by some land associations on the grounds that he heads a Bench meant to re-examine a judgment that he had himself given in 2018, said that recusal is not to be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse. if he recuses, it will be a dereliction of duty, injustice to the system, and to other Judges who are or to adorn the Bench/es in the future.

Senior Advocates Shyam Divan, Dinesh Dwivedi and Gopal Sankarnarayanan, appearing on behalf of the Land Associations argued that the correctness of the opinion cannot be judged by the Constitution Bench independently, as a final view has been expressed in Indore Development Authority v. Shailendra, (2018) 3 SCC 412 wherein the decision in Pune Municipal Corporation v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 has been held to be per incuriam. Thus, Justice Mishra, who has decided the matter in Indore Development Authority, is pre­disposed to decide the matter only in a particular way.

Noticing that there are umpteen occasions as mentioned above when Judges have overruled their own view, Justice Mishra said,

 “There may not be even one Judge in this Court who has not taken a view one way or the other concerning Section 24 of the Act of 2013, either in this Court or in the High Court. If the submission is accepted, no Judge will have the power to decide such a matter on the judicial side.”

A Judge who had rendered any decision in a smaller combination is not disqualified from being part of a larger Bench when a reference is made to the larger bench. Rather, it is a consistent practice prevailing in various High Courts as well as of this Court to include the same Judge/Judges in larger Benches.

“The rule provides that a Judge who referred a case has to sit on the larger Bench to consider the reference. In the present case also, the reference has been made by me and my recusal has been sought.”

The Senior Advocates also submitted before the Court that they may feel embarrassed in arguing   a proposition of law which has been dealt with in the Indore Development Authority elaborately. On this Justice Mishra wrote,

“given that arguments on recusal, spilling for over a day, could be made vociferously, in a belligerent fashion and with utmost ability, the submission that the learned counsel would feel diffident in arguing a proposition of law on merits, is difficult to accept.”

He said that the lawyers have compelled this Court time and again to change its views and to refine the law. This Court is known for not a particular view but for refining the law and that has been done with the help, ability and legal ingenuity of the lawyers to convince this Court with aplomb to correct its view. That is how the process goes on as the entire system exists for the people of this country.

He further added that if recusal is made, it would tantamount to giving room to unscrupulous litigant to have a Judge of their choice who can share the views which are to be canvassed by them. The plea cannot be termed anything other than Bench hunting, if it is said that until and unless the one which suits a litigant is found the matters are not to be argued.

Justice Mishra is heading the 5-judge Constitution bench also consisting of Indira Banerjee, Vineet Saran, M R Shah and S Ravindra Bhat, JJ. The other members of the Bench, writing down a separate order said,

“the view of Mishra, J, to reject the application for recusal, is not a matter that can be commented upon by us.”

They, hence, held,

“we concur with his reasoning and conclusions that no legal principle or norm bars his participation in the present Bench which is to hear the reference; the precedents cited and the practice of the court, point to the contrary, i.e. that the judge who decided a previous cause, finally, can – and very often has- participated in the later, larger bench to which such previous decision is referred for reconsideration.”

Asking if the demands for his recusal amounted to maligning the court, Justice Mishra had earlier said,

“I may be criticised for my view, I may not be a hero and I may be a blemished person but if I am satisfied that my conscience is clear, my integrity is clear before God, I will not budge. If I think I will be influenced by any extraneous factor, I will be the first to recuse here,”

Justice Mishra had said:

“Is this not maligning the court? If you had left it to me, I would have decided… But you are taking to the social media to malign me… and the Chief Justice of India?… Can this be the atmosphere of the court? It can’t be like this… Tell me one judge who has not taken a view on this. Will that mean all of us are disqualified?… This matter should not have been listed before me. But now it is before me, so the question of my integrity has arisen.”

[Indore Development Authority v. Manohar Lal, 2019 SCC OnLine 1392, decided on 23.10.2019]

(With inputs from Indian Express)

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Supreme Court: After Justice UU Lalit recused himself from the Ram Janmabhoomi-Babri Masjid land dispute title case famously known as the Ayodhya dispute, the Court adjourned the matter till January 29 for deciding the schedule of hearing. Justice UU Lalit recused himself from the matter after it was pointed out that he had represented former UP Chief Minister Kalyan Singh, in a related matter.

Chief Justice Ranjan Gogoi had formed a 5-judge Constitution Bench consisting of himself and Justice SA Bobde, Justice NV Ramana, Justice UU Lalit and Justice Dr. DY Chandrachud, after he along with Justice SK Kaul had ordered on January 4 that an “appropriate bench” constituted by it will pass an order on January 10.

Earlier on 27.09.2018, a Bench comprising of former CJ Dipak Misra and Ashok Bhushan and S. Abdul Nazeer, JJ., by a majority of 2:1, had held that the appeals concerning the Ayodhya (Ram Janmabhoomi-Babri Masjid) matter need not be referred to a larger Bench for consideration.

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Supreme Court: The Bench comprising of Dipak Misra, CJ. and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ., passed order stating that the “Female Genital Mutilation” case be referred to a 5-Judge Constitution bench.


The practice of Female Genital Mutilation (FGM) followed by the Dawoodi Bohra Community in India was earlier challenged on the constitutionality aspect in the Supreme Court. The arguments in the earlier hearings revolved around the matter being referred to a Constitution Bench. The petition filed, sought for the issuance of orders to impose a complete ban on practice of FGM.

Therefore, AG K.K. Venugopal and Senior Advocate Mukul Rohatgi in consonance asked the bench to refer the matter to a Constitution Bench. Hence, the matter is referred to a Constitution Bench for further hearing on the case.

[Source: Economic Times]

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Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., likely to pronounce the judgment concerning the constitutionality of Section 377 Indian Penal Code, 1860 today, i.e. 06-09-2018.

The judgment was reserved by the Constitution Bench on 17-07-2018, after a 4-day hearing covering the different standpoints on Section 377 and further Nariman J., on the last day of hearing stating that “If we are convinced that it is unconstitutional, it is our duty to strike it down’.


Several pleas were filed challenging the re-criminalization of sex between consenting adults of the same sex by holding it as “illegal”. Therefore, the Supreme Court stated that the Naz Foundation v. State (NCT of Delhi)2009 SCC OnLine Del 1762 case requires re-consideration not only on the ground of Constitutional morality but also social morality as social morality also changes from age to age.

Case BriefsSupreme Court

Supreme Court: The 5-judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M Khanwillkar, DY Chandrachud and Indu Malhotra, JJ. began the hearing on Day-4 of the constitutionality of Section 377 IPC.

Advocate Manoj George representing two Christian groups and supporting Section 377 stated that Section 377 is constitutionally valid’.

He said that the “carnal intercourse criminalised is b/w man and man, b/w woman and woman, b/w man and animal or between woman and animal”.

“If Your Lordships says there is nothing called “order of nature” with or without consent, then the entire Section will go”, submitted Manoj George.

DY Chandrachud J. intervenes and asks under Article 14, is there anything called order of nature?

Nariman J. points to Yogyakarta principles stating “Don’t forget, we have already expanded sex to include transgender“.

CJ Dipak Misra: ‘Whatever the principles stated in Yogyakarta principles, if it fits into our constitutional framework, it may be referred as well’.

“We have already expanded the scope of the meaning of sex. You need to respect the natural process of law, if any sex is against the order of nature, it doesn’t lead to procreation”: Nariman J.

Anything to be done with Section 377 IPC should have been done by the legislature not by the Court’: Advocate George

‘If we are convinced that it is unconstitutional, it is our duty to strike it down’: Nariman J.

CJ Dipak Misra: If Section 377 IPC goes away entirely, there will be anarchy. We are solely on consensual acts between man-man, man-woman. Consent is the fulcrum here! You cannot impose your sexual orientation on others without their consent.

Advocate George concluded his arguments on the note that ‘If anything needs to be done, it should be done by legislature’.

Senior Advocate Radhakrishnan began with his arguments by referring to Apex Court’s judgment in Govt. (NCT of Delhi) v. Union of India, in regard to the constitutional morality aspect.

Radhakrishnan also pointed out that ‘Homosexuals spread sexually transmitted diseases like HIV’.

Chandrachud J.: The cause of sexually transmitted diseases is not sexual intercourse.

Advocate Harshvir Pratap Sharma: ‘We know there is corruption everywhere. Will we abolish the police because it is corrupt? Likewise, should we strike down a law because it affects a few?’

Suresh Kumar Koushal’s lawyer submitted that ‘Section 377 needs to be retained as it is.

Supreme Court reserved the judgment on the constitutionality of Section 377 IPC, 1860 by concluding the hearing for today.


Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Kurian Jospeh, MM Shantanagoudan and Navin Sinha, JJ asked larger bench to authoritatively settle the following questions in a clear and unambiguous way:

  • Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.
  • Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.

The issue as to whether an anticipatory bail should be for a limited period of time was before the bench for consideration and it took note of the fact that there were conflicting views of the different Benches of varying strength on the said issue.

While the Constitution Bench verdict in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, holds that anticipatory bail should not be for a limited period, the 3-judge bench verdict in Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667, without referring to the aforementioned Constitution Bench verdict, holds that anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.

Amicus Curiae Harin P. Raval, hence, submitted before the Court that in the light of the two conflicting schools of thought the matter needs consideration by a larger Bench. According to him even the Constitution Bench in Sibbia Case does not, in so many words, lay down a proposition that the protection of anticipatory bail is available to an accused till the conclusion of the trial.

The Court noticed that in Sibbia case, the Court has only briefly dealt with the question of duration of anticipatory bail and has not laid down the law that once an anticipatory bail, it is an anticipatory bail forever. Hence, the Bench referred the matter to a larger bench. [Sushila Aggarwal v. State (NCT of Delhi),  2018 SCC OnLine SC 531, decided on 15.05.2018]

Case BriefsSupreme Court

Supreme Court: In the petition seeking compliance of Animal Welfare Board of India v. A. Nagaraja, (2014) 7 SCC 547,  in the light of the cruelty to Bulls in the Jallikattu event, the bench of Dipak Misra, CJ and RF Nariman, J referred the matter to a 5-judge Constitution bench as it noticed that the writ petitions involve substantial questions relating to the interpretation of the Constitution of India. The present petitions challenge the validity of the Tamil Nadu Amendments to the Prevention of Cruelty to Animals Act, 1960.

The issues placed before the Constitution Bench are as follows:

  1. Is the Tamil Nadu Amendment Act referable, in pith and substance, to Entry 17, List III of the Seventh Schedule to the Constitution of India, or does it further and perpetuate cruelty to animals; and can it, therefore, be said to be a measure of prevention of cruelty to animals? Is it colourable legislation which does not relate to any Entry in the State List or Entry 17 of the Concurrent List?
  2. The Tamil Nadu Amendment Act states that it is to preserve the cultural heritage of the State of Tamil Nadu. Can the impugned Tamil Nadu Amendment Act be stated to be part of the cultural heritage of the people of the State of Tamil Nadu so as to receive the protection of Article 29 of the Constitution of India?
  3. Is the Tamil Nadu Amendment Act, in pith and substance, to ensure the survival and well-being of the native breed of bulls? Is the Act, in pith and substance, relatable to Article 48 of the Constitution of India?
  4. Does the Tamil Nadu Amendment Act go contrary to Articles 51A(g) and 51A(h), and could it be said, therefore, to be unreasonable and violative of Articles 14 and 21 of the Constitution of India?
  5. Is the impugned Tamil Nadu Amendment Act directly contrary to the Nagaraja judgment, and the review judgment dated 16th November, 2016 in the aforesaid case, and whether the defects pointed out in the aforesaid two judgments could be said to have been overcome by the Tamil Nadu Legislature by enacting the impugned Tamil Nadu Amendment Act?

The present bench had earlier, via order dated 16.11.2016 in Chief Secretary to the Govt., Chennai Tamilnadu v. Animal Welfare Board, 2016 SCC OnLine SC 1397, said that there was no connection or association of Jallikattu, a festival involving bull race, with the right of freedom of religion in Article 25. It said:

“the Tamil Nadu State Legislature could not have enacted any law like the Tamil Nadu Regulation of Jallikattu Act, 2009 as when a bull is “tamed” for the purpose of an event, the fundamental concept runs counter to the welfare of the animal which is the basic foundation of the Prevention of Cruelty to Animals Act, 1960.”

In the A. Nagaraj Judgment, it was held that Bulls cannot be used as performing animals, either for Jallikattu or bullock cart races. The bench of KSP Radhakrishnan and PC Ghose, JJ had the Tamil Nadu Regulation of Jallikattu Act, 2009 was repugnant to the Prevention of Cruelty to Animals Act, 1960 (PCA Act) and had hence, issued a number of directions to ensure the compliance of the PCA Act. [Animal Welfare Board of India v. Union of India,  2018 SCC OnLine SC 66, order dated 02.02.2018]

Case BriefsSupreme Court

Supreme Court: Hearing the plea of certain persons directly affected by the offence enumerated under Section 377 IPC, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ referred the matter to a larger bench and said:

“The individual autonomy and also individual orientation cannot be atrophied unless the restriction is regarded as reasonable to yield to the morality of the Constitution.”

Senior Advocate Arvind Datar argued before the Court that the 2-judge bench decision in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 that upheld the validity of Section 377 has been guided by the perception of the majority which is based on social morality and stands on a platform distinct from constitutional morality. He said:

“Section 377 IPC cannot be construed as a reasonable restriction as that has the potentiality to destroy the individual autonomy and sexual orientation. It is an accepted principle of interpretation of statutes that a provision does not become unconstitutional because there can be abuse of the same.”

He, however, made it clear that he does not intend to challenge that part of Section 377 which relates to carnal intercourse with animals and that apart, he confines to consenting acts between two adults.

Taking all the apsects into consideration, the bench said:

“A section of people or individuals who exercise their choice should never remain in a state of fear. When we say so, we may not be understood to have stated that there should not be fear of law because fear of law builds civilised society. But that law must have the acceptability of the Constitutional parameters. That is the litmus test.”

The bench was, hence, of the opinion that the decision in Naz Foundation case requires re-consideration not only on the ground of Constitutional morality but also social morality as social morality also changes from age to age. [Navtej Singh Johar v. Union of India, (2018) 1  SCC 791, order dated 08-01-2018]

Case Briefs

Supreme Court: After the Aadhaar matter was mentioned before the CJI Court by Senior Advocate Shyam Divan, Dipak Misra, CJ said that the matter will be heard next week for interim relief.

Shyam Divan had told the Court that the original deadline for linking Aadhaar to Mobile numbers, bank accounts, etc. will soon expire and hence, the matter should be heard urgently for interim relief. Attorney General KK Venugopal, on the hand, told that the the dates for linking Aadhaar card to bank account, mobile and many other services will likely be extended to 31st March, 2018. The current deadline for Aadhaan linking in 31st December, 2017.

Last month, when Shyam Divan mentioned the matter for interim hearing and said that the matter be heard by a Constitution Bench, CJI said that not just the main matter but even the interim hearing must be done by a Constitution Bench, but when Shyam Divan asked for a fixed date, he simply said “we’ll see”.

Source: ANI

Case BriefsSupreme Court

Supreme Court: In the issue relating to ban of female devotees between the age group of 10 to 50 from entering the Sabrimala Temple of Lord Ayyappa in Kerala, the 3-judge bench of Dipak Misra, CJ and R. Banumathi and Ashok Bhushan, JJ referred the matter to a Constitution bench.

Advocate RP Gupta, appearing for the petitioners argued that there was no religious custom or usage in the Hindu religion specially in Pampa river region to disallow women during menstrual period. He said:

“banning entry of women would be against the basic tenets of Hindu religion.”

Senior Counsel K Ramamoorthy, the amicus curiae in the matter, submitted before the that the question as to what is religious practice on the basis of religious belief which would apply not only to Ayyappa temple but would also apply to all the prominent temples all over India, cannot be decided by this bench and, therefore, the matter should be referred to a Constitution Bench.

Senior counsel Raju Ramachandran, also the amicus curiae in the matter, said:

“The right of a woman to visit and enter the temple as a devotee of the deity, as a believer in Hindu faith is an essential facet of her right and restriction of the present nature creates a dent in that right which is protected under Article 25 of the Constitution.”

Refuting the contention of the State of Kerala and the Devaswom Board that the practice is based on religious custom and the same is essential to religious practice and that there is not a total prohibition, he said that such a religious practice cannot be essential to the religion and it has been only imposed by subordinate legislation. He added:

“a significant section of adult women is excluded and the singular ground for exclusion is sex and the biological feature of menstruation. To put it differently, the discrimination is not singularly on the ground of sex but also sex and the biological factor which is a characteristic of the particular sex.”

The State and the Devaswom Board had contended that the petition under Article 32 of the Constitution was not maintainable as no right affecting public at large was involved in the case. It was further said:

“Ayyappa devotees form a denomination by themselves and have every right to regulate and manage its own affairs in matters of religion.”

It was argued that the Kerala High Court decision, where it was held restriction imposed by the Davaswom Board is not violative of Articles 15, 25 and 26 of the Constitution, would operate as res judicata.

The following questions have been framed for Constitution bench’s consideration:

  • Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?
  • Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?
  • Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?
  • Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?
  • Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution? [Indian Young Lawyers Association v. State of Kerala, 2017 SCC OnLine SC 1236, decided on 13.10.2017]
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Supreme Court: A 5-judge constitution bench will hear the Aadhaar matter for 2 consecutive days next week i.e. on 18th and 19th of July to decide whether the Aadhaar scheme amounts to violation of  Right to privacy of the citizens and data leakage.

It is important to note that on 09.06.2017, the bench of Dr. A.K. Sikri and Ashok Bhushan, JJ had in Binoy Viswam v. Union of India, 2017 SCC OnLine SC 647, upheld the validity of Section 139AA of Income Tax Act, 1961 that makes the linking of Aadhaar Card to the Permanent Account Number (PAN) mandatory and said that the provision is neither discriminatory nor it offends equality clause enshrined in Article 14 of the Constitution. As per the order of the Court, those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act. Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being.

Source: ANI

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On 22.05.2017, the All India Muslim Personal Law Board (AIMPLB) filed an affidavit before the Supreme Court stating that it would issue an advisory through its website, publications and social media platforms asking Qazis to tell the bridegrooms at the time of performing Nikah (marriage) that in case of differences leading to talaq the bridegroom/man shall not pronounce three divorces in one sitting since it is an undesirable practice in Shariat.

The affidavit that will be placed before the 5-judge constituion bench of  J.S. Khehar, CJI and Kurian Joseph, U.U. Lalit, R.F. Nariman and Abdul Nazeer, JJ, mentioned that “at the time of performing ‘Nikah’, the person performing the ‘Nikah’ will advise both the bridegroom/man and the bride/woman to incorporate a condition in the ‘Nikahnama’ to exclude resorting to pronouncement of three divorces by the husband in one sitting.”

The bench had reserved it’s decision in the Triple Talaq matter on 18.05.2017 after a 6-day long hearing.

Source: PTI

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Supreme Court: The Constitution bench of 5 judges belonging to 5 different faiths started hearing the Triple Talaq matter on 11.05.2017. The Bench comprising of J.S. Khehar, CJI and Kurian Joseph, U.U. Lalit, R.F. Nariman and Abdul Nazeer, JJ is hearing the matter on day-to-day basis.

Day 6, May 18th, 2017

  • Amit Chadha, appearing for Shayara Bano: In my opinion, Triple Talaq is a sin and is between me and my maker.
  • Kapil Sibal to SC: Only Legislation can interfere in the matters relating to sinful practices in any religion, not you.
  • AIMPLB: We will, within a week, issue an advisory to Qazis to inform every bride her right to specifically mention in the Nikahnama that she will not accept instant triple talaq.
  • SC reserves it’s judgment after 6 day long hearing.

Day 5, May 17th, 2017

  • J.S. Khehar, CJI to AIMPLB: Is it possible to give bride the right that she will not accept instant triple talaq and whether the board’s advisory will be followed by the Qazi at the ground level? Can’t there be a modern and model Nikah Nama to provide for talaq? New Nikah Nama can also do away with instant Triple Talaq and Nikah Nama.
  • Yousuf Muchala, appearing for AIMPLB: Board’s advisory is not mandatory for all Qazis to follow, however, AIMPLB accepts the suggestions in all humility and will look into it. AIMPLB also showed a resolution passed on 14.04.2017 which says Triple Talaq is a sin and community should boycott person doing it.
  • Yusouf Muchala: A Muslim woman has every right to pronounce Triple Talaq in all forms, and also to ask for very high ‘mehr’ amount in case of talaq.
  • SC: Triple Talaq is not a part of Quran. It came later. So if biddat is a sin then why not Talaq-e-biddat i.e. Instant triple talaq? (Note:- Biddat or Bid’ah refers to innovation in religious matters & evil innovations are forbidden under Islamic law.)
  • Senior Advocate V. Giri: Triple Talaq is a part of religion and hence, it is protected by Article 25 of the Constitution.
  • SC: If you yourself say triple talaq is the worst form of divorce and sinful, how does it then become essential to religion? Protection of Article 25 is applicable only when it is about a practice which is essential to your religions and not for what is not essential.
  • V. Giri: Talaq-e-Biddat finds mention in para 230 of Surah 65 of the Quran.
  • SC (after reading out the versus from the Quran): There is absolutely no mention of Talaq-e-Biddat in the Quran, and only two other forms of talaq,  i.e. Talaq-e-Ehsan and Talaq-e-Ahsan, are mentioned in the holy book. You have to read all the paras before and after to give a complete picture. This book says that in every Friday prayers, you say that biddat is bad and should not be practised by any means and now you say it is part of your 1400-year-old faith.
  • Senior Advocate Raju Ramachandran: Judiciary cannot dictate to a religious community what personal law practices and norms to follow. A community follows practices that it finds relevant for itself and not what an outsider tells it. India has an express reservation in Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). It says that the State follows a policy of non-interference with the personal law practices of any community, unless the community itself takes the initiative to change.
  • Indira Jaising, appearing for Bebak Collective, a Muslim women organisation: But Article I of the CEDAW defines “discrimination against women” and Article 2 obliges the State to act against all forms of discrimination against women.
  • Advocate General Mukul Rohatgi: Issue of Triple Talaq is not an issue of majority or minority. It is an issue of a minority community and that of women within that community.  If Triple Talaq is not present in 25 countries then it cannot be said to be essential to Islam. Rights governed by Article 25 of Constitution are not absolute. Sati, Devdasi etc were once part of Hinduism and were later abolished.
  • CJI: But which one them was set aside by the Court? The were all abolished by bringing in legislation.
  • Mukul Rohatgi: Government will do what is necessary but the Court must step in.
  • Indira Jaising: The key question would be whether personal laws will have to stand scrutiny of fundamental laws. At the end of the day, all the systems will have to comply with the Constitution.
  • Day 5 hearing concludes.

Day 4, May 16th, 2017

  • Kapil Sibal on behalf of AIMPLB: Triple Talaq is a 1400 year old practice. Who are we to call it un-Islamic? He adds that Triple Talaq is not a matter of equity of or good conscience. It is a matter of faith just like the Hindu belief that Lord Rama was born in Ayodhya. Just like the Hindus’ faith about Rama’s birth at Ayodhya cannot be questioned, similarly Triple Talaq which is also a matter of faith for Muslims should not be questioned. There is no question of Constitutional Morality involved. Why should Court interfere?
  • R.F. Nariman, J: You mean we shouldn’t hear the matter?.
  • Kapil Sibal: “Yes, you shouldn’t”. In a Hindu majority country, Muslims have to be protected and vice-versa.
  • Kapil Sibal: The dispute is not just the issue of triple talaq but the prevalence of patriarchy among communities. All patriarchal societies are partial. Is it better for a woman to apply for divorce and fight for 16 years and get nothing?
  • Kurian Joseph, J: Are e-divorces also taking place?
  • Kapil Sibal: Divorces are happening even through whatsapp.
  • Kapil Sibal: We are not saying that Triple Talaq is good and should continue permanently. We also want to change but somebody else should not interfere & force the change on us.
  • Kapil Sibal ended his submissions for the day by saying the issue of Triple Talaq cannot be decided in 6 days.

Day 3, May 15th, 2017

  • Attorney General Mukul Rohatgi suggests the hearing of the issues relating to polygamy and Nikah Halala along with Triple Talaq. The bench says that the said matters will be taken up in future. The present hearing will be limited to the issue of Triple Talaq sue to time constraint.
  • Arguing on behalf of the Government, Attorney General: Most radical countries like Pakistan and Bangladesh are moving towards reforms but we, as a secular State, are still debating. You are guardians of the constitution. Examine if Triple Talaq is permissible under the constitution. The Government will bring a law if Triple Talaq is abolished. people will not be left in lurch.
  • J.S. Khehar, CJI: We are the guardians of minority as well as the majority. We will strike down Triple Talaq if Government can establish that it is not an integral part of Islam
  • Mukul Rohatgi: Supreme Court is not an ecclesiastical court to check whether Triple Talaq is essential to Islam or not. Stating that the Court was looking to the problem from wrong abgle, he said that Issues of Muslim marriage and divorce were separated from religion in Shariat Act way back in 1937 itself. The matter should be decided on the basis of fundamental rights of gender equality & human rights under Arts 14, 15, 21 & 51A of the Constitution.
  • J.S. Khehar, CJI: The tenets of religion can neither be tested on scientific grounds or on other grounds.
  • Mukul Rohatgi: Why is the matter being argued before the Constitution Bench then?. Matters are referred to the Constitution Bench because they have something to do with the Constitution. Nothing, no advocacy by man, will help cover something that is wrong by the Constitution.
  • Mukul Rohatgi: Women lived in fear of Sati until the law declared it illegal. Muslim women want freedom to live without fear of Triple Talaq.
  • J.S. Khehar, CJI: Women should be equal, but within the particular religion.
  • Mukul Rohatgi: A constitution bench cannot shut eyes to a Muslim woman’s constitutional rights of equality and gender justice.

Day 2, May 12th, 2017:

  • Court resumes the hearing.
  • R.F. Nariman, J.: One should see difference between theory & practicality at present context in the context of Nikah & Talaq in Islam.
  • Salman Khurshid: Triple Talaq is not practiced anywhere except India.
  • SC: Why all other countries say it is not valid in Islam?
  • Salman Khurshid: Triple Talaq is sinful and is discouraged. But still, it is valid in law.
  • SC: Is it like death penalty, which for some is sinful but legal. If lawful man can be sinful? What is sin in the eyes of God, can it be valid in law?
  • Salman Khurshi: It cannot be.
  • SC: We have to understand the religion from the point of view of what religion says not what you understand in order to test it on the principle of Article 25 (freedom to practice religion) of the Constitution. Tell us whether Triple Talaq is a custom/usage or fundamental to Islam. Where does it lie, Shariat or customs and usage?
  • Senior Advocate Ram Jethmalani, appearing for Forum for Awareness of National Security: Triple Talaq violates Article 14 as it gives the right to terminate marriage only to men and not to women.
  • J.S. Khehar, CJI: The Court is dealing with Personal Law in the present matter and  Article 15 of the Constitution talks about State law.
  • Ram Jethmalani: Triple Talaq makes a distinction on the ground of sex & this method is abhorrent to the tenets of holy Quran and no law can allow a wife to become an ex-wife at the fancy of the husband. No amount of advocacy can or will save this sinful, repugnant practice which is contrary to the constitutional provisions.
  • SC: There are some school of thoughts which say that Triple Talaq is legal but it is the worst and an undesirable form of marriage dissolution.
  • The matter is listed for further hearing on 15.05.2017 as part heard.

Day 1, May 11th, 2017:

  • Amit Singh Chadha, appearing for one of the petitioners Shayara Bano: The practice of Triple Talaq is not fundamental to Islam and hence can be done away with. Islamic countries like Pakistan and Bangladesh have also declared it to be invalid.
  • SC: We would peruse the prevalent laws in various Islamic countries on the issue.
  • Senior Advocate Indira Jaising, appearing for petitioners: In case of divorces being granted through extra-judicial mechanism, there should be a “judicial oversight” to deal with the consequences.
  • Senior advocate Salman Khurshid, assisting the Court in his personal capacity and Senior advocate Kapil Sibal, appearing on behalf of the All India Muslim Personal Law Board: Triple Talaq is a non issue.
  • Kapil Sibal: No prudent Muslim would wake up one fine morning and say talaq, talaq and talaq. Salman Khurshid said Triple Talaq not considered complete without conciliation efforts between the husband and the wife.
  • SC: Is the reconciliation after the pronouncement of triple talaq in one go codified?
  • Salman Khurshid: No, it’s not
  • Kapil Sibal: Triple Talaq issue is outside the ambit of judicial review.
  • SC: The issue is, in fact, prima facie related to fundamental rights.
  • SC: If Triple Talaq is declared invalid, what will be the procedure available to husband for seeking divorce? Will it not create a vacuum?

It is important to note that recently on 19.04.2017, the Allahabad High Court has termed triple talaq as unconstitutional, observing that the practice is violation of a woman’s rights. The Constitution bench is hearing the matter during the summer vacations of the Court, in the suo motu proceedings initiated by the Court in In Re: Muslim Women’s Quest for Equality v. Jamiat Ulma-I-Hind, SMW(C) No. 2/2015 with a bunch of related petitions being merged with the case.

Source: PTI & ANI


As per the Circulars dated 05.05.2017, the Constitution bench of 5-judges will hear the below mentioned matters during summer vacations that are commencing from 11.05.2017:

  • In Re: Muslim Women’s Quest for Equality v. Jamiat Ulma-I-Hind, SMW(C) No. 2/2015  – The Triple talaq matter from 11.05.2017. The Circular, however, did not mention the names of the 5-judges who will be hearing the matter.
  • Karmanya Singh Sareen v. Union of India, SLP(C) No. 804/2017 – The Whatsapp Data Privacy matter from 15.05.2017. Dipak Misra, Dr. A.K. Sikri, Amitava Roy, A.M. Khanwilkar and M.M. Shantanagouda, JJ are hearing the matter.
Case BriefsSupreme Court

Supreme Court: The Bench of Dipak Misra and R.F. Nariman, JJ referred the matter relating to referring and relying upon the report of the Parliamentary Standing Committee in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, before a Constitution Bench regard being had to the substantial question of law relating to interpretation of the Constitution involved.

The Court also asked the Constitution Bench to decide as to was as to whether such a Report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive.

The Court was hearing the petition relating to action taken by the Drugs Controller General of India and the Indian Council of Medical Research (ICMR) pertaining to approval of a vaccine, namely, Human Papilloma Virus (HPV)  for preventing cervical cancer in women and the experimentation of the vaccine was done as an immunization by the Governments of Gujarat and Andhra Pradesh, before bifurcation, and the 81st Report dated 22nd December, 2014 of the Parliamentary Standing Committee was brought into the notice of the Court

The Court was of the prima facie opinion that the Parliamentary Standing Committee report may not be tendered as a document to augment the stance on the factual score that a particular activity is unacceptable or erroneous. It was opined that the view of a member of the Parliament or a member of the Parliamentary Standing Committee who enjoys freedom of speech and expression within the constitutional parameters and the rules or regulations framed by the Parliament inside the Parliament or the Committee is not to be adverted to by the court in a lis. Explaining the nature of the reports, the Court said that the reference to Constituent Assembly debates, reports of the Parliamentary Standing Committee and the speeches made in the Parliament or for that matter, debates held in Parliament are only meant for understanding the Constitution or the legislation, as the case may be. It is quite different than to place reliance upon Parliamentary Standing Committee report as a piece of evidence to establish a fact. [Kalpana Mehta v. Union of India, 2017 SCC OnLine SC 390, decided on 05.04.2017]