Case BriefsSupreme Court Roundups

Did you know? In the year 2020,

    • All the Constitution bench verdicts were unanimous with no dissenting opinion.
    • 9 out of 11 Constitution bench judgments were delivered by benches consisting of Justices Arun Mishra, Indira Banerjee, Vineet Saran and M.R. Shah, followed by Justices Aniruddha Bose and S. Ravindra Bhat who were part of Constitution benches in 5 and 4 cases, respectively.

As we look forward to the new year of 2021, here is a quick recap of the Constitution bench verdicts delivered by the Supreme Court of India in 2020.

1. Questions of law can be referred to larger bench while hearing a review petition

9-judge bench: SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ

After renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected, the 9-judge bench held that the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges. [Read: Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held]

Read more…

[Kantaru Rajeevaru v. Indian Young Lawyers Assn, (2020) 3 SCC 52]


2. Pleas challenging the abrogation of Article 370 not referred to a larger bench

5-judge bench: NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ

The bench refused to refer the petitions challenging the constitutional validity of the Centre’s move to abrogate Article 370 to a larger bench. Holding that there is no conflict between the judgments in the Prem Nath Kaul case and the Sampat Prakash casethe bench said that judgments cannot be interpreted in a vacuum, separate from their facts and context. Observations made in a judgment cannot be selectively picked in order to give them a particular meaning. It noted,

the Constitution Bench in the Prem Nath Kaul case did not discuss the continuation or cessation of the operation of Article 370 of the Constitution after the dissolution of the Constituent Assembly of the State. This was not an issue in question before the Court, unlike in the Sampat Prakash case where the contention was specifically made before, and refuted by, the Court. This Court sees no reason to read into the Prem Nath Kaul case an interpretation which results in it being in conflict with the subsequent judgments of this Court, particularly when an ordinary reading of the judgment does not result in such an interpretation.”

Read more…

[Dr. Shah Faesal v. Union of India, (2020) 4 SCC 1]


3. No time limit could be fixed while granting anticipatory bail

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and S. Ravindra Bhat, JJ

The bench 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.

Read more…

[Sushila Aggarwal v. State of NCT of Delhi,  (2020) 5 SCC 1]


4. No lapse of acquisition proceedings if government has ‘paid’ compensation

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and S. Ravindra Bhat, JJ

The bench unanimously held that the land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

Last year, Justice Arun Mishra, heading the Bench, had refused to recuse himself from hearing the case and had said,

“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.”

Justice Mishra’s recusal was sought on the ground that he was heading a Bench meant to re-examine a judgment that he had himself given in 2018 in in Indore Development Authority v. Shailendra, (2018) 3 SCC 412. 

Read more…

[Indore Development Authority v. Manohar Lal Sharma, (2020) 8 SCC 129]


5. States, and not MCI, have power to make reservation for in-service candidates in Post Graduate Medical Course 

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

The bench unanimously held that States have the legislative competence and/or authority to provide for a separate source of entry for in-service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III.

“…policy must provide that subsequent to obtaining the postgraduate degree by the concerned in-service doctors obtaining entry  in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for  such  sum the   respective  States  may   consider   fit  and  proper”

 The Court, however, specifically observed and clarified that the present decision shall operate prospectively, and any admissions given earlier taking a contrary view shall not be affected by this judgment.

Read more…

[TN Medical Officers Association v. Union of India, 2020 SCC OnLine SC 699]


6. Sub-classification of Scheduled Castes| E.V. Chinnaiah decision to be revisited; Matter referred to larger bench

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

After noticing that a 5-Judge Bench in E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, is required to be revisited, the bench referred the matter to a larger bench and said,

“Reservation was not contemplated for all the time by the framers of the Constitution.  On the one hand, there is no exclusion of those who have come up, on the other hand, if sub¬classification is denied, it would defeat right to equality by treating unequal as equal.”

Read more…

[State of Punjab v. Davinder Singh, (2020) 8 SCC 1]


7. SARFAESI Act applicable to Co­operative Banks

5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ

The bench unanimously 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.

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.”

Read more…  

[Pandurang Ganpati Chaugale v. Vishwasrao Patil Murgud Sahakari Bank Ltd,  (2020) 9 SCC 215]


8. Andhra Pradesh’s 100% reservation for Scheduled Tribe candidates for the post of teachers without rhyme or reason

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ 

Holding the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh providing 100% reservation to the Scheduled Tribe candidates out of whom 33.1/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh, unconstitutional, the bench said that there was no rhyme or reason with the State Government to resort to 100% reservation.

“It was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney and other decisions holding that the limit of reservation not to exceed 50%.”

Read more…

[Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, 2020 SCC OnLine SC 383]


9. District Forum can’t extend limitation period of 45 days for filing response under Section 13 of Consumer Protection Act

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ

The bench unanimously held that the District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act, 1986.

The bench was answering the reference relating to the grant of time for filing response to a complaint under the provisions of the Consumer Protection Act, 1986 wherein the answers to the following questions were sought:

  • whether Section 13(2) (a) of the Consumer Protection Act, which provides for the respondent/opposite party filing its response to the complaint within 30 days or such extended period, not exceeding 15 days, should be read as mandatory or directory; i.e., whether the District Forum has power to extend the time for filing the response beyond the period of 15 days, in addition to 30 days.
  • what would be the commencing point of limitation of 30 days stipulated under the aforesaid Section.

Read more…

[New India Assurance v. Hilli Multipurpose Cold Storage Pvt. Ltd., (2020) 5 SCC 757]


10. Accused under NDPS Act not entitled to acquittal as a blanket rule merely because the complainant is the investigating officer

5-judge bench: Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S. Ravindra Bhat, JJ

The bench unanimously held that the accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is not entitled to an acquittal as a blanket rule merely because the complainant is the investigating officer.

“… merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis.”

Read more…

[Mukesh v. State (Narcotic Branch of Delhi), (2020) 10 SCC 120]


11. State Government cannot fix the “minimum price” of sugarcane once Centre has already fixed it

5-judge bench: Arun Mishra, Indira Banerjee and Vineet Saran, M.R. Shah and Aniruddha Bose, JJ,

The bench unanimously held that once the Central Government having exercised the power under Entries 33 and 34 List III of seventh Schedule and fixed the “minimum price”, the State Government cannot fix the “minimum price” of sugarcane.

By virtue of Entries 33 and 34 List III of seventh Schedule, both the Central Government as well as the State Government have the power to fix the price of sugarcane. The Court, however, clarified that

“it is always open for the State Government to fix the “advised price” which is always higher than the “minimum price”, in view of the relevant provisions of the Sugarcane (Control) Order, 1966, which has been issued in exercise of powers under Section 16 of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953.”

Read more…

[West UP Sugar Mills Association v. State of Uttar Pradesh, (2020) 9 SCC 548]


Also read:

Supreme Court year-end roundup| From important judgments to unmissable facts and stories, here’s a comprehensive roundup of all that happened in 2020

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, hearing the Sabarimala reference has held that the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction. The bench had, on February 6, 2020, reserved it’s order on the said legal issue while hearing the Sabarimala reference after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.

The Court also framed 7 seven questions that are to be decided by the 9-judge bench in the Sabarimala reference and has proposed a day-to-day hearing in the matter from February 17, 2020. The issues to be heard relate to:

  • What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
  •  What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
  • Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
  • What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
  • What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
  • What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
  • Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?

Earlier, CJI Bobde had said that the court will examine the matter and hear the scope of judicial review on the point of religious faith and women’s rights. He had fixed a 10-day period for concluding the hearing on the petition seeking women’s entry into Sabarimala temple, mosques, and Parsi Agiyari.
The Court had on January 13 said that it will only hear the questions referred to in the review order passed by it in November last year in the Sabarimala temple case, which allowed women and girls of all age groups to visit the shrine in Kerala. The bench had asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing. The Counsels were, however, unabale to reach a consensus on the issues to be argued. 

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges.

The court is hearing a clutch of petitions seeking reconsideration of its September 2018 judgment that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.

The Court in a landmark 4:1 ruling had set aside decades-old restrictions on the entry of women of menstruating age inside the temple.
The verdict had sparked a series of protests across the state, which eventually led to the filing of several petitions seeking review of the top court’s order challenging the authority of the court to intervene in a belief of the people.

[Kantaru Rajeevaru v. Indian Young Lawyers Assn, 2020 SCC OnLine SC 158 , decided on 10.02.2020]

Also read:Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Hot Off The PressNews

Supreme Court: The 9-judge bench of SA Bobde, CJ and R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant, JJ, hearing the Sabarimala reference has reserved it’s order on the legal issue of whether the Supreme Court can refer questions of law to a larger bench while exercising its review jurisdiction. The bench will pronounce the order on February 10, 2020 and will accord a day-to-day hearing from February 12, 2020 on issues relating to discrimination against women at various places of worship including the Sabarimala temple.

Solicitor General Tushar Mehta submitted before the Court that the 5-judge bench in Kantaru Rajeevaru v. India Young Lawyers’ Association, 2019 SCC OnLine SC 1461 was right in referring the questions of law to the larger bench. He said,

“As custodian of fundamental rights, it was the duty of the court to lay down an authoritative pronouncement on these questions of law.”

Senior advocate Fali S Nariman opposed the submission and said that only the President can ask questions of national importance, not the court.

Earlier, the bench had agreed to hear the argument on the issue whether the court can refer questions of law to a larger bench on a review petition after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.

In our report dated 14.11.2019, we had pointed out that the order passed by the 5-judge bench in Kantaru Rajeevaru v. India Young Lawyers’ Association, 2019 SCC OnLine SC 1461 was debatable as involved a reference to a larger bench in a review petition. We wrote,

“If it is believed that a reference has indeed been made in the majority verdict, it will again be debatable on the ground that a reference cannot be made in a review petition. A judgment of the Supreme Court of is final, and a review of such judgment is an exception. Whatever the Court decides in a Review Petition become the law. So will a reference of a review petition to a larger bench mean creation of a new forum? Too many loose ends have been left in the majority verdict that the Court will have to tie up sooner or later.”

The bench is hearing matters relating to discrimination against women in various religions including Kerala’s Sabarimala temple, mosques, the practice of female genital mutilation in the Dawoodi Bohra community and Parsi women married to non-Parsi men being barred from its holy fire temple.

Overlapping or related issues pending before the Supreme Court

Earlier, CJI Bobde had said that the court will examine the matter and hear the scope of judicial review on the point of religious faith and women’s rights. He had fixed a 10-day period for concluding the hearing on the petition seeking women’s entry into Sabarimala temple, mosques, and Parsi Agiyari.
The Court had on January 13 said that it will only hear the questions referred to in the review order passed by it in November last year in the Sabarimala temple case, which allowed women and girls of all age groups to visit the shrine in Kerala. The bench had asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges.

The court is hearing a clutch of petitions seeking reconsideration of its September 2018 judgment that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.

The Court in a landmark 4:1 ruling had set aside decades-old restrictions on the entry of women of menstruating age inside the temple.
The verdict had sparked a series of protests across the state, which eventually led to the filing of several petitions seeking review of the top court’s order challenging the authority of the court to intervene in a belief of the people.

(With inputs from News18)


Also read:

Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Hot Off The PressNews

Supreme Court: A nine-judge Constitution bench of the Supreme Court will hear on February 6 argument on the issue whether the court can refer questions of law to a larger bench on a review petition after renowned jurist and senior advocate Fali Nariman objected to the manner in which the Supreme Court turned a review of the Sabarimala case into an opportunity to set up a nine-judge Bench and examine whether certain essential religious practices of various faiths, including Islam and Zoroastrianism, should be constitutionally protected.

CJI asked,

“Are you saying that when hearing the review of one judgment [Sabarimala in this case], we cannot refer such larger questions to a larger Bench?”

To which Mr. Nariman responded,

“Yes, that is absolutely right. It will be outside your jurisdiction to do that,”

Finding a formidable point in Mr. Nariman’s arguments, CJI said that the nine-judge Bench would not “abort the hearing” now but the objections raised by Mr. Nariman would be framed as an “issue” to be decided by the Bench.

In our report dated 14.11.2019, we had pointed out that the order passed by the 5-judge bench in Kantaru Rajeevaru v. India Young Lawyers’ Association, 2019 SCC OnLine SC 1461 was debatable as involved a reference to a larger bench in a review petition. We wrote,

“If it is believed that a reference has indeed been made in the majority verdict, it will again be debatable on the ground that a reference cannot be made in a review petition. A judgment of the Supreme Court of is final, and a review of such judgment is an exception. Whatever the Court decides in a Review Petition become the law. So will a reference of a review petition to a larger bench mean creation of a new forum? Too many loose ends have been left in the majority verdict that the Court will have to tie up sooner or later.”

The bench is hearing matters relating to discrimination against women in various religions including Kerala’s Sabarimala temple, mosques, the practice of female genital mutilation in the Dawoodi Bohra community and Parsi women married to non-Parsi men being barred from its holy fire temple.

Overlapping or related issues pending before the Supreme Court

Earlier, CJI Bobde had said that the court will examine the matter and hear the scope of judicial review on the point of religious faith and women’s rights. He had fixed a 10-day period for concluding the hearing on the petition seeking women’s entry into Sabarimala temple, mosques, and Parsi Agiyari.
The Court had on January 13 said that it will only hear the questions referred to in the review order passed by it in November last year in the Sabarimala temple case, which allowed women and girls of all age groups to visit the shrine in Kerala. The bench had asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges.

The court is hearing a clutch of petitions seeking reconsideration of its September 2018 judgment that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.

The Court in a landmark 4:1 ruling had set aside decades-old restrictions on the entry of women of menstruating age inside the temple.
The verdict had sparked a series of protests across the state, which eventually led to the filing of several petitions seeking review of the top court’s order challenging the authority of the court to intervene in a belief of the people.


Also read:

Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Hot Off The PressNews

Supreme Court: The nine-judge bench of Supreme Court will hear the Sabarimala  matter again on Thursday after hearing the matter today.

Solicitor General (SG) Tushar Mehta told the Court that the issues can be framed in the chambers itself. He stated that there is no need to frame the questions and other issues if relevant, in an open court. After hearing Mehta’s submissions, CJI SA Bobde observed that there are questions that arose in Sabarimala, and also there are questions that are there in other cases such as Muslim women’s demand to enter mosques, and the FGM in Dawoodi Bohras and whether Parsi women married to non-Parsis lose religion.

Earlier, CJI Bobde had said that the court will examine the matter and hear the scope of judicial review on the point of religious faith and women’s rights. He had fixed a 10-day period for concluding the hearing on the petition seeking women’s entry into Sabarimala temple, mosques, and Parsi Agiyari.
The Court had on January 13 said that it will only hear the questions referred to in the review order passed by it in November last year in the Sabarimala temple case, which allowed women and girls of all age groups to visit the shrine in Kerala. The bench had asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges.

The court is hearing a clutch of petitions seeking reconsideration of its September 2018 judgment that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.

The Court in a landmark 4:1 ruling had set aside decades-old restrictions on the entry of women of menstruating age inside the temple.
The verdict had sparked a series of protests across the state, which eventually led to the filing of several petitions seeking review of the top court’s order challenging the authority of the court to intervene in a belief of the people.

(With inputs from ANI)



Read more about the opinions of all the judges in the 4:1 majority verdict here.

Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Hot Off The PressNews

Supreme Court: A three-judge bench of the Supreme Court, headed by CJI Sharad Arvind Bobde has fixed a 10-day period for concluding the hearing on the petition seeking women’s entry into Sabarimala temple, mosques, and Parsi Agiyari. The bench was hearing the petitions pertaining to the discrimination against women at places of worship.

Solicitor General Tushar Mehta mentioned the matter before the Court and said that all the lawyers from various parties in the case sat together and discussed the issue but could not reach a consensus on the matter, which is to be heard by a 9-judge constitution bench.
The Supreme Court had on January 13 said that it will only hear the questions referred to in the review order passed by it in November last year in the Sabarimala temple case, which allowed women and girls of all age groups to visit the shrine in Kerala. The bench had asked counsels to consult each other and decide which issue is to be argued by whom as done during Ayodhya hearing.

The Court had in November last year, suggested that the Sabarimala issue along with other related issues, be heard by a larger bench of at least 7-judges.

The court is hearing a clutch of petitions seeking reconsideration of its September 2018 judgment that lifted the bar on menstruating women from worshipping in the Sabarimala temple in Kerala.

The Court in a landmark 4:1 ruling had set aside decades-old restrictions on the entry of women of menstruating age inside the temple.
The verdict had sparked a series of protests across the state, which eventually led to the filing of several petitions seeking review of the top court’s order challenging the authority of the court to intervene in a belief of the people.

(With inputs from ANI)



Read more about the opinions of all the judges in the 4:1 majority verdict here.

Sabarimala Review Petitions Not Referred To A Larger Bench, But Kept Pending. Here’s What Supreme Court Has Actually Held

Hot Off The PressNews

Supreme Court: A nine-judge Constitution bench headed by Chief Justice S A Bobde will hear from January 13 the issue of allowing women and girls of all ages to enter Kerala’s Sabarimala temple, along with the other contentious issues of alleged discrimination against Muslim and Parsi women.

The other judges on the bench are Justices R Banumathi, Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S A Nazeer, R Subhash Reddy, B R Gavai and Surya Kant. Interestingly, none of the nine judges has previously been a part of any bench hearing the Sabarimala issue.  

The nine-judge bench has been set up after a five-judge bench headed by then CJI Ranjan Gogoi, by a 3:2 majority verdict, suggested that the matter be referred to a seven-judge bench while examining the review petition filed against the historic September 28, 2018 judgement which had allowed women of all ages to enter Sabarimala temple. The judgment dated 14.11.2019, delivered right before the retirement of the then CJI Justice Ranjan Gogoi, said,

“This Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges.”

Referring the issues connected to the case at hand, CJ Gogoi wrote that it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of JudgesHe, hence, ‘suggested’ that a 7-judge bench be formed to decide the abovementioned issues.

Besdies Justice Gogoi, Justices A M Khanwilkar and Indu Malhotra (the lone woman judge on the bench) were in majority while Justices R F Nariman and D Y Chandrachud had penned a minority verdict on November 14, 2019.

The top court had on Monday issued a notice informing about listing of the petition filed by Indian Young Lawyers Association seeking review of the 2018 judgement.

However, the names of the judges were announced today.

Questions that the Larger Bench ‘may’ take up for consideration as suggested in the November 14, 2019 verdict

  • Interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
  • Sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
  • Sweep of expression ‘morality’ or ‘constitutional morality. Is it over arching morality in reference to preamble or limited to religious beliefs or faith? There is need to delineate the contours of that expression, lest it becomes subjective.
  • The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
  • Meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
  • Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
  • What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

The majority verdict also suggested that the Larger Bench may also decide the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the Sabarimala temple at all.

(With inputs from PTI)

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: The 5-judge Constitution Bench of Ranjan Gogoi, CJ and RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, JJ has referred certain seminal issues to a larger bench in a 3:2 verdict. CJI Gogoi, Khanwilkar and Malhotra, JJ gave the majority opinion of referring the the questions to larger bench, whereas Nariman and Chandrachud, JJ gave dissenting opinions.

Due to the reference being made to the larger bench, the subject review petitions as well as the writ petitions will remain pending until determination of the questions indicated hereunder by a Larger Bench.

Surprisingly, the majority verdict runs in only 6-pages in a 77-pages long verdict.

Majority Verdict by CJ Gogoi for himself & Khanwilkar & Malhotra, JJ

“This Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges.”

Referring the issues connected to the case at hand, CJ Gogoi wrote that it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges. He, hence, ‘suggested’ that a 7-judge bench be formed to decide the abovementioned issues. 

Questions that the Larger Bench ‘may’ take up for consideration

  • Interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14.
  • Sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution.
  • Sweep of expression ‘morality’ or ‘constitutional morality. Is it over arching morality in reference to preamble or limited to religious beliefs or faith? There is need to delineate the contours of that expression, lest it becomes subjective.
  • The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group.
  • Meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution.
  • Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26.
  • What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination?

The majority verdict also suggested that the Larger Bench may also decide the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the Sabarimala temple at all.

Overlapping or related issues pending before the Supreme Court

“The debate about the constitutional validity of practices entailing into restriction of entry of women generally in the place of worship is not limited to this case, but also arises in respect of entry of Muslim women in a Durgah/Mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari.”

The Court also took note of other seminal issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque; Parsi Women married to a non-Parsi in the Agyari; and including the practice of female genital mutilation in Dawoodi Bohra community and said that these issues may be overlapping and covered by the judgment under review and hence, the prospect of the issues arising in those cases being referred to larger bench cannot be ruled out.

    • Muslim Women in Durgah/Mosque Case is pending before a 3-judge bench of SA Bobde, SA Nazeer and Krishna Murari, JJ. On November 5, 2019, the bench had adjourned the matter for 10 days which means that the matter will now be taken up after Justice Bobde takes charge of the CJI office.
    • Parsi Women married to a non-Parsi in the Agyari case was referred to a 5-judge bench by a 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ in October, 2017. The 5-judge bench of former CJ Dipak Misra and AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, JJ last heard the matter on December 14, 2017. [2017 SCC OnLine SC 1275]
    • Case relating to practice of female genital mutilation in Dawoodi Bohra community was referred to a larger bench on September 24, 2018 by a 3-judge bench of former CJ Dipak Misra and AM Khanwilkar and DY Chandrachud, JJ. The Constitution bench is yet to be formed. [2018 SCC OnLine SC 2667]

Stay on the 2018 verdict

The verdict is silent on whether there will be a stay on the 2018 Sabarimala Verdict which means that the said judgment will continue to hold ground till the review petitions are finally decided by the Court.

Why the majority verdict is debatable?

‘Suggestive’ reference

The verdict does not make a clear reference of issues to a larger bench. The wordsthe prospect of the issues arising in those cases being referred to larger bench cannot be ruled outused in the majority verdict may mean to imply that the reference made by the Court is merely ‘suggestive’.

Nariman, J’s minority opinion also talks about the ‘suggestive’ nature of the references when it says,

“if and when the issues that have been set out in the learned Chief Justice’s judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras.”

Hence, it would not be completely wrong to say that this judgment merely suggests the Benches in the abovementioned 3 cases to refer the issues listed down by it to a larger bench if it thinks fit.

Reference of a review petition

If it is believed that a reference has indeed been made in the majority verdict, it will again be debatable on the ground that a reference cannot be made in a review petition. A judgment of the Supreme Court of is final, and a review of such judgment is an exception. Whatever the Court decides in a Review Petition become the law. So will a reference of a review petition to a larger bench mean creation of a new forum? Too many loose ends have been left in the majority verdict that the Court will have to tie up sooner or later.

It is also pertinent to note that in the majority verdict, no ‘error on the face of record’ has been pointed out. In fact, the majority verdict has not answered the review at all. Which explains why the majority verdict runs in only 6 pages and 9 paras.

Dissenting opinion by Nariman, J for himself and Chandrachud, J

“Bona fide criticism of a judgment, albeit of the highest court of the land, is certainly permissible, but thwarting, or encouraging persons to thwart, the directions or orders of the highest court cannot be countenanced in our Constitutional scheme of things.”

Disagreeing with the majority opinion that the Review Petitions be kept in a lurch while the larger bench decides the seminal issues concerning right to religion and women rights, Nariman and Chandrachud, JJ said that the only issue before the Court in the present case was the review petitions and the writ petitions that were filed in relation to the judgment in Indian Young Lawyers Association v. State of Kerala, 2018 SCC Online SC 1690.

Stating that if and when the issues that have been set out in the learned Chief Justice’s judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras, Nariman and Chandrachud, J said,

“What a future constitution bench or larger bench, if constituted by the learned Chief Justice of India, may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all.”

They, hence, went on to examine the issue at hand and noticed that there was a clear consensus on the following 3 issues:

  • The devotees of Lord Ayyappa do not constitute a separate religious denomination and cannot, therefore, claim the benefit of Article 26 or the proviso to Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965.
  • The four majority judgments specifically grounded the right of women between the ages of 10 to 50, who are excluded from practicing their religion, under Article 25(1) of the Constitution, emphasizing the expression “all persons” and the expression “equally” occurring in that Article, so that this right is equally available to both men and women of all ages professing the same religion.
  • Section 3 of the 1965 Act traces its origin to Article 25(2)(b) of the Constitution of India, and would apply notwithstanding any custom to the contrary, to enable Hindu women the right of entry 18 in all public temples open to Hindus, so that they may exercise the right of worship therein. As a concomitant thereof, Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is violative of Article 25(1) of the Constitution of India and ultra vires Section 3 of the 1965 Act.

Given the consensus on the three issues delineated above, Nariman, J, hence, wrote that no ground for review of the majority judgments was made out and the review petitions were hence dismissed.

Nariman and Chandrachud, JJ, hence, directed the State of Kerala to give wide publicity to the 2018 Sabarimala judgment through the medium of television, newspapers, etc. Pressing upon the need to implement the 2018 Sabarimala Verdict, they asked the government to take steps to secure the confidence of the community in order to ensure the fulfillment of constitutional values. The State government may have broad-based consultations with representatives of all affected interests so that the modalities devised for implementing the judgment of the Court meet the genuine concerns of all segments of the community, Nariman, J said in the minority opinion.

[Kantaru Rajeevaru v. India Young Lawyers’ Association, 2019 SCC OnLine SC 1461, decided on 14.11.2019]


Read more about the opinions of all the judges in the 4:1 majority verdict here.

Hot Off The PressNews

Supreme Court: Adding to the series of important rulings that are being passed before CJI Ranjan Gogoi retires, the Court is to pronounce 2 major verdicts tomorrow. CJI Gogoi retires on November 17, 2019.


SABARIMALA REVIEW PETITION


The 5-judge Constitution Bench of Ranjan Gogoi, CJ and RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, JJ will pronounce the verdict in a batch of petitions seeking review of its September 28, 2018 judgement that allowed women of all age groups to enter the Sabarimala temple in Kerala.

In the September 28, 2018 verdict the 5-judge Constitution Bench held that not allowing women of any age group to enter the Sabarimala Temple was unconstitutional. The lone dissenting opinion in the matter was that of Justice Indu Malhotra, who said:

the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. the petitioners herein did not claim to be devotees of the Sabarimala temple. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination.”

She was also of the opinion that in the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.

Read more about the opinions of all the judges in the 4:1 majority verdict here.


RAFALE REVIEW PETITION


The 3-judge bench of Ranjan Gogoi, CJ and Sanjay Kishan Kaul and KM Joseph, JJ will pronounce the verdict in the petition seeking review of it’s 2018 order where the bench had dismissed the petition seeking probe in the much talked about Rafale Deal by holding that there was no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government

The Bench, in the said order, said that they interacted with the senior Air Force Officers who answered Court queries including that of the acquisition process and pricing. Stating that it cannot sit in judgment over the wisdom of deciding to go in for purchase of 36 aircrafts in place of 126 and cannot possibly compel the Government to go in for purchase of 126 aircraft, the Court said

“Our country cannot afford to be unprepared/ underprepared in a situation where our adversaries are stated to have acquired not only 4th generation, but even 5th generation aircrafts, of which, we have none. It would not be correct for the Court to sit as an appellate authority to scrutinize each aspect of the process of acquisition.”

Read more about the 3-judge bench verdict in Rafale Deal case here.


Case BriefsHigh Courts

Kerala High Court: The Bench of Sunil Thomas, J. allowed the bail application filed by a member of a political party involved in protests against the entry of women in Sabarimala, on the ground that his custodial interrogation did not seem necessary for the investigation.

Petitioner herein was accused of offences punishable under Sections 143, 147, 148, 294(b), 506(ii), 324, 427, 332 and 307 read with Section 149 of Penal Code, 1860 and Section 3(2)(e) of Prevention of Damage to Public Property Act, 1984. Allegation of the prosecution was that on 02-01-2019, petitioner along with 350 people conducted a procession protesting against the entry of women in Sabarimala. They pelted stones at the office of a political party, on police officers, and also attacked the defacto complainant.

The Court noted that the earlier bail application filed by petitioner – leader of the political party – was dismissed by this Court considering that he had committed the main overt acts. He seems to be the. However, even though his earlier bail application was dismissed, the investigating agency had not arrested him till the date of this hearing. It seemed that the investigation had progressed considerably.

Considering the change of circumstances, it was opined that custodial interrogation of the petitioner may not be absolutely essential at that point of time. Hence, he was granted the benefit of pre-arrest bail.[Sivan v. State of Kerala, 2019 SCC OnLine Ker 1006, Order dated 26-03-2019]

Hot Off The PressNews

Supreme Court: The 5-judge Constitution Bench of Ranjan Gogoi, CJ and RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, JJ has reserved verdict on a batch of petitions seeking review of its September 28, 2018 judgement that allowed women of all age groups to enter the Sabarimala temple in Kerala.

In the September 28, 2018 verdict the 5-judge Constitution Bench held that not allowing women of any age group to enter the Sabarimala Temple was unconstitutional. The lone dissenting opinion in the matter was that of Justice Indu Malhotra, who said:

“the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. the petitioners herein did not claim to be devotees of the Sabarimala temple. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination.”

She was also of the opinion that in the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.

Read more about the opinions of all the judges in the 4:1 majority verdict here.

(With inputs from PTI)

Hot Off The PressNews

Supreme Court:  The Court said that it may not start the hearing on pleas seeking review of the Sabarimala verdict from January 22 , as Justice Indu Malhotra, one of the judges is on medical leave. Justice Indu Malhotra was the only woman judge of the five-judge constitution bench which had delivered the verdict in the Sabarimala case on September 28 last year. She was also the only judge who renderred a dissenting opinion in a 4:1 majority verdict.

The observation came after lawyer Mathews J Nedumpara mentioned the case and sought live streaming of hearing on the petitions seeking review of the apex court’s verdict allowing all women inside Sabarimala temple, on January 22.

In the September 28, 2018 verdict the 5-judge Constitution Bench held that not allowing women of any age group to enter the Sabarimala Temple was unconstitutional. Justice Indu Malhotra, in her dissenting opinion said:

“the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. the petitioners herein did not claim to be devotees of the Sabarimala temple. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination.”

She was also of the opinion that in the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.

Read more about the opinions of all the judges in the 4:1 majority verdict here.

(With inputs from PTI)