The story so far: A Bench led by Chief Justice of India (CJI) D.Y. Chandrachud will hear six pending seven-judge Constitution Bench matters on October 12, for completion of procedural formalities before the onset of final hearings. These cases are of immense constitutional significance and also have political ramifications — for instance, the Bench will reconsider its 2016 decision in Nabam Rebia v. Deputy Speaker, which will have a significant bearing on the Maharashtra political crisis that led to the ouster of former Chief Minister Uddhav B. Thackeray.
Other cases pertain to the contentious issue of the minority status of the Aligarh Muslim University, the passage of crucial laws such as the Aadhaar Act as a ‘Money Bill’, re-distribution of quota within the Scheduled Caste reservation on the basis of backwardness of communities, freedom of press vis-a-vis legislative privileges and the competence of State legislatures to levy additional taxes.
1. Arjun Flour Mills v. State of Orissa [C.A. 8763/1994]
The constitutional validity of Section 5-A of the Orissa Sales Tax Act, 1947, which imposed a surcharge on the total sales tax payable by a dealer, and the comptence of the State Legislature to impose such a surcharge.
Section 5-A of the Orissa Sales Tax Act, 1947, imposed a surcharge on the total sales tax payable by a dealer, and the question arose as to whether it was constitutionally valid and whether a State legislature was competent to levy such a surcharge. This is as the Seventh Schedule of the Constitution outlines the specific subject matters that can be legislated upon by the Parliament and State legislatures respectively.
Timeline of case
August 13, 1998: A Division Bench of the Supreme Court referred the matter to a larger Bench of five judges for consideration because of the conflicting decisions in Hoechst Pharmaceuticals Ltd. v. State of Bihar (1983) and India Cement Ltd. v. State of Tamil Nadu (1989) by a three-judge Bench and a seven-judge Bench respectively. In Hoechst Pharmaceuticals Ltd, a similar provision under the Bihar Finance Act, 1981, which levied a surcharge on sales tax was upheld on the ground that it was in the nature of sales tax and therefore within the State Legislature’s competence.
In India Cement, a cess was imposed on the royalty payable for land excavation by the State legislature, with the State contending that the cess was in the nature of land revenue, which is a State subject under the Seventh Schedule. However, the seven-judge Bench held that a cess on royalty for land excavation was not a cess on the land in question, but on the royalty itself, and therefore, outside the competence of the State legislature.
October 6, 1999: The five-judge Bench referred the matter to a seven-judge Bench in light of the judgment passed in S Kodar v. State of Kerala (1974), where the validity of the Tamil Nadu Additional Sales Tax Act, 1970 was challenged. Here, the Court had held that an additional tax constitutes a tax on the sale of goods and therefore fell within the State legislature’s competence.
2. N. Ravi & Ors v. Speaker, Legislative Assembly, Chennai [W.P. (Crl.) No. 206-210/2003]
Whether privileges and immunities of the Houses of the Legislature available under Article 194 of the Constitution override the freedom of press guaranteed under Article 19(1)(a)?
In 2003, the Tamil Nadu Assembly issued arrest warrants for five senior journalists of The Hindu, and the Editor of Murasoli, a Tamil daily, on charges of breach of privilege and gross contempt. The then Speaker of the Assembly, K Kalimuthu, issued the order in connection with editorials published about speeches by then Chief Minister, Ms. Jayalalitha in the State Assembly. On November 10, 2003, the Supreme Court imposed a stay on the arrest warrants and issued notices to the Assembly Speaker, the Assembly Secretary, the Tamil Nadu Director General of Police, the Chennai Police Commissioner and two other officials.
On July 8, 2021, while upholding the validity of the summons issued to Facebook by the Delhi Assembly’s Peace and Harmony Committee over the 2020 riots in northeast Delhi, the Supreme Court called for a quick disposal of this case.
Timeline of case
December 8, 2003: A Division Bench of the Supreme Court directed that the matter be placed before a five-judge Bench as it believed it involved substantial questions of interpretation of Constitutional provisions pertaining to the privileges of the members of the legislature, and its interplay with the freedom of the press to criticise the legislature’s functioning.
December 8, 2004: The five-judge Bench referred the matter to a seven-judge Bench after taking into consideration the conflicting rulings in Pandit MSM Sharma v. Shri Sri Krishna Sinha (1959) and Re: Powers, Privileges and Immunities of State Legislatures (1965). In the former, a five-judge Bench held that the freedom of speech and expression under Article 19(1)(a) is subject to the immunity and powers conferred upon the House under Article 194(3). However, in the latter, a seven-judge Bench ruled that the exercise of legislative privileges under Article 194(3) is subject to the fundamental right of protection of life and personal liberty guaranteed by Article 21.
3. Aligarh Muslim University Through its Registrar Faizan Mustafa v. Naresh Agarwal & Ors [C.A. No. 2286/2006]
Aligarh Muslim University’s status as a ‘minority educational institution.’
In 1920, the Aligarh Muslim University was established under the Aligarh Muslim University Act, 1920, primarily for the education of Muslims. The Act stipulated that only Muslims could be members of the University’s governing body. However, subsequent amendments were in 1951 and 1965 permitted even non-Muslims to become members of the governing body.
In 1981, vide an amendment, the term ‘University’ under Section 2(l) of the Act was retrospectively redefined to mean ‘the educational institution of their choice established by the Muslims of India, which originated as the Muhammadan Anglo-Oriental College, Aligarh, and which was subsequently incorporated as the Aligarh Muslim University.’ The amendment also introduced Section 5(2)(c), which stipulated that the University was empowered to specifically promote educational and cultural advancement of Muslims.
In 2005, the University decided to reserve 50% of seats in their post-graduate medical courses for Muslim candidates, prompting the filing of multiple petitions in the Allahabad High Court challenging the move.
Timeline of case
October 4, 2005: The High Court observed that the University was not a ‘minority institution’ within the meaning of Article 30 of the Constitution and held the reservation of 50% seats to be unconstitutional.
February 12, 2019: A three-judge Bench of the Supreme Court referred the matter to a seven-judge Bench. It believed that an earlier five-judge Bench decision in S. Azeez Basha v. Union of India (1968) — which held that an institution had to be mandatorily established by a minority to classify as a minority institution under Article 30— required re-evaluation. It was also noted that although S. Azeez Basha had been referred to a seven-judge Bench in 1981, no authoritative pronouncement had been rendered.
4. The State of Punjab v. Davinder Singh [C.A. No. 2317/2011]
Sub-classification within seats reserved for Scheduled Castes in the State of Punjab.
The Punjab government in 2007 passed the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006, which provided for sub-classification within seats reserved for Scheduled Castes. The provision stipulated that 50% of vacancies in the quota for Scheduled Castes in direct recruitment would first be offered to Balmikis and Mazhabi Sikhs. This was subsequently challenged in the Punjab & Haryana High Court.
Timeline of case
March 29, 2010: The High Court struck down Section 4(5) of the Act as unconstitutional, citing E.V. Chinnaiah v. State of Andhra Pradesh (2004), where a five-judge Bench of the Supreme Court held that any ‘sub-classification’ of the Scheduled Castes would violate Article 14 of the Constitution. It also highlighted that only the Parliament, and not State legislatures, was empowered to exclude specific castes from the Presidential List under Article 341.
August 20, 2014: A three-judge Bench opined that the ratio in E.V. Chinnaiah needed to be reconsidered by a five-judge Bench.
August 27, 2020: The five-judge Bench referred the matter to a Bench of seven judges after opining that they could not revisit E.V. Chinnaiah as a “Bench of coordinate strength.” It also endorsed the view of the earlier three-judge Bench that E.V. Chinnaiah needed to be revisited by a larger Bench.
5. Rojer Mathew v. South Indian Bank Limited [C.A. No. 8588/2019]
Could the Finance Act, 2017 which introduced changes in the administration of tribunals, have been passed as a ‘Money Bill’ in the Parliament?
A Money Bill has been defined under Article 110 of the Constitution as a draft law that must deal “only” with matters specified in Article 110 (1)(a) to (g) — taxation, borrowing by the government, and appropriation of money from the Consolidated Fund of India, among others. As per Article 110(1)(g), “any matter incidental to any of the matters specified in Articles 110(1)(a)-(f)” can also be classified as a Money Bill. Importantly, unlike other bills, a Money Bill can be introduced only in the Lok Sabha, and the Rajya Sabha cannot amend or reject such bills.
This Money Bill provision has invited controversy over time after the government started introducing crucial laws such as the Aadhaar Bill, amendments to the Prevention of Money Laundering Act, 2002 (PMLA), and the Foreign Contributions Regulations Act, 2010, as Money Bills, purportedly to circumvent the Rajya Sabha where it does not enjoy a majority.
In K.S. Puttaswamy v. Union of India (2018), the Supreme Court while upholding the constitutionality of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, by a 4:1 majority stated that no illegality was committed by passing the Aadhaar Bill as a Money Bill in the Parliament. Justice Chandrachud, however, dissented, observing that the passage of the Act as a Money Bill constituted a “fraud on the Constitution”.
Timeline of case
February 8, 2019: A Division Bench of the Supreme Court referred the matter to a larger Bench of five judges.
November 13, 2019: The five-judge Bench struck down the amendment to the 2017 Finance Act, passed as a Money Bill, that altered the structure and functioning of various tribunals. Referring to the majority dictum in Puttaswamy, the Bench noted that it did not substantially discuss the effect of the word “only” in Article 110(1) or examine the repercussions if some of the provisions of an enactment passed as a “Money Bill” are found to not conform to Article 110(1)(a) to (g).
Pointing out that the Money Bill issue in Puttaswamy was “not convincingly reasoned” and could lead to a potential conflict in interpretation, the Bench referred the matter to a seven-judge Bench, since it was similar in strength to the Puttaswamy Bench.
6. Subhash Desai v. Principal Secretary Governor of Maharashtra [WP(c) 493/2022]
Whether issuing a notice of intention to move a resolution for the removal of the Speaker restrains them from adjudicating disqualification petitions under the Tenth Schedule of the Constitution?
The case pertains to the Maharashtra political crisis that began in June 2022, when the current Chief Minister Eknath S. Shinde and a large number of MLAs from the Shiv Sena rebelled against then Chief Minister Uddhav B. Thackeray in the Maharashtra Vidhan Sabha, eventually leading to the end of Maha Vikas Aghadi (MVA) government, comprising of the Shiv Sena, the Nationalist Congress Party and the Indian National Congress). This petition was filed by the then general secretary of the Thackeray-led Shiv Sena, Subhash Desai, challenging the governor’s invitation to Mr. Shinde to form the government.
August 23, 2022: A three-judge Bench of the Supreme Court comprising the then CJI N.V. Ramana and Justices Krishna Murari and Hima Kohli observed that the matter raised important constitutional questions on the interpretation of the Tenth Schedule of the Constitution (Anti-Defection law) and accordingly referred it to a five-judge Bench for consideration.
The Bench formulated ten questions in the reference order pertaining to the power of the Speaker or the Deputy Speaker to initiate disqualification proceedings, while proceedings on their removal are pending. Reference was also made to the five-judge Constitution Bench ruling in Nabam Rebia v. Deputy Speaker (2016), wherein it was held that the Speaker of a House cannot decide a disqualification petition filed under the anti-defection law while a notice under Article 179(c) for their removal is pending.
May 11, 2023: Opining that a substantial question of law remains to be settled, the five-judge Bench comprising CJI D.Y. Chandrachud and Justices Hima Kohli, M.R. Shah, Krishna Murari, and P.S. Narasimha unanimously decided to refer the Nabam Rebia ruling to a Bench of seven judges for consideration. The Bench also took into account the conflict between the Nabam Rebia judgment and another five-judge Bench ruling in Kihoto Hollohan v. Zachillhu & Ors (1992) with regard to the scope of judicial interference in disqualification proceedings against a Speaker at an interlocutory stage.