The Supreme Court of India reopened on July 8 after a month-and-a-half-long summer recess, and several crucial judgments and hearings are in the pipeline. This is especially significant since Chief Justice of India (CJI) D.Y. Chandrachud is due to retire in November this year. Judgments in several cases of constitutional importance — many over two decades old — are expected to be pronounced before this time.
Here’s a look at some of the most significant CJI-led Constitution Bench cases pending before the Court.
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Validity of Section 6A of Citizenship Act, 1955
What is the case?
The case pertains to a challenge of the constitutional validity of Section 6A of the Citizenship Act, 1955, inserted in furtherance of the Assam Accord signed between the Indian government and the representatives of the Assam Movement following the Indo-Pakistan War in 1971. Section 6A outlines a framework for recognising migrants in Assam as Indian citizens or expelling them based on the date of their migration.
Section 6A stipulates that people who came to Assam on or after January 1, 1966, but before March 25, 1971, from Bangladesh at the time of commencement of the Citizenship (Amendment) Act, 1985 and are resident in Assam will be able to register themselves as citizens of India. In November 2012, the Assam Sanmilita Mahasangha, a Guwahati-based civil society organisation, filed a petition challenging Section 6A on the ground that it discriminates against other Indian citizens by permitting different cut-off dates for regularising illegal migrants entering Assam and the rest of the country. It also sought the Court’s intervention in directing the concerned authority to update the National Register for Citizens (NRC) for Assam by taking into account the details available post the 1951 National Census instead of the electoral rolls prior to March 24, 1971.
Live-updates from Supreme Court hearing on Section 6A of the Citizenship Act | Day 1 | Day 2| Day 3| Day 4
What was argued?
The petitioners argued that singling out Assam was discriminatory as it violated the cultural, social, and political rights of indigenous citizens of one State even when the problem of illegal immigration was common to other States bordering Bangladesh. Defending the provision, the respondents pointed out that the protection of the cultural attributes of a region cannot be elevated to the extent of denying citizenship as it would lead to a transgression into ‘cultural nationalism’ from ‘civic nationalism,’ which goes against constitutional ethos. Notably, the Union government apprised the Court that 32,381 people were “detected to be foreigners” by Foreigners Tribunals (FTs) in Assam since 1966 and 17,861 persons registered with the Foreigners Regional Registration Office (FRRO) were granted citizenship as of October 31 last year. Moreover, the Chief Justice acknowledged that Section 6A was enacted as a humanitarian measure in the wake of the 1971 Bangladesh Liberation War and that it is deeply interwoven into the country’s history.
What is at stake?
The verdict will have a significant bearing on Assam’s NRC exercise. Further, if March 24, 1971, is upheld as a valid cut-off date for entry into the State, then the contentious Citizenship Amendment Act (CAA), 2019 may also be considered violative of the Assam Accord since it establishes a different timeline.
Is Aligarh Muslim University entitled to ‘minority status’?
What is the case?
The Court will decide whether Aligarh Muslim University (AMU) enjoys minority status under Article 30 of the Constitution. The provision stipulates that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. In S. Azeez Basha v. Union of India (1968), AMU was designated as a ‘central university,’ with the Court affirming that minority status cannot be conferred on such a university.
The ruling triggered nationwide protests from Muslims, following which the Aligarh Muslim University Act, 1920, (1920 Act) was amended in 1981 to explicitly affirm its minority status. The amendment introduced Section 2(l) and sub-section 5(2)(c), which stated that the University was “an educational institution of their choice established by the Muslims of India” and “subsequently incorporated” as the AMU. In 2005, the university implemented a reservation policy, reserving 50% of seats in postgraduate medical courses for Muslim candidates. This was challenged in the Allahabad High Court, which overturned the reservation and nullified the 1981 Act. In 2006, a batch of petitions, including one from the Union government, challenged the High Court’s decision in the Supreme Court. However, in 2016, the NDA government withdrew the appeal, saying that “as the executive government at the Centre, we can’t be seen as setting up a minority institution in a secular state.”
What was argued?
The petitioners argued that statutory regulations or state aid, as given to AMU, do not deprive an educational institution of its minority character. They underscored that rights under Article 30 cannot be extended so far back in time as to grant minority status to groups before the Constitution came into effect, without first determining whether such a group was a minority then. The Union government contended that AMU was a ‘loyalist’ institution that had surrendered its rights to the British government and assumed a secular character with the 1920 Act. However, this prompted the Chief Justice to remark that AMU’s political inclination did not affect its minority status.
What is at stake?
The judgment in this case will set a precedent impacting the rights and legal recognition of all minority institutions. If AMU is declared to be a minority institution, it would imply that students belonging to Scheduled Castes (SCs), Scheduled Tribes (STs), and Socially and Educationally Backward Classes (SEBCs) may not have access to the institution, since Article 15(5) of the Constitution, which introduced SC/ST/SEBC reservations in higher educational institutions, does not apply to minority institutions.
Is sub-categorisation within castes valid?
What is the case?
Over the years, States have contended that, despite reservation, some castes are grossly underrepresented compared to other, dominant Scheduled Castes (SCs). As a result, they have proposed implementing separate quotas for these castes within the existing SC quota of 15% to ensure that benefits are equitably distributed. The Court will decide if States have the power to create such sub-classifications or if this authority rests solely with the President.
In one of the earliest instances of existing reservations being ‘sub-classified’ by a State, the Punjab government in 1975 issued a circular stipulating that 50% of the total vacancies reserved for SCs in the State would be offered to Balmikis and Mazhabi Sikhs. In 2006, the Punjab and Haryana High Court struck down this notification citing the Supreme Court’s decision in E.V. Chinnaiah v State of Andhra Pradesh (2004).
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In Chinnaiah, a five-judge Bench quashed the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000, on the ground that it offended Article 341 of the Constitution, which allows the President of India to notify a list of SCs for each State and stipulates that the list can only be modified by Parliament.
Despite the 1975 circular being struck down, the Punjab government enacted a new law — the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006, which reintroduced provisions extending first preference to Balmikis and Mazhabi Sikhs. But in August 2020, when the judgement was appealed to the Supreme Court, it doubted the correctness of its earlier verdict in Chinnaiah and accordingly referred the matter to a larger seven-judge Bench for consideration.
What was argued?
During the proceedings, CJI Chandrachud remarked that not allowing sub-classification of SCs would lead to a situation where the “advanced” among them “would grab all benefits.” Concurring with this, senior advocate Kapil Sibal, appearing for the petitioners, asserted that the SCs were not a homogeneous group since there are varying levels of educational, economic and social development among them. The respondents, on the other hand, argued that such sub-classification could lead to balkanisation and pitting one SC against another. They pointed to instances such as the ethnic violence that erupted in Manipur following the High Court’s directive to the State government to include the Meitei community in the Scheduled Tribe list.
What is at stake?
The Court’s decision will have significant implications for the future of affirmative action and reservations under the Constitution. It can also thwart attempts made by States like Punjab, Bihar, and Tamil Nadu to bring in reservation laws to sub-categorise SCs. For instance, in an election rally in Telangana last year, Prime Minister Narendra Modi promised to constitute a committee to look into the issue — a move that has been read as an attempt by the BJP to woo the Madiga community. The Madigas have claimed that their share of representation was being taken up by another SC community, the Malas.
Is private property a community resource?
What is the case?
The Court will decide if private property can be considered “material resources of the community” under Article 39(b) of the Constitution. The provision is a part of the Directive Principle of State Policy (DPSP) and imposes an obligation on the state to frame a policy to ensure that the “ownership and control of material resources of the community” are distributed in such a way that they “subserve the common good.” It was introduced to secure the political freedom of citizens by protecting them against excessive state action.
The petitions concern the constitutional validity of Chapter-VIIIA, introduced in 1986 as an amendment to the Maharashtra Housing and Area Development Act (MHADA) of 1976. The provision allowed the Mumbai Building Repair and Reconstruction Board (MBRRB) to acquire cessed properties with the consent of 70% of the residents for restoration purposes. Section 1A of the Act stipulated that the legislation aimed to give effect to Article 39(b) of the Constitution. Aggrieved by this, the Property Owners’ Association, a body representing over 20,000 landowners in Mumbai, filed a lawsuit before the Bombay High Court, which dismissed the challenge.
The matter was appealed and initially heard by a three-judge bench of the Supreme Court. In 1996, it was referred to a five-judge bench, which then referred it to a seven-judge bench in 2001. Eventually, in 2002, the matter was put before a nine-judge bench.
What was argued?
During the proceedings, the nine-judge constitution bench underscored that an “unbridled” agenda of socialism which treats all private property of individuals as belonging to the community cannot be envisaged in today’s context of India’s economic development, as private ownership and business enjoyed protection under the Constitution. “We must have an enduring interpretation. It may well be that certain resources which are vested in private individuals may still have some general bearing of public interest or welfare of broader community which requires regulation by state,” the Chief Justice remarked. Solicitor General Tushar Mehta, appearing for the Maharashtra government, however, underscored that it should be left to the wisdom of the legislature to decide what constitutes material resources at a given point in time, given the dynamics of national and international economic constraints.
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What is at stake?
The verdict is likely to provide judicial clarity over existing conflicts between Part III of the Constitution, which delineates fundamental rights, and Part IV, which enumerates a set of DPSPs. It will also have a significant bearing on the interpretation of Article 31C, introduced through the 25th amendment, and its implications on the state seizing private property in public interest. The provision stipulates that a law giving effect to clauses (b) and (c) of Article 39 cannot be declared void on the ground that it violated the right to equality under Article 14 or Article 19, including the rights to freedom of expression, profession, business, and trade.
State’s power to regulate industrial alcohol
What is the case?
The Court will decide whether State governments can regulate and control the sale, distribution and pricing of “industrial” alcohol, which is not meant for human consumption and is used as raw material to create other products. Entry 8 in the State List under the Seventh Schedule of the Constitution empowers States to legislate on the production, manufacture, possession, transport, purchase and sale of “intoxicating liquors.” At the same time, Entry 52 of the Union List and Entry 33 of the Concurrent List mention industries, the control of which is “declared by Parliament by law to be expedient in public interest.” While subjects in the Concurrent List can be legislated upon by both States and the Centre, a State law cannot contradict a Central law that deals with the same subject matter. In this case, industrial alcohol is specifically regulated under the Industries (Development and Regulation) Act, 1951, (1951 Act), which is a central law.
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The petitions challenge a 1999 notification issued under the U.P. Licences for the Possession of Denatured Spirit and Specially Denatured Spirit Rules, 1976, which introduced a license fee of 15% ad valorem on sales made by any wholesale vendor to license holders under the U.P. Excise Act, 1910. In 2004, the Allahabad High Court declared the imposition of the license fee wholly illegal citing Section 18-G of the 1951 Act.
In 2007, a three-judge Bench of the Supreme Court referred the matter to a five-judge Bench. Subsequently, in 2010, the issue was referred to a larger Bench of nine judges after noting that the views expressed by a seven-judge Bench in the case of Synthetics and Chemicals Ltd. v. State of U.P. (1990) needed reconsideration. In Synthetics and Chemicals, the top Court affirmed that State governments do not have the authority to regulate industrial alcohol, as this power rests exclusively with the Central government.
What was argued?
The Union government claimed that the power of States extended to only “intoxicating liquors” fit for human consumption. This was covered under Entry 8 of the State List along with Entry 6 (public health). However, Chief Justice Chandrachud referred to States like Gujarat and Bihar, where intoxicating liquor was prohibited, and where there was a high possibility of industrial alcohol being abused. Recounting hooch tragedies of the past, the Chief Justice observed, “If we accept your rigid classification, it would mean however much the States have prohibited liquor, they cannot control the inflow of the clandestine trade of denatured spirit converted to intoxicating liquor.”
What is at stake?
Excise duty levied on alcohol is a key component of a State’s revenue, with States often imposing an additional excise duty on alcohol consumption to augment their income. For instance, in 2023, Karnataka hiked the Additional Excise Duty (AED) on Indian Made Liquor (IML) by 20%. The precedent set by this case will impact the ability of States to regulate and impose such excise duties on alcohol.
Is royalty paid by mine leaseholders to State governments a ‘tax’?
What is the case?
The second-longest pending nine-judge bench case revolves around the question of whether royalty prescribed by the Union on mine leaseholders under Section 9 of the Mines and Minerals (Development and Regulation) Act, 1957 (1957 Act) is a form of tax. Royalties are the fees paid to a product’s owner for usage rights to the product. The Court will also determine if States can collect taxes on mines and minerals over and above the royalty paid under the 1957 Act.
The case originated from a challenge to the Bihar Coal Mining Area Development Authority (Amendment) Act, 1992, and the rules framed under it, which imposed additional taxes on land revenue derived from mineral-bearing lands leased out to mining industries. The mining industries argued that the State legislature was not competent to impose such taxes exercising their powers under Article 246 of the Constitution. In 2011, a three-judge Bench of the Supreme Court referred the matter to a nine-judge Bench instead of a five-judge Bench after noting that there was a conflict between the decisions in State of West Bengal v. Kesoram Industries (2004) and India Cements v. State of Tamil Nadu (1990) — rulings by a five-judge and a seven-judge Bench respectively.
What was argued?
The State governments argued that royalty should not be categorised as a tax because it arises from a contractual obligation between a leaseholder and the landowner. Opposing this, mining companies argued that royalty is “akin” to a tax and hence outside the purview of State governments. Senior advocate Harish Salve, who represented the Eastern Zone Mining Association, submitted, “Leaving it to each individual State to add yet another layer of economic burden will impinge on mineral development. The Mines and Minerals (Development and Regulation) Act, 1957 contemplates conservation of minerals.” Concurring with such an assertion, the Centre argued that if States were permitted to levy tax on minerals then it would unfairly benefit mineral-rich States and potentially lead to inflation.
What is at stake?
Mineral-rich States derive a substantial portion of their income from revenue generated through mineral taxation. The outcome of this case could have a significant bearing on State finances and clarify the Union government’s authority over the taxation power of States.
Can the rules for public appointments be altered once the selection process has begun?
What is the case?
The Rajasthan High Court on September 17, 2009, issued a notification under the Rajasthan High Court Staff Service Rules, 2002, to begin the recruitment process to fill 13 vacant posts for translators. However, after the selection process had already begun, the then Chief Justice of the High Court, Jagadish Bhalla, decided that candidates must receive 75% or above in their examination to be selected for the post. The aggrieved candidates inevitably challenged what they considered a post-facto change in recruitment rules on the ground that it violated the right to equality under Article 14 of the Constitution. In light of several similar petitions being filed, the top Court on November 24 last year agreed to form a Constitution Bench to examine the larger issue of whether “the rules of the game” for appointment to various posts in the judiciary can be modified in the middle of the selection process.
What was argued?
The petitioners argued that a change in the selection criteria by the State in the middle of the recruitment process is arbitrary and discriminatory. They underscored that public recruitment must not just be carried out fairly but also must be seen to be carried out fairly. The Court was informed that any such modifications to the rules should be communicated to candidates right from the outset, when the advertisement inviting applications is published, to prevent any adverse impact.
What is at stake?
The Court’s verdict will have a significant bearing on lakhs of aspirants who appear for similar competitive exams to obtain government jobs.
Published - July 10, 2024 05:49 pm IST
