Are Constitution Bench Matters Really Out of the 'Cold Storage'?

Why only certain five-judge bench matters have been chosen and why certain others have been left out raises certain questions.

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On September 19, a constitution bench of the Supreme Court delivered its first constitution bench judgment in over a year in the case of Trimurthi Fragrances (P) Ltd v. Government of NCT of Delhi.

The last case to be decided by a Constitution Bench of the Supreme Court was the Maratha reservation case, which it decided on May 5, 2021.

This is only the beginning.

There has been a lot of buzz surrounding constitution benches since the new Chief Justice of India, U.U. Lalit, took over.

Even before Justice Lalit officially took charge as the Chief Justice of India, on August 24, the Registry of the Supreme Court issued a notice stating that certain pending five-judge bench cases will be listed before appropriate benches for directions. As of this day, three five-judge benches have been constituted to hear these matters.

This is a welcome step that can go a long way in re-establishing the role of the apex court as a constitutional court. 

Over the last few years, demands for a permanent constitution bench in the Supreme Court have emerged from different quarters. From academics and researchers to members of parliament, a concern has been raised about the fate of long-pending cases that require five or more Supreme Court judges to sit together to hear them. 

Earlier this year, the Justice, Access and Lowering Delays in India (JALDI) initiative at Vidhi Centre for Legal Policy released the Constitution Bench Pendency Project in the form of a portal containing detailed summaries of all the then pending constitution bench cases. [The author is a research fellow with the project.]

The ultimate goal of this research was to highlight the trend of the changing nature of the way the Supreme Court was prioritising its cases and shine light on the need for the Supreme Court to reclaim its main mandate – that of interpreting the constitution and upholding the rights of citizens. 

A surprising finding of this study was that there was not a single ‘active’ bench hearing these cases then. This meant that either a constitution bench had not been constituted to hear these cases or one or more judges in the bench constituted to hear a case had retired. Cases involving important constitutional questions had been lying in cold storage without hearing for years on end.

This is what makes the developments in the last few weeks significant.

Good but not good enough 

However, though this is a step forward and crucial constitutional questions might be decided in the days and months ahead, for some of the cases, this move might be a bit belated.

For instance, one of the matters that the Supreme Court will be hearing is Vivek Narayan Sharma v. Union of India. This case and its connected matters challenge the constitutionality validity of the notification which demonetised Rs 500 and Rs 1000 notes in November, 2016.

Irrespective of what the Supreme Court holds, the fact remains that demonetisation has become a fait accompli nearly six years down the line. Also, no judicial order can undo the hardship that crores of people faced during the first few months after demonetisation took place.

People gather at the entry gate of a bank to exchange and deposit their old high denomination banknotes in Jammu, November 15, 2016. Photo: Reuters/Mukesh Gupta

Why only certain five-judge bench matters have been chosen and why certain others have been left out also raises certain questions.

For instance, according to RTI data received from the Supreme Court on July 23, 2022 and data collected by Vidhi Centre for Legal Policy through publicly available sources (including the Supreme Court website), there are more than 40 main constitution bench matters pending before five-, seven- and nine-judge benches of the Supreme Court.

On what basis only these 25 cases have been prioritised remains unclear.

One of these unlisted cases is Shah Faesal v. Union of India, which questions the reading down of Article 370 in the erstwhile state of Jammu and Kashmir. None of the seven- and nine- judge bench matters have been listed. One of the nine judge bench cases is Kantaru Rajeevaru v. Indian Young Lawyers Association which deals with the entry of women into the Sabarimala temple. These cases involve important constitutional questions having a bearing on the rights of citizens. Thus, there is a need to decide and settle these significant questions swiftly.

It is interesting to note that Trimurthi Fragrances (P) Ltd was reserved for judgment less than two weeks ago. The expeditious disposal of this case shows that the Supreme Court can decide even complicated constitution bench matters in a reasonably short span of time if it has the will to do so.

Therefore, while the Supreme Court has made a gargantuan leap as far as the status of constitution bench cases is concerned, the answer to the question whether constitution bench cases are indeed out of ‘cold storage’ is not yet clear.

The Supreme Court currently has 30 sitting judges. It was possible, in the 1960s, for this court to decide over a 100 constitution bench cases in a year with half of the current strength, it has been reported. Perhaps 40 such cases can indeed be handled soon.

Apoorva is a Research Fellow with the JALDI (Justice, Access and Lowering Delays in India) Initiative at Vidhi Centre for Legal Policy. Views expressed are personal.