Breaking: CJI Dipak Misra, Justices Nariman, Chandachud, Khanwilkar And Indu Malhotra To Hear S.377 Case

The Supreme Court has announced the constitution of new Constitution Bench consisting of Chief Justice Dipak Misra, Justice A.M Khanwilkar, Justice D Y Chandrachud, Justice R F Nariman and Justice Indu Malhotra. The composition of the earlier Constitution Bench was Chief Justice Dipak Misra, Justice A. K Sikri, Justice A.M Khanwilkar, Justice D Y Chandrachud and Justice Ashok Bhushan.

From July 10 onwards, the new Constitution Bench will commence hearing on several significant matters referred to it. The matters include petitions seeking de-decriminalization of homosexuality, striking down of penal provisions against adultery, entry of women in Sabarimala, and disqualification of legislators on filing of charge-sheet in criminal offences.

The new composition is notable due to the inclusion of recently appointed Justice Indu Malhotra, whose presence could bring in a material perspective while the bench considers issues relating to gender equality.

Navtej Singh Johar v Union Of India [Revisiting Criminalisation Of Homosexuality]

The constitution bench will re-consider the two-judge bench judgment in Suresh Kumar Kaushal v Naz Foundation which upheld the constitutional validity of S.377 of the Indian Penal Code.

A three-judge bench headed by the Chief Justice of India had referred the petition filed by five LGBT citizens for the consideration of the constitution bench, observing that the matter involves substantial constitutional issues.

The bench headed by the Chief Justice, while referring the matter to the constitution bench, noted that Section 377 IPC, in so far as it destroys individual choice and sexual orientation, cannot be regarded as a reasonable restriction on the exercise of one’s fundamental rights. It had also observed that 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.

Indian Young Lawyers’ Association v State Of Kerala  [Sabarimala Women Entry]

A sensitive issue relating to the entry of women to Sabarimala Temple is also before the Constitution bench. The following questions are referred to the Constitution Bench by a three-judge bench headed by Chief Justice Dipak Misra:

• 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?

Joseph Shine vs Union Of India [Adultery Law Outdated?]

The Constitution bench will look into whether the earlier judgments, which had upheld the IPC provisions penalising adultery, are to be reconsidered, regard being had to the social progression, perceptual shift, gender equality and gender sensitivity.

In Sowmithri Vishnu case, a three-judge bench headed by then Chief Justice YV Chandrachud had held that no constitutional provision is infringed, in defining the offence of adultery so as to restrict the class of offenders to men.

Three decades later, his son, who is now a Supreme Court judge, Justice DY Chandrachud opined during the admission of the case that the wife cannot be treated as a commodity by leaving her at the discretion of her husband to give consent to the act.

Observing that these judgments require reconsideration, the bench headed by CJI observed that the provision seems quite archaic and especially, when there is a societal progress.

The question ‘whether a legislator facing criminal trial should be disqualified at the very stage of framing of charges against him by the trial court’ will be answered by the constitution bench.

Earlier, the following question was referred to a three-judge bench: “Whether disqualification for membership can be laid down by the Court beyond Article 102(a) to (d) and the law made by Parliament under Article 120(e)?”

The Centre placed reliance on a constitutional bench judgment and submitted before the court that it conclusively answers the question referred to three-judge bench.

Justice Madan B Lokur, in a separate judgment delivered in Manoj Narula v Union of India, had observed: “Despite the fact that certain limitations can be read into the Constitution and have been read in the past, the issue of the appointment of a suitable person as a Minister is not one which enables this Court to read implied limitations in the Constitution.”

The bench rejected the contention that this answers the reference, and later it was referred to the constitution bench.