5 Nine-Judge Bench Matters Pending Before Supreme Court; Oldest One Pending Since 2002

This case involves interpretation of Article 39(b) of the Constitution which speaks of the distribution for the public good of the ownership and control of the material resources of the community. The reference was made in the year 2002 since the seven judges bench observed that they have 'some difficulty in sharing the broad view that material resources of the community under Article 39(b) covers what is privately owned.'

In State Of Karnataka vs Ranganatha Reddy AIR 1978 SC 215, Justice Krishna Iyer, speaking for himself and two other judges, opined that 'material resources' of the community covered all resources, natural and man-made, publicly and privately owned. The other judgment in the said case, delivered by Untwalia, J., on behalf of himself and three other Judges, did not consider it necessary to express any opinion with regard to Article 39(b), but clarified that they did not subscribe to the view taken by Krishna Iyer J. This view taken by Krishna Iyer, J. was later affirmed by a Constitution Bench in the case of Sanjeev Coke Manufacturing Company vs. Bharat Coking Coal Ltd.  AIR 1983 SC 239,. Later nine judge bench in Mafatlal Industries Ltd. vs. Union of India (1997 (5) SCC 536) observed that "the material resources of the community are not confined to public resources but include all resources, natural and man-made, public and private owned is repeatedly affirmed by this Court".

This case was last listed in chambers in May 2017 to allow an intervention application.

State Of U.P. vs M/S Lalta Prasad Vaish [(2007) 13 SCC 463]

This case is about the States' power to regulate industrial alcohol as a product of the Scheduled industry under Entry 33 of List III of Seventh Schedule of the Constitution. This reference was made in the year 2007 after the five judges Constitution bench observed that the view taken in Synthetics Chemicals Limited & Ors. vs. State of Uttar Pradesh requires reconsideration. The bench observed that if the decision in the Synthetics and Chemicals case (supra) with regard to the interpretation of Section 18-G of the 1951 Act is allowed to stand, it would render the provisions of Entry 33 of List III nugatory or otiose. The following questions were referred:

1. Does Section 2 of the Industries (Development and Regulation) Act, 1951, have any impact on the field covered by Section 18-G of the said Act or Entry 33 of List III of the Seventh Schedule of the Constitution?
2. Does Section 18G of the aforesaid Act fall under Entry 52 of List I of the Seventh Schedule of the Constitution, or is it covered by Entry 33 of List III thereof?
3. In the absence of any notified order by the Central Government under Section 18-G of the above Act, is the power of the State to legislate in respect of matters enumerated in Entry 33 of List III ousted?
4. Does the mere enactment of Section 18-G of the above Act, give rise to a presumption that it was the intention of the Central Government to cover the entire field in respect of Entry 33 of List III so as to oust the States' competence to legislate in respect of matters relating thereto?
5. Does the mere presence of Section 18-G of the above Act, oust the State's power to legislate in regard to matters falling under Entry 33(a) of List III ?;
6. Does the interpretation given in Synthetics and Chemicals Case (1990) 1 SCC P 109, in respect of Section 18-G of the Industries (Development and Regulation) Act, 1951, correctly state the law regarding the States' power to regulate industrial alcohol as a product of the Scheduled industry under Entry 33 of List III of the Seventh Schedule of the Constitution in view of clause (a) thereof ?

The seven judge bench, in the year 2010, referred the matter to a nine judge bench. Last month, while granting leave in an SLP which raised similar issues, the court tagged it with this case.

State of Uttar Pradesh v. Jai Bir Singh [(2005) 5 SCC 1]

This case involves interpretation of the definition of "industry" for the purposes of interpretation of Section 2(j) of the Industrial Disputes Act (IDA).

In 2005, a five judges constitution bench had referred the case to a seven judge bench observing that the judgment by Justice Krishna Iyer in Bangalore Water Supply and Sewerage Board v A.Rajappa case, requires reconsideration. In the said judgment, expansive meaning was given to the term 'industry' to cover most establishments that involved employer-employee relationship, irrespective of the objectives of the organisation concerned and its ownership and structure. The seven judge bench, in 2017 [2017) 3 SCC 311], referred the cases to nine judge bench observing that serious and wide ranging implications of the issue fall for determination. The nine judges bench did not sit to consider this case after this order. However, in 2019, an interlocutory application in a connected case was disposed by a two judge bench.

 Mineral Area Development Authority vs. Steel Authority of India [(2011) 4 SCC 450]

In this case, the nine judge bench will be considering the following questions referred to it in 2011:

1. Whether "royalty" determined under Sections 9/15(3) of the Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957, as amended) is in the nature of tax?
2. Can the State Legislature while levying a tax on land under List II Entry 49 of the Seventh Schedule of the Constitution adopt a measure of tax based on the value of the produce of land? If yes, then would the constitutional position be any different insofar as the tax on land is imposed on mining land on account of List II Entry 50 and its interrelation with List I Entry 54?
3. What is the meaning of the expression "Taxes on mineral rights subject to any limitations imposed by Parliament by law relating to mineral development" within the meaning of Schedule VII List II Entry 50 of the Constitution of India? Does the Mines and Minerals (Development and Regulation) Act, 1957 contain any provision which operates as a limitation on the field of legislation prescribed in List II Entry 50 of the Seventh Schedule of the Constitution of India? In particular, whether Section 9 of the aforementioned Act denudes or limits the scope of List II Entry 50?
4. What is the true nature of royalty/dead rent payable on minerals produced/mined/extracted from mines?
5. Whether the majority decision in State of W.B. v. Kesoram Industries Ltd. [(2004) 10 SCC 201] could be read as departing from the law laid down in the seven-Judge Bench decision in India Cement Ltd. v. State of T.N.[(1990) 1 SCC 12]?
6. Whether "taxes on lands and buildings" in List II Entry 49 of the Seventh Schedule to the Constitution contemplate a tax levied directly on the land as a unit having definite relationship with the land?
7. What is the scope of the expression "taxes on mineral rights" in List II Entry 50 of the Seventh Schedule to the Constitution?
8. Whether the expression "subject to any limitations imposed by Parliament by law relating to mineral development" in List II Entry 50 refers to the subject-matter in List I Entry 54 of the Seventh Schedule to the Constitution?
9. Whether List II Entry 50 read with List I Entry 54 of the Seventh Schedule to the Constitution constitute an exception to the general scheme of entries relating to taxation being distinct from other entries in all the three Lists of the Seventh Schedule to the Constitution as enunciated in M.P.V. Sundararamier & Co. v. State of A.P. [AIR 1958 SC 468 : 1958 SCR 1422] [AIR p. 494 : SCR at p. 1481 (bottom)]?
10. Whether in view of the declaration under Section 2 of the Mines and Minerals (Development and Regulation) Act, 1957 made in terms of List I Entry 54 of the Seventh Schedule to the Constitution and the provisions of the said Act, the State Legislature is denuded of its power under List II Entry 23 and/or List II Entry 50?
11. What is the effect of the expression "… subject to any limitations imposed by Parliament by law relating to mineral development" on the taxing power of the State Legislature in List II Entry 50, particularly in view of its uniqueness in the sense that it is the only entry in all the entries in the three Lists (Lists I, II and III) where the taxing power of the State Legislature has been subjected to "any limitations imposed by Parliament by law relating to mineral development"?.

A connected matter had come up before a three judge bench in April, this year.

Kantaru Rajeevaru vs Indian Young Lawyers Association [(2020) 2 SCC 1]

The 9-judge bench was constituted by the Supreme Court to consider the issues mentioned in the Sabarimala review order. On November 14,2019, a 5-judge bench headed by the then CJI Ranjan Gogoi observed by 3:2 majority that certain issues in the Sabarimala review were common to the pending cases concerning women entry in Mosques, validity of the practice of Female Genital Mutilation among Dawoodi Bohra community and the right of Parsi women who had married outside community to enter Fire Temples. This order also listed some issues which, according to the majority, "could" arise for consideration by a larger bench. Later the nine judge bench, which heard the case on preliminary issues, re-framed these issues. They are:

1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
   
2. 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?
3. 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?
4. 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?
5. 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?
6. What is the meaning of expression "Sections of Hindus" occurring in Article 25 (2) (b) of the Constitution of India?
7. 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?

The nine judge bench also dismissed the objections regarding the maintainability of reference. Recently, the court issued notice in a plea filed for protection of rights of Parsi women, challenging ostracisation of a Parsi Zoroastrian and her offspring on the grounds of her marriage to an individual of a different lineage, race or religion. The bench observed that the question involved in the said matter is one of the points which is covered in the Sabarimala Reference.

15 Nine-Judge Bench Decisions In Supreme Court's History

15 Judgments Of Nine Judges Bench

There have been 15 nine-judge bench decisions in the history of Supreme Court. The judgment in Justice K.S. Puttuswamy (retd) v. Union of India is the latest decision (2017) by a nine judges bench in which it was unanimously held that the right to privacy is a fundamental right protected under the Constitution of India. In 2016, in Jindal Stainless Ltd. & Anr. v. State of Haryana, the court, by a majority of 7:2 majority upheld the validity of the entry tax imposed by States on goods imported from other States. It was held that the word 'Free' used in Article 301 does not mean "free from taxation". 

Here is a list of 13 other landmark decisions by nine-judge benches in the history of the Supreme Court (in chronological order). 

1. 1. 1. In Re: the bill to amend section 20 of the sea customs act, 1878 and section 3 of the central excises and salt act, 1944 ( "The Sea Customs Case" 1963)- " Taxable event in the case of duties of excise is the manufacture of goods and the duty is not directly on the goods but on the manufacture thereof.
      2. The State Trading Corporation of India Ltd v. CTO AIR (1963)- interpreted the word 'citizen' in a broader perspective and held that the State Trading Corporation although a legal person was not a citizen and can act only through natural persons. It was also observed that certain fundamental rights enshrined in the Constitution for protection of "person" (such as the right to equality under Article 14) are also available to a company. Section 2(f) of Citizenship Act, 1995 expressly excludes a company or association or body of individuals from citizenship. " Even if the State Trading Corporation be regarded as a department or organ of the Government of India, it will, if it be a citizen competent to enforce fundamental rights under Part III of the Constitution against the State as defined in Art. 12 of the Constitution."
      3. Superintendent And Remembrancer Of Legal Affairs West Bengal Vs. Corporation Of Calcutta (1966)- The court held that an enactment applies to citizens as well as to the State unless it expressly or by necessary implication exempts the State from its operation, steers clear of all the anomalies and is consistent with the philosophy of equality enshrined in the Constitution. " The State cannot claim the exemption to obtain a license on the ground that the Calcutta Municipal Act does not expressly or by necessary implication to make it binding on the State."
      4. Naresh Shridhar Mirajkar & Ors. v. State of Maharastra (1966)- The majority held that a judicial order passed by a court cannot be challenged as infringing fundamental rights.
      5. The Ahmedabad St. Xaviers College v. State of Gujarat (1974)- The court interpreted the contours of rights of minority educational institutions under Article 30. "The rights conferred on the religious and linguistic minorities to administer educational institutions of their choice is an absolute right."
      6. Indira Sawhney Etc. Etc v. Union of India & Ors. ( "Mandal Commission Case" 1992)- The bench by 6:3 majority upheld 27% SEBC reservation in government jobs, with the exclusion of 'creamy layer'. " While reserving posts for backward classes, the departments should make a condition precedent that every candidate must disclose the annual income of the parents beyond which one could not be considered to be backward. What should be that limit can be determined by the appropriate State. Income apart provision should be made that wards of those backward classes of persons who have achieved a particular status in society either political or social or economic or if their parents are in higher services then such individuals should be precluded to avoid monopolization of the services reserved for backward classes by a few. Creamy layer, thus, shall stand eliminated. And once a group or collectivity itself is found to have achieved the constitutional objective then it should be excluded from the list of backward classes.
      7. Supreme Court Advocates-on-Record Association & Anr. v. Union of India (1993)- "Collegium System" for judicial appointments, by interpreting "consultation " in Articles 124 and 217 as "concurrence"- The role of Chief Justice of India in the matter of appointment of the Judges of the Supreme Court is unique, singular and primal. Neither the CJI not the executive can push through an appointment of the judges in the Supreme Court in derogation of the wishes of the other. " The roles of the Chief Justice of India and Chief Justice of the High Court in the matter of appointments of Judges of the High Court is relative to this extent that should the Chief Justice of India be in disagreement with the proposal, the Executive cannot prefer the views of the Chief Justice of the High Court in making the appointment over and above those of the Chief Justice of India. In the matters of transfers of Judges from one High Court to another, the role of the Chief Justice of India is primal in nature and the Executive has a minimal, if not, no say in the matter, for consultation envisaged under Article 222 of the Constitution is used in a shrunk from and more as a courtesy, the subject being one relating to the in- working of the judiciary."
      8. S.R. Bommai v. Union of India (1994)- " Article 356 of the Constitution confers a power upon the President to be exercised only where he is satisfied that a situation has arisen where the Government of a State cannot be carried on in accordance with the provisions of the Constitution. Under our Constitution, the power is really that of the Union Council of Ministers with the Prime Minister at its head. The satisfaction contemplated by the article is subjective in nature." The apex court decided that the power of the President to dismiss a State Government is not absolute. The decision said that the President should exercise the power only after his proclamation is approved by both the Houses of the Parliament. Till then, the President can only suspend the Legislative Assembly by suspending the provisions of the Constitution relating to the Legislative Assembly. Notably, the Court also held in this case that "secularism" was a basic structure of the Constitution.
      9. Attorney General For India v. Amartlal Prajivandas (1994) -Parliament competent to enact COFEPOSA. The court held that the enactment was relatable to Schedule VII, Entry 3 of List III inasmuch as it provides for preventive detention for reasons connected with the security of State as well as the maintenance of supplies and services essential to the community besides Schedule VII Entry 9 of List I of the Constitution of India.
      10. Mafatlal Industries Ltd. v. Union of India (1996)- Majority of 8:1 as to what rights and remedies are available to a citizen against the State in the matter of refund of unlawfully recovered taxes and imposts. " Excise duty is an indirect levy. It is intended or presumed to be passed on. This is so under ordinary law. Section 12B of the Act only provides a statutory rebuttable presumption in that regard. If it turns out that the levy is not exigible, it is refundable to the person who had borne the liability."
      11. New Delhi Municipal Corporation v. State of Punjab Etc. (1996)- Municipal Laws are inapplicable to the properties of State Governments to the extent such properties are governed and saved by clause (1) of Article 289. If such properties are used or occupied for the purpose of trade or business carried on by the State Government, the ban in clause(1) does not avail them and the taxes thereon to be held valid and effective. "The property taxes levied by and under the Punjab Municipal Act, 1911, the New Delhi Municipal Corporation Act, 1994 and the Delhi Municipal Corporation Act, 1957 constitute "Union taxation" within the meaning of clause (1) of Article 289 of the Constitution of India. The levy of property taxes under the aforesaid enactments on lands and/or buildings belonging to the State governments is invalid and incompetent by virtue of the mandate contained in clause (1) of Article 289. However, if any land or building is used or occupied for the purposes of any trade or business - trade or business as explained in the body of this judgment - carried on by or on behalf of the State government, such land or building shall be subject to levy of property taxes levied by the said enactments.
      12. In re Special Reference under Article 143(1) of (1998)- This case discussed fine-tuned the "Collegium system" conceived in the 1993 decision with further parameters. This was by answering a Presidential Reference seeking advisory opinion on the Collegium System. "The expression "consultation with the Chief justice of India" in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does not constitute "consultation" within the meaning of the said Articles." The bench laid down the procedural norms for the appointment of judges of the Supreme Court and High Court. The court said that the Chief Justice is obliged to comply with the norms and the requirement of the consultation process in making his recommendations to the Government of India.
      13. I.R.Coelho (Dead) by Lrs v. State of Tamil Nadu (2007)- The 9-judge bench of the then CJI Y.K. Sabharwal, and Justices Ashok Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan, Altamas Kabir, D.K. Jain considered the immunity of laws included in the ninth schedule, when they infringe fundamental rights. "A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of the law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in the exercise of judicial review power of the Court."

Delay In Disposing Nine Judges Bench Matters

It can be noticed that in some cases, nine judge benches delivered judgment within a few years of reference. For instance, the reference to nine judge bench in privacy case was made in 2015 and the judgment was delivered in 2017. I.R.Coelho judgment was delivered seven years after it was referred to nine judge bench. In these pending matters, there is a case referred to nine judge bench in the year 2002. The references were made because the referring bench thought the determination of the issues involved in those cases were important and required to be finally decided. 

In 2019, it was reported that the Court might be setting up a permanent five-judge Constitution bench, to be available round the year to adjudicate complex constitutional questions and interpret laws. But there has been no development thereafter, perhaps due to the advent of Covid-19 pandemic in March 2020. Now since the supreme court is working with 33 judges and started physical hearings, time has come to soon dispose of the larger bench matters (nine and seven judges bench matters) and to constitute a permanent five judge 'Constitution Bench'.