Money Bill, Speaker's Powers, Minority Status Of AMU : Issues In 7-Judge Bench Matters Which Supreme Court Will Hear Soon

The Supreme Court will be finishing pre-hearing steps in six 7-judge bench matters on October 12. These matters include exploration of the state's authority to levy additional taxes on dealers, the boundaries of parliamentary and legislative powers, examination of whether religious minorities can administer educational institutions not established by them, legality of 'primary preference' within the Scheduled Castes category and so on. 

1. Arjun Flour Mills v. State of Orissa (CA 8763/1994)

This matter, dating back to 1998, revolves around a challenge to the validity of Section 5A of the Orissa Sales Tax Act, 1947. Section 5A imposes a surcharge on the total amount of sales tax payable by a dealer. While a similar provision was upheld by a bench of three judges of the Supreme Court, it was argued by the appellants in the matter that the provision thus upheld was related to Entry 54 of List II in the Constitution's VIIth Schedule. As per the judgement, the surcharge was of the nature of sales tax and, therefore, was within the competence of the State Legislature. Contrary to this a seven judge bench in India Cement Ltd. v. State of T.N. opined that a cess on the royalty payable for excavation of land was held to be, not a tax on land, but on the royalty, which was land revenue. In light of the same, the matter was referred to a seven-judge bench to determine if an additional surcharge can be imposed on the total amount of sales tax payable.

2. N. Ravi & Ors v. Speaker, Legislative Assembly, Chennai & Ors (WP(crl) 206-210/2003)

This 2005 case revolves around the scope of parliamentary and legislative powers. It originated in 2003 when journalist N. Ravi, along with some others journalists approached the Supreme Court after the Tamil Nadu assembly ordered the arrest of journalists for alleged breach of privilege and gross contempt. The order was issued by K Kalimuthu, the then speaker of the Tamil Nadu assembly, in response to an editorial in The Hindu mentioning the then chief minister J. Jayalalithaa, which was later republished in the DMK party's daily, Murasoli, edited by S. Selvam, who was also among the journalists targeted for arrest.

In 2003, the Supreme Court temporarily halted the arrests of these six journalists and issued notices to several officials, including the assembly speaker, assembly secretary, Tamil Nadu director general of police, and Chennai police commissioner. However, the case remained unresolved regarding the definition of the breach or limit of legislative privileges.

In 2004, due to conflicting judgments in older cases (the 1958 Pandit MSM Sharma v Shri Sri Krishna Sinha And Ors. and the 1965 Keshav Singh v. Speaker, Legislative Assembly case) concerning the balance between fundamental rights and parliamentary privileges, this case was referred to a seven-judge bench for clarification. The Sharma judgment prioritised fundamental rights, while the Keshav Singh verdict asserted that parliamentary privileges should not be overridden by fundamental rights.

3. Aligarh Muslim University Through its Registrar Faizan Mustafa v. Naresh Agarwal & Ors. (CA No.2286/2006)

This matter pertains to whether a religious minority can only administer an educational institution when it establishes the said educational institution. The issue arose with the case of S. Azeez Basha and Anr. v. Union of India. In this case, the court stated that Article 30(1) of the Constitution provided the right to religious communities to manage educational institutions of their choice only when they have established the same. The Court rejected the argument that a religious minority could administer an institution not established by them, even if they had been administering it before the Constitution came into force. The Court emphasized that the words "establish and administer" in Article 30(1) must be interpreted together. This observation of the court was relied upon by Allahabad High Court in its judgement which was challenged under the present batch of appeals. 

However, S. Azeez Basha was referred to a seven judges Bench in 1981. The question of whether a religious community could only administer a minority institution if it established the said institution was formulated for an answer in T.M.A. Pai Foundation & Ors v. State of Karnataka & Ors. However, the Bench did not answer the question stating that it will be dealt with by the Regular Bench. The order of the Regular Bench also did not answer the question. Thus, the correctness of the question arising from the decision of in S. Azeez Basha remained undetermined.

Accordingly, it was referred to a seven judge bench. The court held–

"Ordinarily and in the normal course the judicial discipline would require the Bench to seek a reference of this matter by a Five Judges Bench. However, having regard to the background, as stated above, when the precise question was already referred to a Seven Judges Bench and was, however, not answered, we are of the view that the present question, set out above, should be referred to a Bench of Hon’ble Seven Judges."

4. The State Of Punjab v. Davinder Singh (CA No. 2317/2011)

In 2010, the Punjab & Haryana High Court declared Section 4(5) of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006, as unconstitutional. Section 4(5) of the Act grants 'primary preference' to the Balmikis and Mazbhi Sikhs castes for reservations in public services under the Scheduled Caste category. The present case stems from the State of Punjab's challenge to this ruling. The High Court based its decision on the belief that Section 4(5) created an unconstitutional division within the Scheduled Castes, drawing upon the precedent established in the E.V. Chinnaiah v State of Andhra Pradesh case. In the E.V. Chinnaiah case, the Supreme Court had ruled that any form of 'sub-classification' within the Scheduled Castes would violate Article 14 of the Constitution. It emphasized that only Parliament, and not State Legislatures, had the authority to exclude specific castes from the Presidential List under Article 341 of the Constitution.

The State of Punjab, however, appealed the High Court's verdict, contending that E.V. Chinnaiah does not directly apply to the current case. The State also argued that a seven-judge Bench should reconsider the judgment in E.V. Chinnaiah. On August 27th, 2020, the judgment in E.V. Chinnaiah was referred to a larger bench of seven judges.

5. Rojer Mathew v. South Indian Bank Ltd And Ors. (CA No. 8588/2019)

This matter relates to the money bill issue.

Money Bill, as defined under Article 110 of the Indian Constitution, concerns financial matters like taxation, public expenditure, etc. The Rajya Sabha cannot amend or reject this bill. The money bill provision had courted controversy after the Government sought to introduce certain bills, such as the Aadhaar Bill, as money bill, seemingly to circumvent the Rajya Sabha, where the government was lacking majority.

In this matter, which was concerning the rift between the Shiv Sena party, the judgement in Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly was referred to a seven-judge bench. In Nabam Rebia, a five judge Constitution Bench of the Apex Court had held that it is impermissible for a Speaker to adjudicate upon disqualification petitioners under the Tenth Schedule after a notice of intention to move a resolution for the removal from office is issued. 

The petitioners in the case had argued that the decision in Kihoto Hollohan v. Zachillhu and that in Nabam Rebia were in conflict. In Kihoto Hollohan, another Constitution Bench had held that the Court cannot generally interfere in disqualification proceedings at an interlocutory stage. However, as per Nabam Rebia, the disqualification proceedings would be prohibited about the issuance of notice of intention to move a resolution for the removal of the Speaker, amounting to interference with disqualification proceedings at interlocutory stage. 

Since Nabam Rebia was also delivered by a bench having equal strength of 5-judges, it was referred to larger bench of seven judges. Earlier, a 3-judge bench, while referring the case to 5-judge bench, had prima facie observed that the reasoning in Nabam Rebia appeared to be contradictory.

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