Same-sex marriage bench notified, but several key matters await adjudication
NEW DELHI: The Supreme Court is set to commence its hearing from April 18 on a batch of petitions demanding legal validation for same-sex marriages in India even as some key constitution bench matters, including those related to the abrogation of Article 370, entry of women into Sabrimala temple, scope of judicial review in matters of faith and the challenge to the Citizenship Act, await adjudication by appropriate benches.
The same-sex marriage case was referred to a constitution bench on March 13 and a fivejudge bench to be headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud was notified on April 16. However, each of the other matters mentioned above has been pending for at least three years now.
The bunch of petitions challenging the abrogation of Article 370 was last listed in March 2020 when a five-judge bench had declined to refer the matter to a larger bench. The reference was sought on the grounds that two previous judgments of the apex court were conflicting with each other, but the bench did not agree with this contention.
The top court had admitted the challenge to the withdrawal of the special status of Jammu and Kashmir and its splitting into two Union territories on August 28, 2019 – merely a few days after the presidential order on the abrogation was issued.
At that time, it was noticed by the bench that there was also an older batch of petitions pending in the Supreme Court that challenged the validity of Articles 370 and 35A which accorded special status to J&K. It pointed out that all the matters related to Article 370 should be preferably heard together.
On December 14, CJI Chandrachud had said he would examine the matter and give a date, but the matter is yet to be listed. The composition of the bench that may hear the case is also not notified till date.
Similarly, a reference order of 2019 to a nine-judge bench on the issue of entry of women of all ages to Kerala’s Sabrimala temple and a raft of issue related to the scope of judicial review of religious practices is still waiting for the constitution of a suitable bench.
In February 2020, a nine-judge affirmed the decision of the Sabarimala review bench of five judges to refer to a larger bench a bundle of legal issues on the ambit and scope of religious freedom practised by multiple faiths across the country. The nine-judge Bench, led by hen CJI SA Bobde, noted that the reference was required to “do complete justice” in a pending matter, namely Sabarimala, adding a bench engaged in the review of a particular judgment could indeed refer other questions of law to a larger bench.
The November 2019 order by a five-judge bench had set out seven questions of law to be examined by the larger bench. They included -- the interplay between freedom of religion under Articles 25 and 26 of the Constitution; need to delineate the expression ‘constitutional morality’; the extent to which courts can enquire into particular religious practices; the meaning of sections of Hindus under Article 25 and whether ‘essential religious practices’ of denomination or a section thereof are protected under Article 26.
Another question was the “permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination”.
A 2014 reference by the Supreme Court to determine the validity of Section 6A in the Citizenship Act also awaits adjudication by the top court. A bundle of petitions, led by Assam Sanmilita Mahasangha, challenged the validity of Section 6A, alleging it violates fundamental rights in that no mechanism is provided to determine which persons are ordinarily resident in Assam based on the dates of their entry into Assam. The array of issues arising out of 1985 Assam Accord and validity of cut off dates for ‘illegal’ immigrants of Indian origin who came into Assam from Bangladesh is currently pending before a bench led by CJI Chandrachud.
A reference in 2017 to a ninejudge bench for reconsidering the definition of “industry”, as interpreted by a seven-judge bench in 1978 in the Bangalore Water Supply case, is also awaiting adjudication.
Apart from these larger bench cases, some other sensitive matters, such as hijab row and the challenge to the Citizenship (Amendment) Act (CAA), are also pending before the top court much before the same-sex marriage cases were filed last year.
In October 2022, the top court had delivered a split verdict on the ban of wearing of the hijab in educational institutions in Karnataka – with one judge affirming that the state government is authorised to enforce a uniform in schools and the other calling the hijab a matter of choice that cannot be stifled by the state. The matter was thus referred to a three-judge bench.
The matter has been mentioned at least three times since the order of reference, but the three-judge bench is yet to be notified. The batch of petitions challenging the validity of the CAA has also not been heard effectively since October 2012. The three-judge bench had at that time observed that the case may be referred to a constitution bench after hearing preliminary submissions.
Senior advocate and former additional solicitor general (ASG) Bishwajit Bhattacharyya said: “Now that the Supreme Court is working with full strength of 34 judges, it would be opportune to have a permanent constitution bench so that old matters may also get due priority and hearing.” The senior counsel added that the procedure before the constitution bench should limit the duration of arguments by lawyers followed by written submissions that would address the scope of the issues involved. “Such a procedure would help a time-bound wrap of arguments in constitution bench cases,” added Bhattacharyya.