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All You Want To Know About 8 Cases Listed For Hearing By Constitution Bench From Wednesday (Jan 17) [Read Notice]

The Constitution bench of Supreme Court will commence hearing from January 17, 2018, on eight important cases referred to it. Petitions relating to the constitutionality of Aadhaar, entry of women in Sabarimala and change of religious identity of Parsi woman after marriage are in the list put up by the Supreme Court registry, on Friday. The list also contains the cases in which the constitution bench will reconsider earlier judgments which had upheld IPC sections penalising adultery and homosexuality.

Justice KS Puttaswamy (Retd) v Union Of India  [Aadhaar Or No Aadhaar]

Whether Aadhaar violates an individual’s right to privacy is the most-awaited question which will be answered by the Constitution bench hopefully soon.

The five-judge bench specially constituted for hearing of petitions challenging the constitutional validity of Aadhaar, in the meanwhile, had referred the limited question ‘whether right to privacy is a fundamental right or not’ for the consideration of a nine-judge bench, which recently held that it indeed is a fundamental right.

Recently, the bench had extended the deadline for mandatory linkage of Aadhaar number with all services and schemes, including bank accounts and mobile numbers, to March 31, 2018.

Former Karnataka High Court judge Justice Anand Byrareddy had filed an impleadment application before the Supreme Court challenging the provisions of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016. The original Aadhaar case was initiated by another former Karnataka High Court judge, Justice K Puttaswamy.

Joseph Shine vs Union Of India [Adultery Law Outdated?]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

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?

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.

Goolrokh M Gupta v Sam Rusi Chothia & Ors [Religious Identity Changes With Marriage?]

The constitution bench of the Supreme Court will decide the religious identity of a Parsi woman after her marriage under the Special Marriage Act.

The bench headed by Chief Justice of India Dipak Misra had referred a special leave petition against Gujarat High Court judgment which had held that a Parsi woman’s religion is automatically converted to Hinduism after marrying a Hindu man under the Special Marriage Act.

The constitution bench, had in an interim order, permitted Parsi woman Goolrokh Gupta, married outside her community, to attend and participate in the funerary rites of her parents at the Fire Temple devoted to Zoroastrianism, having received the nod in that behalf from the Parsi Valsad Anjuman Trust.

Public Interest Foundation v Union Of India [Whether A Legislator Is To Be Disqualified At The Stage Of Framing Of Charge Against Him]

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.

M/s Shanti Fragrances v Union Of India [Tax Issue And Revisit Of Prevailing Rule Of Precedence]

In this case, the Constitution bench will decide whether the dictum in Kothari Products Ltd v Government of AP, or the contradictory dictum laid down in Commissioner, Sales Tax UP v M/s Agra Belting Works, Agra, is correct.

In Kothari Products case, a three-judge bench had held that an entry under a sales tax statute which only specifies rate cannot be used to eat into an exemption entry.

Whereas in the Agra Belting Works, it has been held that the charging section, the rate of tax section, and the exemption section all form part of one scheme and when a notification is issued under a rate of tax section, which is subsequent to a notification exempting certain goods, the intention of the legislature is that such exemption then gets withdrawn and makes the sale of such goods liable to tax.

Another important question posed by the bench is this: “Under the present practice, it is clear that the view of four learned Judges speaking for the majority in a 7-judge bench will prevail over a unanimous 5-judge bench decision, because they happen to speak for a 7-judge bench. Has the time come to tear the judicial veil and hold that in reality a view of five learned Judges cannot be overruled by a view of four learned Judges speaking for a Bench of 7 learned Judges?

New India Assurance Co Ltd v Hillli Multipurpose Cold Storage (P) Ltd [Commencing Point Of Limitation For Filing Opposite Party Version In Consumer Case]

The question before the constitution bench in this case is about the commencing point of the limitation of 30 days stipulated in Section 13 of the Consumer Protection Act.

A three-judge bench had held that District Consumer Forum can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that. The bench had also held that law laid down by a three-judge bench of this court in the case of JJ Merchant should prevail.

However, the bench headed by Justice Chelameswar observed that the declaration made in JJ Merchant’s case that the said period is to be reckoned from the date of the receipt of the notice by the opposite party or a complaint under the Act requires a more critical analysis.

Read the Notice Here

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