Constitution Bench

Constitution Bench

1. Recently, the Central Government scrapped Article 370 and Article 35A providing special status to the Jammu and Kashmir by Presidential Order.

2. It was passed by both the houses of the Parliament.

What is the issue?

1. The Chief Justice of India (CJI) constituted a Constitutional bench to deal with the abrogation of Article 370.

2. It was set up to look into constitutional validity

a. Presidential Order scrapping the special status of Jammu and Kashmir.

b. Law splitting the state into two Union Territories.

c. Restrictions imposed on movements and communication in the Kashmir valley.

When can a constitution bench be constituted?

Interpretation of the Constitution

1. A constitution bench of the Supreme court is set up to decide any case which requires substantial interpretation of the constitution.

2. The Supreme Court is mandated by Article 145(3) of the Constitution of India.

3. The bench must be comprised of at least five Supreme Court judges.

Advisory Judications of the Supreme Court

1. The constitutional bench is also constituted for any reference made by the President of India under Article 143(1).

2. Article 143(1) gives the President the power to consult the Supreme Court if a question of law or fact arises or is likely to arise.

3. The President can also refer a dispute to the Supreme Court for opinion.

Other Issues

1. According to Article 145, every petition questioning the election of President and Vice President under Article 71 of the Constitution shall be posted before a bench of 5 judges.

2. The CJI has the special power to direct any case to the Constitutional bench such as the Ayodhya dispute.

3. A civil cases that are politically sensitive have also been directed to the constitutional bench.

Who constitutes the Constitution bench?

1. It shall be constituted by the Chief Justice of India (CJI). But it is not mandatory for CJI also to be a member of the constitution bench.

2. Sometimes multiple constitution benches are constituted simultaneously, in such cases CJI probably cannot be part of all the constitution benches.

Which are the landmark cases decided by the Constitutional Bench?

1. Kesavananda Bharathi Case

a. It was decided by the largest constitution bench so far of 13 members.

b. It dealt with the constitutional amending powers of Parliament.

c.  In this case, the Doctrine of Basic Structure was laid down by the Supreme Court.

The Kesavananda case has its roots in Golaknath vs State of Punjab case.

a. In Golaknath case, an 11 member bench ruled the parliament could not curtail any fundamental right that was guaranteed by the constitution.

b. To nullify this verdict, the 24th constitutional amendment was enacted, making parliament’s power to amend the constitution unrestricted and unlimited.

c. But in the Kesavananda Bharati case, the Supreme Court held that the power to amend for Parliament does not include the power to alter the basic structure of the Constitution.

2. Aadhaar Verdict in 2018

The judgement laid down that

a. Aadhaar is constitutionally valid but not necessary to avail of Government services.

b. Aadhaar – PAN linking mandatory but not mandatory to link Bank A/C and mobile numbers.

3. Decriminalized Gay Sex

a. In 2018 the Supreme Court judgement laid down that consensual sex between two adults is covered under the Right to Privacy.

b. It partly struck down the Sec 377 of Indian Penal Court, holding it violative of the fundamental right to privacy.

c. Sec 377 would continue to be in force in case of unnatural sex with animals and children.

d. Sec 377 of IPC is also regarded as discrimination against the LGBTQ community.

4. Sabarimala Case 2018

a. The Supreme Court allowed entry of women of all age groups into Sabarimala Temple, holding that devotion cannot be subjected to gender discrimination.

5. Execution of Living Will and Right to Die with Dignity

a. Passive euthanasia was legalized. It was made applicable only to those who suffer from a terminal illness and have no hope of recovery.

b. The court will constitute a medical board to consider the cases of passive euthanasia.

c. It also allowed for the drafting of the living will, specifying the signatory not be put on life support, if they slip into an incurable coma.

d. Will must be made when a person is a sound mind.

6. Triple Talaq Judgement in 2017

a. The Supreme Court struck down the instant triple talaq terming it as unconstitutional.

b. It invalidated the age-old practice of Muslim Personal law in which a Muslim man can divorce his wife uttering the word ‘talaq’ thrice.