New Delhi: From the sub-classification of Scheduled Castes (SCs) and Scheduled Tribes (STs) to the regulation of industrial alcohol, six key matters are pending before Constitution benches led by Chief Justice of India D.Y. Chandrachud, who is set to demit office later this year.
A Constitution bench has a strength of five or more Supreme Court judges, and hears matters involving substantial questions of law under the Constitution or when a reference is made by the President of India to the court for adjudication on a legal issue.
Justice Chandrachud will in November this year turn 65, which is the maximum permissible age after which a judge must retire from office. Before he demits office, the benches led by him must pronounce decisions in these cases, which include the long-pending question of whether royalty for extracted minerals is a “tax”.
It is likely that the pronouncements will commence soon after the court resumes in July, after a 75-day summer break.
Here’s a breakdown of the six pending cases:
Sub-classification of SCs/STs
A seven-judge Constitution bench of the Supreme Court comprising the CJI reserved its judgment this February on the question of whether sub-classification within the SC/ST categories is possible under Article 16 of the Constitution, which allows reservations for the said two categories. The court has to also consider whether state governments can make such sub-classifications.
The legal question stems from an appeal filed in 2010 by the Punjab government in connection with a notification it had issued in 1975. This accorded half of the 25 per cent reservation given to SCs in the state to Balmikis and Mazhabi Sikhs, two castes that fall within the SC list in the state.
This sub-classification and subsequent reservation to the two castes was valid until a 2004 SC decision on the status of similar reservations in Andhra Pradesh (Chinnaiah vs State of Andhra Pradesh). The SC then held that such sub-classification was invalid, which led to the Punjab notification being set aside.
In the legal battle that followed before the seven-judge Constitution bench, the Punjab government has argued that the 2004 decision of the SC was not in accordance with the law laid down in the landmark Indira Sawhney case of 1992, which identified the 50 percent limit on total reservation and allowed the subclassification of “backward classes”.
Punjab has asserted that preferential treatment is a “facet of equality”, and therefore, such sub-classification should be permissible.
However, in the case of Chinnaiah, the court had said that ‘Scheduled Castes’ was a “homogeneous” category and sub-classification would lead to its distortion.
Earlier this year, the SC in the present appeal brought by Punjab framed two questions of law: whether sub-classification is permissible at all, and whether states can carry it out.
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Is Aligarh Muslim University a minority institution?
The SC this February also reserved its verdict on the six-decade old question of whether the Aligarh Muslim University (AMU) is a minority institution under the Constitution’s Article 30, which provides special rights to minorities to administer institutions.
Hearing AMU’s challenge to a 2006 Allahabad High Court ruling that denies it minority status, the Constitution bench is reconsidering the SC’s own 1967 ruling in S. Azeez Basha and Another vs Union Of India — known simply as the Basha case — which said that AMU was not a minority institution as it was neither established nor administered by the Muslim minority.
The crux of the legal battle centres around the origin of the university as Muhammadan Anglo-Oriental (MAO) College in 1875, which was founded with the aim of popularising modern British education among Muslims.
With MAO College as the nucleus, AMU was established by the Aligarh Muslim University Act, 1920. Between 1951 and 1965, a series of amendments were made to the act in a bid not only to align the university with constitutional provisions, but also to change its governance structure.
These amendments were challenged in the SC, with the petitioners contending that the changes violated their right to administer and establish educational institutions under Article 30.
The apex court rejected these arguments in the Basha case, saying that AMU wasn’t an institution that was either established or managed by the Muslim minority.
That ruling led to protests, prompting the Indira Gandhi government to redefine the word “university” under the AMU Act — through an amendment in 1981, the term was retrospectively redefined to mean “the educational institution of their choice established by the Muslims of India, which originated as the Muhammadan Anglo-Oriental College, Aligarh, and which was subsequently incorporated as the Aligarh Muslim University”.
In 2005, AMU implemented a reservation policy of 50 percent of seats for Muslims in its postgraduate courses. This was challenged in the Allahabad High Court, with non-Muslim petitioners arguing that AMU was not a minority institution according to the Basha decision and that it could not reserve seats.
On the other hand, the Centre and AMU defended the reservation policy by arguing that the Basha decision was overridden by the 1981 amendment, which had declared AMU a minority institution.
In January 2006, the high court rejected these arguments and overturned the reservation policy, also nullifying the 1981 amendment in the process. It’s this decision that is currently facing challenge in the Supreme Court.
On appeal by the university, the SC stayed the decision of the Allahabad High Court. In 2019, a three-judge bench led by then CJI Ranjan Gogoi referred the same matter to a seven-judge bench.
Can private property be redistributed?
CJI Chandrachud is also leading a bench that will decide whether private property can be considered “material resources of the community”. This is linked to the question of whether such property can be distributed to “serve the common good” under Article 39 (b) of the Constitution.
Article 39 (b) imposes an obligation on the state to redistribute the material resources of a community such that it serves the common good.
The question was raised after an array of Supreme Court cases in which the court had expressed uncertainty about whether private property can indeed be a community’s material resource.
The Property Owners’ Association (POA), representing over 20,000 landowners in Mumbai, had filed the first petition in the matter in 1991 challenging amendments to a Maharashtra housing law in 1986 that allowed certain properties to be taken over for restoration.
While the challenges were pending, the Maharashtra government in 2019 again amended the housing law to mandate that if homeowners failed to restore their property within a deadline, the state government would take over the property.
The POA alleged that the amendments granted unrestricted power to the Mumbai Building Repair and Reconstruction Board for seizing residential complexes.
The matter has now come before the Supreme Court and it will take a call on whether such resources (such as private property in Mumbai) are actually a “material resource” that can be redistributed under Article 39 (a).
Can ‘ineligible’ persons appoint an arbitrator?
The Supreme Court is also hearing a case about whether someone who is ineligible to be an arbitrator can nominate someone else to be an arbitrator.
Arbitration is a form of private dispute resolution mechanism where parties appoint a neutral third party to decide their dispute. Even though the parties can choose their own arbitrator, in certain cases, someone may be ineligible to be appointed as arbitrator for reasons such as their relationship with the parties or their lawyers.
One party frequently enjoys unbridled power to appoint an arbitrator and thus has an unequal influence on the outcome.
This matter is being considered by the SC after a series of conflicting decisions by various three-judge SC benches, which had differed on the question of whether “ineligibility” also transfers to the appointee.
A larger bench of the SC is slated to settle this question of ineligibility.
Who will regulate industrial alcohol?
CJI Chandrachud heads a nine-judge SC bench which has been tasked with the question of whether the regulation of “industrial alcohol” is within the bounds of the central or the state government.
Both industrial liquor and drinkable liquor are manufactured from the same spirit, before industrial liquor further undergoes chemical processes for it to become industrial alcohol, making the regulation of such substances critical.
The crux of the controversy lies between two conflicting items in the Constitution’s Seventh Schedule, which prescribes the power of legislation.
On one hand, the Centre has the power to regulate industries “in public interest” under the Union List, where only the Centre can make laws. On the other, the state government has the power to regulate intoxicating substances under the State List, which is within the competence of only the state government. The Concurrent List allows both the Centre and states to make laws on a subject.
This has been a consistent bottleneck in Centre-state relations, with both the Union government and states claiming that they have the power to regulate industrial alcohol.
Is royalty for extracted minerals a ‘tax’?
Before the SC is the oldest nine-judge Constitution bench case, which has been pending for over 25 years – a question of whether royalty paid by mine operators to the government is a “tax”. This can also have a significant impact on the revenue of states.
Section 9 of the Mines and Minerals (Development and Regulation) Act mandates that mine operators have to pay a “royalty to the Union government” for the right to use, explore and evaluate the minerals.
If the royalty is considered a “tax” on land, the state government could then charge additional tax on the land. If not, such additional tax would be impermissible.
The dispute arises from the Tamil Nadu government’s demand of tax from one India Cement Limited back in 1963 in addition to “royalty” on minerals which was paid to the central government.
In a series of appeals, a seven-judge SC bench finally said in 1989 that royalty was in fact a tax. However, high courts and the SC have since disagreed with the bench and said that such an observation was an inadvertent typographical error, and the court only intended to refer to additional tax by the state government as a tax, and not royalty as tax.
The long pending dispute has significant financial implications for state governments and mining lease-holders. The verdict in the matter was reserved earlier this year by a nine-judge bench.
(Edited by Nida Fatima Siddiqui)