Which nine-judge bench cases will the Supreme Court hear next?

The Supreme Court, on October 7, 2023, listed four nine-judge bench cases to be presided over by Chief Justice of India D Y Chandrachud.

Of the four, in March 2024, the court completed hearings in the case to decide if states have the power to impose taxes on mining leaseholders, in addition to the royalties leaseholders are bound to pay under the Mines and Minerals (Development and Regulation) Act, 2023. The court is currently hearing another nine-judge bench case from the list on states’ powers, this time on whether states can enact laws to regulate and tax “industrial alcohol” or if the Centre exercises exclusive control on the subject.

The remaining two cases from the list have both been pending before the Supreme Court for over 20 years. Here is what you need to know about them.

CASE 1: Can privately owned resources be considered “material resources of the community”?

Article 39(b) of the Constitution of India places an obligation on “The State” to create policy towards securing “that the ownership and control of the material resources of the community are so distributed as best to subserve the common good”. This provision falls under Part IV of the Constitution titled “Directive Principles of State Policy”, which are meant to be guiding principles for the enactment of laws, but are not directly enforceable against citizens.

Mumbai is heavily populated with old, dilapidated buildings that house tenants despite becoming increasingly unsafe due to lack of repairs. In order to repair and restore these buildings, the Maharashtra Housing and Area Development Act, 1976 (MHADA) imposes a cess on its occupants. This is paid to the Mumbai Building Repair and Reconstruction Board (MBRRB) which oversees repair and reconstruction projects for these “cessed buildings”.

Invoking the obligation under Article 39(b), the MHADA was amended in 1986. Section 1A was inserted containing a declaration that the MHADA is meant to secure the principle of Article 39(b) and to execute plans for acquiring lands and buildings in order to transfer them to “needy persons” and the “occupiers of such lands or buildings”.

The amendment also inserted Chapter VIII-A into the MHADA which contains provisions allowing the state government to acquire cessed buildings and the land they are built on if 70% of the buildings’ occupiers make such a request. The Property Owners Association in Mumbai challenged Chapter VIII-A at the Bombay High Court that same year claiming that the provisions are discriminatory against the owners of the properties and violate the right to equality under Article 14. However, the court held that laws enacted in furtherance of the principles in Part IV could not be challenged on the grounds that they violated the right to equality as per Article 31C of the Constitution.

The Association approached the Supreme Court in December 1992 to appeal the Bombay HC’s decision. At the Supreme Court, the central question became whether “material resources of the community” as per Article 39(b) includes privately owned resources — which would include cessed buildings. In February 2002, a seven-judge bench noted the court’s decision in Mafatlal Industries Ltd vs Union of India (1997) where a nine-judge bench held that Article 39(b) covers privately owned resources as well.

The seven judge bench, taking note of this decision, stated “we have some difficulty in sharing the broad view that material resources of the community under Article 39(b) covers what is privately owned.” and referred the challenge to Chapter VIII-A of the MHADA to a nine-judge bench. This case has now been pending at the Supreme Court for over 31 years.

CASE 2: What is the definition of “industry” under the Industrial Disputes Act, 1947?

The Industrial Disputes Act, 1947 (IDA) contains a wide definition of the word ‘industry’ under Section 2(j). It is defined as “any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen”.

In the case of Bangalore Water Supply & Sewerage Board vs A Rajappa (1978), a seven-judge bench was asked to determine if the Board in question could be considered an industry as some employees who were terminated had initiated proceedings under the IDA to recover payments that they claimed were due to them.

The court held that the definition in the IDA was intentionally made as wide as possible and that state activities could fall under this definition. As a result, a majority of professions were included within the definition of industry, with the exception of employment where there is no organised labour, observing “The whole purpose of the Industrial Disputes Act is to focus on resolution of industrial disputes and regulation of industrial relations and not to meddle with every little carpenter in a village or blacksmith in a town who sits with his son or assistant to work for the customers who trek in.”

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The court also repeatedly flagged difficulties in providing a definition to the word “industry” that would provide clarity to what has already been provided in the IDA. It beseeched the Legislature pass a bill to “clean up the fog and remove the doubts and set at rest once for all the controversy which…(renders) it necessary for larger Benches of this Court to be constituted which are driven to the necessity of evolving a working formula to cover particular cases.”

This observation would prove to be prescient when, in 2005, a five-judge bench was constituted on account of two conflicting decisions on whether a state social forestry department, which are the result of welfare schemes for environmental protection, would be covered by the definition of industry. The court acknowledged that limitations would have to be placed on the definition of industry under the IDA and noted that though Parliament passed an amendment to the IDA containing a more comprehensive definition, it was never notified by the Centre and remains dormant.

In order to provide clarity on the definition of industry the case was referred to a larger bench. In 2017 a seven-judge bench referred the case to a nine-judge bench taking note of “serious doubts: regarding the “correctness of the view taken in Bangalore Water Supply’s case”.

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