EWS quota, reservation for Muslims in Andhra Pradesh, polygamy and nikah halala: Supreme Court readies for big cases

With Chief Justice of India U U Lalit taking charge of office, the hiatus on Constitution bench matters is set to end. A five-judge Supreme Court bench headed by the CJI will start with two matters raising questions on reservation from September 13. 

Another Constitution bench headed by Justice Indira Banerjee will be hearing petitions challenging constitutional validity of the practice of polygamy and nikah halala permitted by Muslim personal law.

On Tuesday, the CJI bench said it will hear the matter for two-and-a-half hours on Tuesday, Wednesday and Thursday (September 16-18) and try to complete hearing one case in a week’s time.

The CJI-led Constitution bench would first examine the constitutional validity of the Centre's decision to grant 10 per cent reservation to EWS in admissions and jobs before hearing appeals against a high court verdict which had set aside a local law granting quota to Muslims. 

A five-judge Constitution bench comprising Chief Justice Uday Umesh Lalit and Justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi and J B Pardiwala said it would decide the procedural aspects and other details on September 6 and commence the hearing on the pleas from September 13.

The Centre, through the 103rd Constitutional Amendment Act, 2019, introduced the provision for Economically Weaker Sections (EWS) reservation in admissions and public services.

The top court will also hear the appeals of the state government and other such pleas against the Andhra Pradesh High Court verdict which had set aside the local law granting quota to Muslims.

A five-Judge Bench of the High Court of Andhra Pradesh, by four different opinions, had declared as unconstitutional and violative of Articles 15(4) and 16(4) (State's power to grant quota to socially and educationally backward classes) of the Constitution, the Andhra Pradesh Reservation of Seats in the Educational Institutions and of appointments/posts in the Public Services under the State to Muslim Community Act, 2005.

Nineteen petitions, including the appeal of the state government, have been filed challenging the high court verdict quashing the quota for Muslims in admissions and jobs in the state.

The Constitution bench said since the issues are overlapping, it would take up the pleas relating to EWS quota first followed by the matters relating to Muslim reservation law.

Meanwhile, the bench headed by Justice Banerjee issued notices to the National Human Rights Commission, the National Commission for Women, and the National Commission for Minorities on the plea filed by some Muslim women and others challenging the practices.

The bench, also comprising Justices Hemant Gupta, Surya Kant, M M Sundresh and Sudhanshu Dhulia took note of the submission of senior advocate Shyam Divan for petitioner Ashwini Kumar Upadhyay, who sought their impleadment. The case will be heard after the Dussehra holidays.

Upadhyay has sought a direction to declare polygamy and 'nikah halala' among Muslims as unconstitutional and illegal.

The apex court had in July 2018 considered the plea and referred the matter to a constitution bench already tasked with hearing a batch of similar petitions.

The apex court had issued notice to the Centre on the petition filed by a woman named Farjana and tagged Upadhyay's plea with a batch of petitions to be heard by the constitution bench.

The petition by the lawyer sought a declaration that extra-judicial talaq is cruelty under Section 498A of the IPC, nikah halala is an offence under Section 375 of the IPC, and polygamy a crime under Section 494 of the IPC, 1860.

The apex court, which on August 22, 2017 banned the age-old practice of instant 'triple talaq' among Sunni Muslims, had on March 26, 2018 decided to refer to a larger bench a batch of pleas challenging the constitutional validity of polygamy and 'nikah halala'.

While polygamy allows a Muslim man to have four wives, 'nikah halala' is a process under which a divorced Muslim woman has to first marry another person, consummate it and get a divorce from the second husband, if the couple were to remarry after a compromise.