Reference To A Constitution Bench

Article 145(3) mandates that any matter that involves “a substantial question of law as to the interpretation of this Constitution” should be heard by a Bench of not less than five Judges of the Supreme Court – what is commonly referred to as a Constitution Bench. Simply put, not every matter that relates to the interpretation of the Constitution or the laws is to be referred to a Constitution Bench, but only those that have a substantial question of law in relation to the constitutional text. The need for references to a Constitution Bench go to the nature and the scheme of our Apex Court – that of being a constitutional court, and unlike the Supreme Court of the United States a regular appellate court. The Apex Court is also bestowed with the jurisdiction to try original suits, and is a custodian of the fundamental rights in Part III. The scope of Article 145(3) was determined upon by the Apex Court in Rao Shiva Bahadur Singh v. State of Vidhya Pradesh, (1955) 2 SCR 446, where in the opinion penned by S.R. Das, J. (as he then was), it was held that only substantial questions involving interpretation of the Constitution needed to be heard by a Constitution Bench, and any other ancillary questions could be referred back to a Division Bench to decide. In other words, the Court took a view that only such substantial questions relating to the interpretation of the Constitution ought to be referred under Article 145(3). In Bhagwan Swarup Lal v. State, K. Subba Rao, J. (as he then was) opined that once a question had been decided by the Court, it ceased to be a substantial question of law, and such a substantial question of law arose only when a new interpretation was offered to the constitutional text.[1] This power under Article 145(3) must not be confused with the power of the Supreme Court to refer to a larger Bench, while doubting the correctness of a Bench of lesser or co-equal quorum. This power was first recognized in the Bengal Immunity Co. v. State of Bihar, by S.R. Das, C.J., while reading “the law laid down” being binding on all Courts under Article 141, and the procedure for the same has been detailed in the opinion of Lahoti C.J., in Central Board of Dawoodi Bohra Community.

The first matter to be heard by a Constitution Bench under Article 145(3) was the famous case of A.K. Gopalan, which dealt with, for the first time, a reading and interpretation of Part III, especially Articles 21 and 22. From then to now, the Court has gone a long way, and a number of matters have been referred to Constitution Benches. More recently, in the past few months, several matters have been referred to Constitution Benches, including that of whether the Courts can place reliance on Parliamentary Standing Committee Reports, the meaning and scope of deemed conversion upon marriage under the Special Marriage Act, whether top government functionaries can make public statements against public policy, etc. Some other matters with a constitutional overtone, like the validity of criminal defamation within the meaning of Article 19(1)(a), the constitutional validity of the RTE Act, the validity of Section 377 of the IPC, the validity of Section 8(4) of the RP Act, the validity of Section 66A of the IT Act, etc. have been decided by Division Benches of two or three Judges. In other words, there is no uniformity as to what constitutes a “substantial question of law relating to the interpretation of this Constitution” as mandated in Article 145(3), which requires that all constitutional questions are to be decided by a Constitution Bench. However, keeping in view the dicta laid down by the Court, a new or different interpretation of the constitutional text would justify a reference under Article 145(3). It is submitted that matters ought not to be referred to a Constitution Bench as a matter of routine, but in those cases where the path of interpretation has not been tread by other Benches of the Court. A classic example is the reference made to a Constitution Bench by Katju J. in Mathai v. George[2], to lay down guidelines for the exercise of discretion under Article 136 despite there being numerous judgments on the point. Rightly, the reference came to be rejected by a Constitution Bench observing “no effort should be made to restrict the powers of this Court under Article 136 because while exercising its powers under Article 136 of the Constitution of India, this Court can, after considering facts of the case to be decided, very well use its discretion. In the interest of justice, in our view, it would be better to use the said power with circumspection, rather than to limit the power forever.”

Sir Alladi Krishnaswamy Aiyer, in the Constituent Assembly, stated “…The main point of the proviso is that judicial time need not be unnecessarily wasted. A constitutional point may be raised by a party in the course of a general appeal in which other questions are raised. A court hears the appeal; it comes to the conclusion that really the constitutional point that is raised is not necessary for the disposal of the appeal, and that the case can be easily disposed of on the other point that has been raised. Under those circumstances it will be a sheer waste of judicial time that a Bench of five Judges should hear this case, if otherwise a Bench of three Judges can under the rules of the Court dispose of the appeal….”[3] Being a top legal practitioner himself, Sir Alladi may have made this prophetic statement during the debate considering Article 145 in the Constituent Assembly. Perhaps, counsel and the Court must keep in mind the views of Sir Alladi while seeking or making references to Constitution Benches under Article 145(3).

[1] State of J & K v. Ganga Singh Thakur, AIR 1960 SC 356

[2] (2010) 4 SCC 358

[3] CAD, Vol VIII, Page 644

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