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Constitution Benches and Article 145(3): What if no reference is made?

Of all the cases filed in the Supreme Court, the Constitution reserves some to be decided exclusively by benches having five or more judges. Article 145(3) of the Constitution uses imperative language in requiring the setting up of these “Constitution Benches”:

“The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution… shall be five.”

(emphasis supplied)

In this post, Shrutanjaya Bhardwaj, who was assisted by Mohit Dang, discusses the history and possible rationale of this provision, its violations by the Supreme Court, and the potential consequences of such violations.

Header Picture Credits:- Variety.com

Article 145(3): Rationale, history, and practice

The Framers’ intent behind inserting this provision is not clear from the Constituent Assembly Debates. If one were to guess, the Framers possibly wanted the Court’s decisions on significant matters of constitutional interpretation to be handed down by a bench that represented the entire Supreme Court as closely as possible. After all, normally the Supreme Court is “polyvocal”—a term popularised by Nick Robinson which means that the Court speaks through two-judge or three-judge benches consisting of different judges having diverse views of the law, justice, and the Constitution—as a result of which, judgments of the Court would rarely contain the views of the Supreme Court” as a whole. It is possible that the Framers thought it best that the Supreme Court’s pronouncements on certain matters should be more authoritative than is usually the case. 

This view was expressed by then-CJI Ranjan Gogoi in a controversial judgment referring the Sabarimala temple-entry dispute to a bench of “not less than 7 judges”:

“The purpose underlying [Article 145(3)] was, obviously, to ensure that the Supreme Court must rule authoritatively, if not as a full court (unlike the US Supreme Court). In the context of the present strength of Judges of the Supreme Court, it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges. That would ensure an authoritative pronouncement and also reflect the plurality of views of the Judges converging into one opinion. That may also ensure consistency in approach for the posterity.”

Justice Gogoi may be right after all. This hypothesis is supported by the fact that in 1950, which is when this provision was written into the Constitution, the prescribed strength of the Supreme Court was eight, which means five judges were required to constitute a majority of the Court. Even as the size of the Court kept expanding over the years with more and more judges being added, early practice of the Court shows the setting up of larger and larger benches—as close as possible to a “full Court”—for the purpose of deciding matters involving constitutional interpretation. Examples include: M.P. Sharma (1954) and Bengal Immunity (1955) where all 8 judges of the Court sat to interpret Articles 20(3) and 141 respectively, Kathi Kalu Oghad (1962), the Banks Nationalisation case (1970) and the Privy Purses case (1970) which were decided by 11 judges out of a total strength of 14, and of course Kesavananda Bharati (1973) which was decided by 13 out of the 14 judges.

But this trend is no longer visible. Since Kesavananda, despite the constant increase in the Supreme Court’s strength (the current strength is 34), we have never had a 13-judge bench and only once had an 11-judge bench. In fact, Nick Robinson et. al. have shown that the number of Constitution Benches constituted by the Supreme Court has reduced over the years. This decline corresponds to the increasing strain on the Supreme Court’s appellate docket which makes it difficult to dedicate judicial time and resources towards the setting up of a bench having five or more judges. “In the 1960s”, Robinson notes, “a much less congested Supreme Court heard about 100 five-judge or larger benches a year. By the first decade of the 2000s, the court averaged only about 10 constitution benches a year.” 

It is unlikely that the number of cases involving constitutional interpretation has reduced; a more plausible explanation is that the Court simply does not refer matters to Constitution Benches even when it is required to under Article 145(3). Several examples confirm this. In the famous ADR case (2002), a three-judge bench declared that the right to free speech under Article 19(1)(a) includes the right to “receive information” (interestingly, Reddi, J. in a later dissent argued that ADR should have been referred to a Constitution Bench as it added a completely new dimension to the freedom of speech). Arguably the first authoritative interpretation of Article 27 (which prohibits the appropriation of tax money towards the maintenance or promotion of any religion) was given by a two-judge bench in 2011. In 2013, a two-judge bench held that the right to receive information under Article 19(1)(a) does not include the right to know the vegetarian or other origins of the ingredients of medicinal drugs. In a 2019 judgment, a two-judge bench declared that “service bonds” which require doctors to serve in government hospitals for a short period for “decent stipend” do not amount to forced labour under Article 23, and in any case are saved by the “compulsory service for public purposes” exception. Anuradha Bhasin, in which the Supreme Court inchoately recognised a fundamental right to internet, was delivered by three judges. Recently, in the Shaheen Bagh case, a three-judge bench expounded on the question of ‘balancing’ the right to protest against the right to urban mobility. Importantly—and this what makes the constitutional violation most blatant—these judgments do not even consider whether the case should be referred to a Constitution Bench in accordance with Article 145(3). 

This is worrying not only because it demonstrates a constitutional violation but also because it hints at a potential decline in the quality of adjudication of constitutional questions. In a fascinating study of the Indian Supreme Court, Andrew Green and Albert Yoon assessed judgments on their “legal grounding”, i.e., the quality of citing and following precedent. They found that “more legally grounded cases (…) tended to be decided by larger panels (panels of five or greater) and constitutional cases were among the cases that were more legally grounded.” This is quite understandable given the comparatively relaxed pace at which Constitution Bench matters are decided. A failure to refer matters of constitutional interpretation to five-judge or larger benches, therefore, adversely impacts the quality of Indian constitutional law.

From our discussion thus far, three reasons emerge as to why the failure to refer matters to constitution benches is worrisome: first, non-reference violates the Constitution; second, larger benches more closely represent the views of the entire Supreme Court and hence deliver more authoritative judgments; and third, Constitution Benches have been shown to deliver judgments that are better grounded in precedent and hence qualitatively superior. Given these important considerations, it is important to ask whether a violation of Article 145(3) brings any consequences at all.

Validity of judgments given in violation of Article 145(3)

The Supreme Court’s judgments have binding value because of (i) Article 141 which makes “law declared by the Supreme Court” binding on all other courts, and (ii) the common law doctrine of stare decisis according to which even benches of the Supreme Court are bound by law declared by co-equal or larger benches. It is doubtful whether an interpretation of the Constitution rendered by a two-judge or three-judge bench could be said to be “law declared by the Supreme Court” or could bind other benches of the Court.

Identifying “law”: Judgments per incuriam and coram non judice

The first important question is whether such a pronouncement would be “law”. The well-known rule of per incuriam—where “per incuriam” refers to a decision given in ignorance of a binding authority such as a constitutional/statutory provision or judgment—is an exception to both Article 141 and stare decisis. Thus, contrary to the ordinarily binding nature of the Supreme Court’s judgments, decisions given per incuriam are not binding “law”. Applying this principle, if a two-judge or three-judge bench of the Supreme Court pronounces a judgment in ignorance of Article 145(3), i.e. without even considering whether a reference ought to be made to a larger bench, the judgment would be per incuriam and hence not “law”. But it is possible that a bench does apply its mind and decides that no reference ought to be made because no substantial question of constitutional interpretation arises. In such a case, the principle of per incuriam would not apply.

In contrast, the doctrine of coram non judice would apply to all cases where the Court wrongly fails to refer the matter to a larger bench, whether as a result of ignorance of Article 145(3) or an erroneous judgment about whether a substantial question arises in the case. Article 145(3) creates, to borrow civil law parlance, a jurisdictional bar such that two-judge and three-judge benches lack subject-matter jurisdiction with respect to matters involving constitutional interpretation. And it is a well-settled civil law principle that the lack of subject-matter jurisdiction strikes at the root of the proceedings; any judgment rendered by an authority lacking such jurisdiction is “coram non judice” and a “nullity”. In that sense, a judgment by a two-judge bench on a substantial question of constitutional interpretation is as much a nullity as a criminal conviction handed down by a Rent Controller, for both authorities are deciding issues that are specifically placed beyond their competence.

Judgments rendered in violation of Article 145(3) hence cannot be “law”. They cannot bind either the lower courts or other benches of the Supreme Court.

Defining “The Supreme Court”

The second important question—a more foundational one—is whether such a pronouncement could be said to be declared “by the Supreme Court”. Since Article 145(3) uses peremptory language and requires that substantial questions of constitutional interpretation “shall” be decided by a “minimum” of five judges, could it be argued that a bench comprising less than five judges is not “the Supreme Court” at all? Article 145(2) is instructive in this regard: 

“Subject to the provisions of clause (3), rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts.”

It is this provision that allows the Chief Justice of India on the administrative side to create “rosters” and divide the Supreme Court into “Division Courts” of two-judges and three-judges. In other words, it is only by virtue of this provision that Single Judges and Division Courts can discharge judicial functions as “the Supreme Court”; absent this provision, I suggest, the Court would have to sit en banc to function as “the Supreme Court”. 

The phrase “Division Courts” deserves some attention in this context. In traditional parlance the phrases “division court” and “full court” are opposed to each other—while the former is a division or a part of the Court, the latter is understood as representing the entire Court. This understanding of full benches is also in line with the ‘representation’ justification for constituting larger benches, which is discussed earlier in this post. Since before the commencement of the Constitution, High Courts across India have been employing not only this terminology but also the practice of referring important questions of law to a full bench or full court. Once the question of law is decided by the said larger bench, the matter is sent back to the division court or division bench for disposal on facts. While explaining the proviso to Article 145(3) in the Constituent Assembly on 6th June, 1949, Alladi Krishnaswami Ayyar said that the Constitution Bench was analogous to the system of full benches prevailing in the High Courts:

“This is the normal procedure followed in cases where any point is referred to a full Bench for consideration by the High Courts in India. The idea is to assimilate this procedure to the procedure that is being followed for full Bench references to the High Court.”

Viewed in this light, Article 145 implicitly lays down two different meanings of the phrase “the Supreme Court”—for matters involving substantial questions of constitutional interpretation, it means a Constitution Bench, and for ordinary matters, it means a Single Judge or a Division Court as per the rules made by the Chief Justice. This dichotomous nature of the Supreme Court’s identity is reinforced by the opening words of Article 145(2) which render the administrative bench-setting power of the Supreme Court “subject to the provisions of” Article 145(3), implying that while Division Courts may ordinarily discharge the Supreme Court’s judicial functions, they shall not do so when substantial questions of constitutional interpretation are involved. 

Conclusion

Judgments delivered by two-judge or three-judge benches of the Supreme Court in violation of Article 145(3) do not constitute “law” because they are hit by the doctrines of per incuriam and coram non judice. Equally, they cannot be said to be declared by “the Supreme Court” insofar as Division Courts do not constitute “the Supreme Court” when it comes to substantial questions of constitutional interpretation. Hence, a pronouncement by a Division Court in violation of Article 145(3) neither constitutes “law declared by the Supreme Court” for the purposes of Article 141 nor is it a binding judgment for the purposes of stare decisis. It can be—and indeed must be—ignored by subsequent benches.

Views expressed are personal.

The author is an advocate practicing in Delhi and Sonipat. He is a graduate of National Law University, Delhi and holds an LL.M. degree from the University of Michigan Law School where his focus areas of study were constitutional law, media law and human rights. He is grateful to Mr. Mohit Dang (RGNUL) for his excellent research assistance.

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