The recent judgement of the Supreme Court defining the industry in State of U.P. v. Jal Bir Singh etc., Civil Appeal No. 897 of 2022 etc., while reconsidering the little less than a century old definition given in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa, (1978) 2 SCC 213, has raised an important question regarding the meaning and true spirit of Constitution Benches. In detailed dissenting opinion of HMJ Dipankar Datta writing for himself and HMJ Ujjal Bhuyan, specifically between paragraphs 6 to 10, lays down the standard as to what is meant by a “Constitution Bench”. The opinion has laid down the “who” and “what” of the Constitution Benches. It could be seen that the said restrictive definition of the Constitution Bench would adversely impact the years of jurisprudence and the outlook at the institution.
What has been held: The question of “what” and “who (how many)”
In a first, what could be the authoritative pronouncement on the topic and interpretation of Article 145(3) of the Constitution, the opinion lays down that not every bench of 5 or more judges would be a Constitution Bence, but it would qualify as one only if the twin test laid down in the said clause 3 of Article 145 is fulfilled, i.e., the minimum judges should be at least five and additional requirement of the said bench should be dealing with issue “involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143”.
It further says that when there is conflict among the two coordinate benches may be resolved by referring the matter to larger benches numerically, but they may not necessarily be Constitution Benches considering not fulfilling the second condition of Article 145(3).
In over 75 years of existence of our Constitution, and with ages of jurisprudence on the practice procedure of the Supreme Court, there are hardly any absolute ruling which would define the very meaning of “Constitution Bench”.
Therefore, the Judges adequately taking cue from the language of Article 145(3), laying down the twin test, have answered “who” as not less than 5 judges, and “what” as interpreting the constitution.
Historical development of question of “who”
The idea of Indian Supreme Court was to combine the powers of that of pre-independence era Federal Courts and the Privy Council. The duties of the Federal Court and Privy Council was divided such that, in any question involving the interpretation of Constitution, would be made to Federal Court and appeals on all other question of law would be made to Privy Council. Any appeals from Federal Court relating to these interpretations were made to Privy Council. However, with establishment of Supreme Court, these powers were somewhere combined. This was also expressed by eminent Jurist Mr. Naziruddin Ahmad during the Constituent Assembly Debate (Debate on Article 110 of draft Constitution, Volume 8, dated 03.06.1949). In his words it was stated that “…In these circumstances the powers of the Privy Council and the powers of the Federal Court as hitherto enjoyed should be combined and should be given to the Supreme Court”.
Therefore, while setting up the Supreme Court, the framers contemplated a set composition of minimum five Judges to decide the matters involving interpretation of Constitution.
This could also be seen from the 14th Law Commission report, dated 26.09.1958 presented on Judicial Reforms, at paragraph 49, the Commission reported that during its inception, the sanctioned strength was 8 which was raised later to 11. The idea behind the same was to constitute a permanent 5 judges bench to hear all questions involving interpretation of Constitution and bench with strength of 3 judges to dispose of all other matters.
But with increase of case load, more and more benches became that of “lower strength” and today on most miscellaneous days or on ordinary days of listing of matters for fresh admission, majority of the benches sit in combination of 2 judges. The presiding of a Constitution Bench has become extremely limited, mostly to the references made by the bench of lower strength in view of conflicting findings.
One another aspect as to why there is decline of Constitutional Benches is that most of the questions regarding the interpretation of Constitution has now been substantially answered and we have jurisprudence of years before us as on date.
So to agree with the limited extent of the definition proposed, there could be no qualm that the “who” of the Constitution Benches is minimum of five Judges.
The issue of “what”
This has developed a complication vide the present ruling. The observation at paragraph 8 of the opinion that any bench doubting the earlier decision is merely a larger bench. Going by the same logic, even the present judgement of 9 Judges does not amount to a judgement of the Constitution Bench. It would simply be a judgement clarifying whether there is a need to reconsider the definition of Industry or not, with no interpretation of the Constitution, strictly in terms of twin test laid down by the Judges.
However, what the bench does not note is that, even in such cases, where, in their own terms, larger bench is deciding the conflict between two benches or merely reviewing the earlier decision, there is a small pith of interpretation of Constitution that is involved. The reason could be to even lay down the law relating to the “reference” or the maintainability itself would touch upon the minute interpretation of the Constitution.
The question of “what” has been a debate, as early as 1955. In one of the firsts, in the case of interpretation of the Article 145(3), in Rao Shiva Bahadur Singh v. State of Vindhya Pradesh and Ors., (1955) 1 SCC 539, wherein the Supreme Court by majority held that a particular case can be split up in parts and only the questions relating to interpretation of Constitution needs to be answered by 5 of more judges as per Article 145(3) and rest of the question may be decided by the bench of lesser strength. However, in the dissenting opinion, Justice B.P. Sinha (as he then was), held that the Article 145(3) in its main text uses the word “case” and only in the proviso omits it, the case at hands of the Constitution Bench cannot be split and ought to be decided by it only in case even one aspect of the case requires constitutional interpretation.
Now the question is that, whether as the opinion of Judges in Jal Bir Singh, if we go by the minority verdict in Rao Shiva Bahadur, whether a unsplit judgement deciding the question of interpretation of Constitution would be partly Constitution Bench and partly merely a larger bench? Though it can be said that the minority judgement is not binding, but if a bench choses to go by it, it would essentially lead to a nullity of the interpretation/definition of Constitution Bench.
Further, the second aspect of the “what” would be what would constitute as “interpretation of Constitution”.
In an interesting ruling of State of Jammu & Kashmir and Ors. v. Thakur Ganga Singh and Anr., (1960) 2 SCR 346, where the special leave was sought for appealing under Article 132(2), upon refusal of certificate from the High Court, Five judges of the Court held that questions were primarily relating to interpretation of facts regarding the classification under Article 14 of the Constitution. Since the questions regarding classification under the said Article is already decided, any incidental questions relating to facts or application of the same would not constitute as Constitutional Interpretation, even if the questions challenge the set of regulations.
In contrast, in the case of Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, (2020) 2 SCC 595, while deciding the disqualifications Petitions and questions of Schedule X of the Constitution, when an issue was raised that the matter ought to be referred to the larger bench as it involved interpretation of Constitution, the Three judges Bench had occasion to ancillary touch upon interpretation and meaning of question of interpretation of Constitution, but held that incidental or ancillary questions having no effect on final outcome would not be substantial question of interpretation. This shows that the bench though touched upon the question, did not deem it fit to follow the text or spirit of Article 145(3) to refer the matter to “Constitution Bench”.
Definition of Constitution Bench now carved out by Jal Bir Singh
Thus being the ambiguity on “what”, the opinion laid down by the Judges would add to confusion over the meaning of interpretation of Constitution as well as would amount to creating more confusion regarding the “what” aspect to be dealt by the Court. The answer to the “what” component is not a straight jacket formula neither could be casually be carved out from the twin test apparent from the plain text of Article 145(3) and its proviso. The question of “what” component of the Constitution Benches is much more complex and complicated and would genuinely require much more interpretation by the larger benches, which would shape the functioning and procedure of the Supreme Court.
Author is an Advocate-on-Record, Supreme Court of India. Views are personal.