In
the previous post I wrote upon an interesting question that arose in law of
trusts that resulted in reference by two dissenting judges of Supreme Court to
a larger bench. There I left the possible questions over procedure and scope of
hearing in a reference made to a larger bench.
without any discussion. I shall try to cover that up in this short write
up.
The
composition of a bench hearing the matters in Supreme Court is primarily
dictated by Article 145(3) of the Constitution of India.
(3) 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 or
for the purpose of hearing any reference under Article 143 shall be five:
Provided that, where the Court hearing an appeal under any of the provisions of
this chapter other than Article 132 consists of less than five Judges and in
the course of the hearing of the appeal the Court is satisfied that the appeal
involves a substantial question of law as to the interpretation of this
Constitution the determination of which is necessary for the disposal of the
appeal, such Court shall refer the question for opinion to a Court constituted
as required by this clause for the purpose of deciding any case involving such
a question and shall on receipt of the opinion dispose of the appeal in
conformity with such opinion
With
this article the Constitution creates a space for differential treatment for
cases which merely involves a disputed question of law and cases which involves
substantial question of law as to the interpretation of Constitution itself,
with the later cases to directly be referred to five judge bench for hearing,
considering their seriousness. This preferential treatment has clearly been
held as not repugnant to any provisions of the constitution.[1] Here
I am confining myself to the questions involving the cases that only involves
substantial question of law. There have been multiple instances where the
procedure of reference has been called into question. Primarily the procedural
aspects of such situations are provided under Rule 2 of Order VII of the
Supreme Court Rules, which provides for the matter to be tabled before the
Chief justice of India for constituting an appropriate bench to decide upon the
question so referred, making it an administrative power vested upon him.
Reference
by a smaller bench to a larger bench can be made for several reasons, like a
difference in opinion between two judges or because of any need to reconsider a
decision already rendered, albeit by a larger bench. In such situation two
questions could possibly arise
- Whether a two judge bench, if the question involves a decision that is decided by a larger bench, refer the matter to an even larger bench to consider any possibility of overruling the earlier decision?
- What is the scope of hearing by the court to which the question has been referred to? Can they consider the matter afresh or they have to confine themselves only to question which has been referred to?
As
far as the first question is concerned, the Supreme Court has categorically
held in the case of Pratap Chandra Parija Vs. Pramod Chandra Patnaik,[2]
that for judicial discipline and propriety, if a two judge bench finds a
judgement of three judge bench to be so incorrect that it cannot be followed in
any circumstance, the proper course would be to refer the matter before it to
another bench of three judges and only if the three judge bench also concludes
that the judgement is incorrect, then the matter can be referred to a five
judge bench. With this a direct reference to a larger bench is explicitly
prohibited. In practical terms it comes out to be a little absurd, for any
challenge to the decision of, say a 9 judge bench, has to practically go
through three rounds of arguments before progressively larger benches, with the
practise established through this decision. However, in any case, the larger
bench is still vested with powers to return the matter to the bench which
referred the matter to it on any grounds that it finds justified, without
deciding upon the question referred to it.
With
respect to the scope of such a reference there has not any categorical decision
that deals with this issue specifically, except for the case of Hyderabad
Industries Ltd. Vs. Union of India.[3] In
the case involving five judges listening to the reference made by a bench
comprising three judges, one of the parties wanted the bench to decide again upon
a question which stood settled by the three judge bench. Three different
judgements were authored by the members of the bench. Pertaining to the present
issue, the judgement by the majority in clear terms held that the conclusion
arrived at stands concluded by the decision of three judge bench and hence no
one can be allowed to re-agitate the question which already stands decided,
effectively confining the scope to only the issues which are referred to. M.B.Shah
J. interestingly enough, though was personally holding a contrary view, over
the issue that was sought to be re-agitated, held that the question cannot be
gone into as it stands decided at the time of reference.
In
the judgement dissenting from the majority on this question of reconsideration Rajendra
Babu J. comes out with a rather interesting argument. He holds that such a
power to reconsider will arise depending upon the nature of question. In the
case however, the issue to be decided could not thus be separated into two different
aspects to hold that one aspect of the matter has reached finality. Therefore,
he effectively held that in matters where the issue sought to be decided by the
larger bench, is of such a nature that segregation of the issues into different
aspects cannot be done, the larger bench cannot decide the matter in piecemeal.
Further, referring the Supreme Court Rules, he held that, it is the matter as
whole, rather than a mere question, which stands referred to the Chief Justice
under the rules for constitution of an appropriate bench. However, he clearly
holds that it is open for the larger bench to which it is so referred to decide
upon the scope and to the questions which are to be decided.
This
apart, there may also arise a situation wherein no such particular question is
referred to for the consideration of a larger bench by a smaller bench. This may
arise in a possible situation wherein two judges differ in their opinion and
merely refer the matter without formulating any particular question to be
decided. What can be the scope of reference in such a situation? Going on the
lines of Hyderabad Industries case we can safely hold a view that the larger
bench is vested with powers to decide the scope of hearing on its own.
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