Sinha J (Minority View)
Clause (3) of Art. 145
16. I regret to have to differ from my learned brethren on the construction of Article 145(3) of the Constitution which is the main question in controversy in this case. Clause (3) of Art. 145 is in these terms:
“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 Art. 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”.
It is noteworthy that the Constitution has not vested this Court with complete power to make rules as to the constitution of Benches for hearing matters coming before this Court in its Original, Appellate or Advisory Jurisdiction. Clause (2) of Article 145 has invested this Court with power to make rules fixing the minimum number of Judges who are to sit for any purpose and for defining the powers of single Judges and Division Courts. But this power is expressly made subject to the limitation laid down in clause (3) quoted above; that is to say, where any case involves a substantial question of law as to the interpretation of the Constitution (omitting the words not material for our present purpose) the minimum number of Judges prescribed by the Constitution to decide such a case is five. A case may involve questions of law as to the interpretation of the Constitution, as also other questions.
In this case we have to determine whether clause (3) contemplates the whole case or a part of a case. In my opinion, the Constitution while laying down clause (3) of Article 145 contemplates the whole matter in controversy arising in a case which may include subsantial questions of law as to the interpretation of the Constitution as also other quesions. The main clause (3), excepting cases coming within the purview of the proviso does not contemplate a splitting up of a case into parts, one part involving substantial questions of law as to the interpretation of the Constitution and another part or parts not involving such questions. My reasons for coming to this conclusion are as follows:
17. Clause (3) itself read along with the proviso makes a distinction between a “case” and a “question” of the nature indicated in the proviso to the clause. The Constitution has clearly indicated that cases coming within the purview of the proviso may be split up so as to admit of the questions of constitutional importance being determined by a Bench of it least five Judges who may, be described for the sake of convenience as a “Constitution Bench” in contradistinction to a Division Court consisting of less than five Judges, as is contemplated in the proviso. The main clause (3) requires a case of the description therein set out to be heard and decided by a Constitution Bench, whereas the proviso contemplates that only the question of constitutional importance (using a compendious phrase) has to be decided by a Constitution Bench and the case out of which such a question arises remaining in the seisin of the Division Court before which the case was originally placed for hearing.
18. The Constitution has prima placed cases involving substantial questions of law of constitutional importance on a special footing. If the framers of the Constitution had intended that not the whole case but only particular questions of the nature indicated had to be heard by a minimum number of five Judges, they would have used words similar to those used in the proviso making it permissible for the Constitution Bench to give its opinion for the decision of the case by a Division Court in conformity with that opinion.
19. A reference to the terms of Article 228 of the Constitution would also show that the framers of the constitution were fully alive to the difference between the decision of the “case itself” and a “question of law” of constitutional importance involved in that case. It has made clear in that article that the High Court shall either decide the whole case including the question of law as to the interpretation of the Constitution which was necessary for the disposal of the case or determine only such a question or questions and return the case to the original court for disposal in conformity with the judgment of the High Court on such question or questions. The Constitution made these specific provisions to emphasize that there is a distinction between determining the case itself and determining a substantial question of law of constitutional importance.
20. Can it be said that if clause (3) of Art. 145 had been enacted without the proviso, a case could be heard piecemeal first by a Constitution Bench which would determine only questions of law as to the interpretation of the Constitution, and then the residue of the case being heard and determined by a Division Court? That, in my opinion, would not be in compliance with the imperative provisions of the main clause (3) The framers of the Constitution therefore enacted the proviso in the nature of an exception to the general rule laid down in the main clause (3). It has to be observed that the proviso is limited to appeals only, subject to the further exception that such appeals should not have come up to this Court through the process laid down in Article 132 of the Constitution. It is thus clear that not all cases contemplated in the main clause (3) but only appeals of a particular description would come within the qualifying provisions of the proviso.
21. The word “case” has not been defined but it may be taken as settled law that it is much wider than a “suit” or an “appeal”. Hence whereas the proviso would apply to appeals brought up to this Court, except those under Article 132 of the Constitution, the main clause (3) would apply to all appeals and all other matters coming up to this Court in its Original, Appellate and Advisory Jurisdictions. In my opinion, there cannot be the least doubt that the main provisions of clause (3) are all-embracing, and contemplate all cases coming up to this Court.
22. It has not been contended that the present case comes within the purview of the proviso but it has been said that if it is open to a Division Court to refer a question of constitutional importance to a Constitution Bench, why should not a Constitution Bench be competent to refer questions other than those of constitutional importance to a Division Court? The answer is that whereas the former is contemplated by the Constitution in terms, the latter is not. Nor are there any rules to that effect.
23. But it has been further observed that the splitting up of a case into parts, one involving questions of constitutional importance and the remaining part not involving questions of that kind, is not against the provisions of the Constitution. But, in my opinion, if the Constitution has made a specific provision as to the splitting up of a case into parts, one cognisiable by a Court of higher jurisdiction like a Constitution Bench and the rest by a court of lower jurisdiction like a Division Court, the argument is not available that a splitting up of a case apart from those specific provisions is also permissible. In this connection reference was made to certain provisions of the Code of Civil Procedure as also of the Code of Criminal Procedure to show that those Codes do contemplate hearing of the same case in part by different courts, but those are all courts of co-ordinate jurisdiction in which the question of the power of the court itself relatively to the subject-matter of the case is not in question. The court which originally dealt with the case and the court which finally came to hear and determine the matter were each one of them competent to deal with the whole matter or any part of it.
That is not the position here. In this case the argument on behalf of the petitioner is that as admittedly his appeal involved substantial questions of law as to the interpretation of the Constitution and as it did not come within the purview of the proviso to clause (3) of Art. 145 of the Constitution, it should have been dealt with throughout by a Constitution Bench. It was suggested in answer to this argument that after the questions of law of constitutional importance had been dealt with by the Constitution Bench the case ceased to be one involving such questions and therefore could have been heard by a Division Court.
But the difficulty in accepting this argument is that once a Constitution Bench was seized of the case, it could not transfer it to another Bench for sharing the decision of that case with it. That Bench should have heard out the whole case and it had not the power to direct, and it did not so direct, that the remaining part of the case should be heard by a Division Court. Once a Constitution Bench is seized of the case, it has to hear the case to its conclusion. There was no process known to the rules framed under the rule-making power of this Court by which a case once it came before a Constitution Bench could get transferred from that Bench to a Division Court either automatically or by orders of any authority.
But it has been suggested that it may happen that a Constitution Bench may start the hearing of the case, and before the hearing is concluded one of the Judges is by reason of death or otherwise disabled from hearing out the case and in that event the Chief Justice has the power to constitute another Bench. But that is quite a different matter. In that case the hearing by the previous Bench comes to nothing and the Bench constituted afresh by the Chief Justice has to hear out the whole case afresh.
24. It has also been suggested on the other side that a “case” may mean a part of a case. In my opinion, that submission is not well founded; because, if that argument were accepted and pushed to its logical conclusion, it may make the provisions of the main clause (3) of Article 145 nugatory. Article 132 of the Constitution has been, as indicated above, excepted from the operation of the proviso to clause (3). Suppose an appeal is brought to this Court under Article 132 of the Constitution as the case involved substantial questions of law as to the interpretation of the Constitution. That case besides involving questions of that character, may also involve other questions.
If the argument that a “case” includes part of a case were accepted, then it will be permissible for a Constitution Bench to hear the questions of constitutional importance and leave the rest of the case to be determined by a Division Court; though such a case is expressly excluded from the operation of the proviso and thus is directly within the terms of the main clause (3). Hence every case coming before this Court involving a question of constitutional importance may be dealt with in part in so far as it relates to that question by a Constitution Bench and the remaining part by a Division Court. That, in my opinion, was not intended by the framers of the Constitution. The term “case” therefore must mean the whole matter in controversy before this Court. Such a matter may relate to one of several questions in controversy in the original court, if the determination of that question is sufficient to dispose of the case within the meaning of the Explanation to Article 132 of the Constitution.
25. It was further argued by the learned Attorney-General that the whole clause (3) of Article 145 along with the proviso must be read together. But even so read, the language of clause (3) does not warrant the hearing of the case piecemeal by different Benches unless it comes within the purview of the proviso. The proviso is meant to cover only a limited class of cases which otherwise would have come within the purview of the main clause (3). But the proviso cannot have a larger effect than is justified by its language, viz:, that only a question of that description has to be referred for the opinion of the larger Bench, the case itself remaining on the file of the smaller Bench. The proviso thus makes a clear distinction between a “case” and a “question”.
26. It has also been said that there is an inherent power in the court to transact its business according to its established practice. In the first place, this Court is still in its formative stages and it cannot be said to have an “established practice”. Secondly, it cannot establish a practice in the teeth of the provisions of the Constitution which it is pledged to uphold.
27. The reference to the decision of the Privy Council in 24 Ind App 22 (PC) (A) is not apt because in that case the hearing at the two stages of the trial was to be done by a court of co-ordinate jurisdiction; that is to say, a court which could hear and determine the whole case or each of the two parts of the case taken separately by itself, unlike the present case in which the two parts of the hearing have been done by two courts of unequal power. Similarly the reference to the maxim “cursus curiae est lex curiae” of Coke C. J. in 3 Bulst 48, referred to in AIR 1924 Cal 473 and to the other cases all proceed on the assumption that there is nothing in the statute law against such a course being taken. But in my opinion, such a nebulous practice is opposed to the positive provisions of clause (3) of Article 145.