The Constitution Bench conundrum: Why clarity before action is needed

By Jyotika Randhawa

The new Chief Justice of India made it amply clear even before he took oath that he would be prioritising Constitution Bench matters during his 2 months tenure. As we have witnessed in the last week, he is surely walking the talk on this promise. Given that the Supreme Court has not had a single active Constitution Bench in the last year, this is definitely a welcome change. However, as important as it is to expeditiously dispose the pending 47 main (and 671 connected) five, seven, and nine judge bench matters, it is critical that the Supreme Court settles the jurisprudence on what in fact constitutes a Constitution Bench matter.

As per Article 145(3) of the Constitution, “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”. Such cases are ordinarily referred to as “Constitution Bench matters”.

At present, cases are first heard by a division bench of the Supreme Court, which if it deems fit, refers the matters to a Constitution Bench through a “reference order”. This order should typically outline the reasons for the referral and the questions of law to be decided by the Constitution Bench.

While the process for referral appears to be straightforward, the semantics of the term “Constitution Bench matters” continues to remain an enigma. The judiciary has never authoritatively determined what constitutes “substantial questions of law” that “involve Constitutional interpretation”.

In fact, an observation to that effect was made by the Supreme court itself in Shrimanth Balasaheb Patil (2019), where it noted that the requirements under Article 145(3) have not been dealt with by the judiciary and have mostly “received mere lip service...” Even though the court was discussing grounds for rejecting unmeritorious references, the observation unequivocally demonstrates the ambiguity around the scope of Article 145(3). Which begs the question - if there are no set parameters, how then is the Court deciding which matters merit reference to the Constitution Bench?

In order to draw inferences on what the Supreme Court may be considering as Constitution Bench matters, we analysed the reference orders of 25 pending Constitution Bench cases. For the purpose of this exercise, only those cases were considered which were specifically identified as Constitution Bench matters in the reference orders.

On perusal, we found that most of the orders did not contain a reason for why the specific questions arising in the case were considered “substantial questions of law involving Constitutional interpretation”. In five of the cases, no substantive reasoning was given for referral to a Constitution bench; questions were simply framed and deemed to be “substantial questions” within the meaning of Article 145(3). Some of the reference orders did not even frame the questions for consideration, and one simply stated “post for hearing before a Constitution Bench”.

For the orders that did provide reasons, broadly three categories of reasons could be identified.

In the first category, issues were referred to a Constitution Bench when they involved “reconsideration of a previous Constitution Bench decision”. Judicial propriety and the Doctrine of Precedent require that all previously decided Constitution Bench matters should be revisited by a Constitution Bench of the same or larger quorum. Reconsideration of a previous Constitution Bench decision is, therefore, a valid ground for referral to a Constitution Bench.

In the second category, cases were referred with a reasoning that they involved issues that require interpretation of a Constitutional provision. By this rationale, all cases requiring Constitutional interpretation need to be referred to a Constitution Bench. Yet there are many cases where Constitutional interpretation is being undertaken by three, even two, judge benches. Anuradha Bhasin (2019) saw a three-judge bench decide whether Article 19 included the freedom to carry out any trade or profession over the internet, in the context of the internet shutdown in Kashmir. The question of whether the Right to not be Deported is applicable to foreigners under Article 19 was also answered by a 2 judge bench. How then does the Court decide which Constitutional provisions merit interpretation by the Constitution Bench?

In the third category, cases were referred because the issues involved were identified to be of “great importance”, having “wide ramifications”, or to be of “substantial public importance”. But what is considered seminal or significant is often subjective. For instance, while upholding the constitutionality of Section 377, the two-judge bench in Suresh Kumar Koushal alluded to the fact that the LGBTQ community formed only a miniscule fraction of the population and that even a smaller fraction amongst them had been prosecuted using Section 377. Ergo, the issue at hand was clearly not of “great importance” as per the bench. On the other hand, the same issue was later referred to a Constitution Bench in Navtej Singh Johar (2016) because it was understood that “fulfilment of one’s sexual orientation” involves important elements of privacy, dignity, and identity. Therefore, is seminality or the scale of impact really the appropriate litmus test for Constitution Bench matters?

The lack of clarity surrounding Constitution Bench matters is detrimental to both the development of Constitutional jurisprudence and the disposal rate of the Court. In the absence of set parameters, matters of Constitutional significance are being heard and decided by two or three judge benches, in direct contravention of the intent of the Constitution makers. The specific requirement of a five-judge or larger bench under Article 145(3) meant that the Constituent Assembly wanted a lot more diversity of opinion and expertise in these cases. This lack of clarity has also led to duplicity of proceedings in many instances. Case in point, the Section 377 issue mentioned above.

Therefore, clarifying the jurisprudence on Constitution Bench matters must become a priority for the Supreme Court. Any interpretation rendered would undoubtedly evolve and expand just like other provisions of the Constitution. But in the interest of constitutional jurisprudence and the courts’ time, some uniformity and certainty is needed. And what better time than now, when the CJI-led Constitution Bench is considering the viability of restructuring the Supreme Court in V Vasanthakumar (2016), including the establishment of a separate Constitutional Division.

Jyotika Randhawa is a Research Fellow with the Justice, Access and Lowering Delays in India (JALDI) team at the Vidhi Centre for Legal Policy.