Thursday, January 02, 2014

The “Substantial Question” Question

Section 145(3) of the Indian Constitution states:
“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.”

I and others have written on this provision elsewhere, but given recent debates over the perceived deteriorating quality of Indian Supreme Court jurisprudence I think it’s worthwhile to return to the question of what this section means and if it’s been properly followed by the Court. The number of five judge or larger benches has declined dramatically since the 1970s to the point where there are on average less than ten a year. Many commentators, including several prominent lawyers, have argued that there should be more five judge benches, or even a dedicated constitution bench/court of five or more judges, to help harmonize perceived conflicts between smaller benches and in general help improve the quality of the Court’s jurisprudence.

But what does 145(3) actually mean and demand of the Court? I think on a plain reading “any case involving a substantial question of law as to the interpretation of this Constitution” is actually fairly ambiguous, largely because it’s difficult to know what “substantial” means. Here are some possible interpretations that come to mind on a first reading:
(1) Any case involving the interpretation of the Constitution. After all, it’s probably a “substantial” question for the parties involved, even if to no one else.
(2) Any case that turns on the interpretation of the Constitution (i.e. the interpretation of the Constitution is of substantial, not secondary, importance to the case).
(3) A case that is of general importance to the country (i.e. a case of “substantial” importance)
(4) A new or novel question of the interpretation of the Constitution (i.e. a question that has not already been decided by five judges which a smaller bench could then use as precedent – in other words, a question of “substantial” novelty)

There are likely other plain meaning readings, but let’s start with these four. Does any other provision of the Constitution tell us anything about how to interpret 145(3)? Well, the phrase “substantial question” is used elsewhere in the Indian Constitution. Importantly, in section 133, discussing the Court’s appellate jurisdiction for certified civil matters, the Constitution states that one of the criteria for a case to be appealed is “that the case involves a substantial question of law of general importance.” This is telling. This provision seems to indicate that not all substantial questions of law are of general importance. If all substantial questions were of general importance than why would it have to be stated explicitly in the text that only appeals of substantial questions of law of general importance could be certified for appeal. So we have a good first clue about what the intent of the framers might have been. “Substantial question” seems to mean something different than “general importance” (maybe it means more, maybe less, but it’s not the same). So plain meaning interpretation (3) above is cast into some doubt along this line of reasoning. 

If we turn to the constituent assembly debates we get far more information about how the drafters interpreted this provision themselves and we see that they most likely meant some variation on plain meaning interpretation (2) above. Shri Alladi Krishnaswami Ayyar on June 6th, 1949 when supporting what would become 145(3) states:
"The main point of the proviso is that judicial time need not be unnecessarily wasted. A constitutional point may be raised by a party in the course of a general appeal in which other questions are raised. A court hears the appeal; it comes to the conclusion that really the constitutional point that is raised is not necessary for the disposal of the appeal, and that the case can be easily disposed of on the other point that has been raised. Under those circumstances it will be sheer waste of judicial time that a Bench of five Judges should hear this case, if otherwise a Bench of three Judges can under the rules of the Court dispose of the appeal. Therefore the provision is made-if the Bench that is hearing the case is satisfied that a real question of constitutional law has arisen, for the proper disposal of the case, the matter is referred to a full Bench of five Judges. They hear the constitutional question and the matter comes back before the three Judges who hear the original appeal and the other points of law that have been raised and that Bench disposes of the case. 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."

From this statement we get a clear idea of how Ayyar interpreted the provision – any question of constitutional interpretation should be heard by five judges, unless the case could be decided on other non-constitutional grounds, in which case a smaller bench can hear the matter and decide on those non-constitutional grounds. In other words, “substantial” simply means “necessary for the disposal”, or that the case turns on constitutional interpretation.  

This view is backed up by Ambedkar during at least two other points in the debates. On June 3rd 1949 he remarks:
"I have tabled an amendment to clause (2) of article 121 which says that wherever an appeal comes before the Supreme Court and it involves questions of constitutional law, the minimum number of judges, which would sit to hear such a case shall be five, while in other cases of appeals where no question of Constitutional law arises, we have left the matter to the Supreme Court to constitute the Bench and define the number of judges who would be required to sit on it by rules made thereunder. Now, that is an important distinction, namely, that a Constitutional matter coming before the Supreme Court will be decided by a number of judges not less than five, while other cases of appeals may be decided by such number of judges as may be prescribed by rule." Here, Ambedkar doesn't even seem to think it necessary to mention the word “substantial” and that it’s just any interpretation of constitutional law that requires five judges.

On June 8th 1949Ambedkar elaborates on this point along the lines of Ayyar: "According to the original draft it was provided that in all cases where there was an issue relating to the interpretation of the constitutional law, such an appeal should be decided by a Bench of five Judges. The question that was raised by Shri Alladi Krishnaswami Ayyar was that a party may, quite wickedly so to say-for the purpose of getting the benefit of a Bench of five-raise in his grounds of appeal a question relating to the interpretation of constitutional law which ultimately might be found to be a bogus one having no substance in it. Why should five Judges of the Supreme Court waste their time in dealing with an appeal where as a matter of fact there was no question of the interpretation of constitutional law? The House will remember that his argument was accepted and accordingly, if the House has got papers containing the Fourth Week's Amendment, List No. I, Amendment 43, they will find that we then introduced. proviso which said that in a case of this sort where an appeal comes from a High Court involving not necessarily the question of the interpretation of law but involving other questions, the appeal should go to an ordinary Bench constituted under the rules made by the Supreme Court which may, I do not know, be a Bench of either two Judges or three Judges. If after hearing the appeal that particular Bench certifies that there is as a matter of fact a substantial question of the interpretation of the Constitution, then and then alone the appeal may be referred to a Bench of five Judges. Even then Bench of the five Judges to which such an appeal would be referred would decide only the constitutional issue and not the other issues. After deciding constitutional issues the Judges would direct that the case be sent back to the original Bench of the Supreme Court consisting either of two or three Judges to dispose of the same."

These observations during the constituent assembly debates give us a pretty clear idea of how the framers interpreted 145(3). This is indeed quite different from current Supreme Court practice and to be followed would require dramatic changes in how the Court hears matters involving the interpretation of the Constitution.

It’s important to note I am not necessarily arguing here that the Court should follow the framers intent (or what we can glean of it). I think interpretation of the constitution should involve (1) a plain meaning reading of the Constitution; (2) an attempt to harmonize the meaning of different sections of the Constitution; (3) an examination of the intent of the framers; (4) an examination of relevant jurisprudence; and (5) an examination of what is good policy.  I do not have space to weigh all these factors here. In this post, I have simply noted that a plain reading is ambiguous, an attempt to harmonize 145(3) with the rest of the Constitution would warn against interpreting “substantial question” as meaning a question of “general importance”, and that the founders were quite clear that substantial question simply meant matters in which the case turned on constitutional interpretation. In future posts I might look at relevant jurisprudence (although there doesn’t seem to be much on point) or what would be good policy.

I do think though the Supreme Court does need to constitute a larger bench to interpret how it will interpret 145(3) going forward. The Court’s current practice seems to be against the framer’s intent and if the Court wants to continue to deviate it should articulate clear reasons why especially when many are critical of its current practice.
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