Thursday, March 13, 2014

More on 145(3) and a Perplexing Proviso

As Venkatesan has pointed out debates over what Article 145(3) means is on the Court’s mind these days, and for good reason – the Court has had a confused practice of implementing, if not interpreting, the Article. Critics have claimed that the resulting lack of five judge benches has hurt the quality and consistency of its jurisprudence. As a reminder, the first part of 145(3) 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:”

In earlier posts I noted that it was clear the drafters understood this article to mean that all questions involving the interpretation of the Constitution should be heard by five or more judges. “A substantial question” applied in any case in which constitutional interpretation was a substantial issue, not necessarily a case of particular constitutional or national importance. As I note in another post, this interpretation is also supported by an intra-textual reading of 145(3) with 132 and 228, which use the same substantial question phraseology (or 133 or 139A which use the language of “substantial questions of general importance” – which seems to indicate a higher threshold than 145(3)).

Although I’ve been thinking a lot about 145(3) lately, to be honest I’ve been confused about what it’s proviso means. In earlier posts, I’ve discussed a bit about what the drafters seemed to think of it – if there was a case being heard by a smaller bench and an issue of constitutional law came up then it should be heard by five or more judges. So what’s the problem? Let’s read the proviso of 145(3) again:

“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.”

Does it strike anyone else as strange that the proviso particularly excludes 132 from its content? 132 after all is certified constitutional appeals. Wouldn’t 132 appeals be exactly the type of situation where you would want a five judge bench? Why exclude them?

Well, this is my hunch. The drafters assumed all 132 certified appeals would be heard by five judge benches. That’s why they had the carve out –  no need to refer questions in the case to five judges if the case was already being heard by five judges. 

At least, this is the best way I can make sense of the proviso. This is also in general supported by the early practice of the Court.  As B Sen notes in “The Supreme Court Bench and Bar” in Supreme But Not Infallible: “In the early fifties, the Supreme Court sat as a full court in all constitutional cases and in not more than two divisions where other matters were concerned.” (p. 440) He even notes, while discussing Justice Jagannadhadas, “I remember on one occasion, when sitting with four other judges, he prevailed in granting special leave even though the rest of his colleagues were opposed to it. The appeal was eventually allowed.” (448) What's notable about this remembrance is that it seems to indicate that five judges were even hearing SLP admission matters in the Court’s early years.

On its face, and given what we can figure out from early court practice, the best explanation for the proviso excluding 132 was that it was written in an environment where it was understood five judge benches would be common for many cases and mandatory for 132 appeals.

Does the historical record reveal anything else? If one goes back to the February 1948 Constitution one finds the proviso as we know it today wasn’t even there at all. Instead, there was a completely different, and quite telling, proviso, which read:
“Provided that it shall be open to every judge to sit for the said purposes unless owing to illness, personal interest or other sufficient cause he is unable to do so.”

There is an asterisk, inserted by the drafting committee, next to the Article which helps explain this different proviso: “In the Supreme Court of the United States of America all the judges of the court are entitled to participate in the hearing of every matter, and the court never sits in divisions. The judges of that court attach the greatest importance to this practice. The committee is of the opinion that this practice should be followed in India at least in two classes of cases, namely, those which involve questions of interpretation of the Constitution and those which are referred to the Supreme Court for opinion by the President.” (Shiva Rao, The Framing of India's Constitution Vol. 3 p. 560-61) The drafting committee seems to be drawing on BN Rau's famous meeting with Justice Frankfurter where the American Justice warned him about having Supreme Courts sit in panels (he thought all judges should take responsibility for all decisions).

In October 1948, based on feedback from the public, the Drafting Committee recommended changing this proviso to make clear that judges not only could, but “that it shall be the duty of every judge to sit” on benches where constitutional matters are being heard. (The Framing of India's Constitution Vol. 4 p. 160) They explained that this proviso “has a very important object: to prevent the court being packed by the exclusion of certain judges.” (p. 158) (Note this concern about bench packing has been longstanding and continues to this day. I have written about this here).

So the idea in the draft Constitution was that all judges should be hearing cases of constitutional interpretation if they were able to do so (or at least five should). Of course, back then they only envisioned eight judges on the Court.

The proviso stayed in its original February 1948 draft form until the Constituent Assembly debates when on June 6th, 1949 the issue arose. Shri T. T. Krishnamachari moved the amendment that the Drafting Committee had recommended in October 1948. However, before it could be passed Alladi Krishnaswami Ayyar proposed a completely alternative proviso:
“Provided that where the Court hearing an appeal under article [133] of this Constitution 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 to a court constituted under this clause for opinion and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.” (Note: I changed the article number to match today’s constitution)
He offered no criticism of the original proviso, simply a justification for why this proviso, which looks much more like the one we have today, should be added. Without any explanation T. T. Krishnamachari went along, the old proviso ensuring the entire Court heard constitutional matters was dropped, and this new one added.

You might notice that the proviso moved by Ayyar (and that was adopted) is differently phrased (and also has a different meaning) than the one finally adopted in today’s Constitution. Strangely, nowhere in the debates can I find this change in phrasing adopted by the Constituent Assembly. I really have no explanation for this. (Perhaps the debates didn’t record everything?)

This post was a bit of a diversion from the central debate over 145(3), but I do think it adds to the historical understanding of what the role of 145(3) was envisioned to be. Again, as I have mentioned in different posts,  just because the drafters thought the Constitution should be interpreted one way that doesn’t mean it should be interpreted that way today. That said, since the drafters had a unified vision of what different articles were suppose to mean (i.e. 145(3), 132, 228, etc.) if today we change the interpretation of 145(3) this also impacts other articles. A unified understanding of constitutional text even impacts the reading of the two different parts of 145(3) itself. The reason that the proviso of 145(3) was nonsensical to me for so long was because court practice has moved so far away. It’s only once I realized that all 132 matters used to be heard by five judge benches, and it was assumed they always would be, that the proviso can be read in a sensible manner. Or at least that’s my understanding. 
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