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.

4 comments

  1. Nick,
    My understanding is that the word "interpretation" reduces the scope of article 145(3). To illustrate- the question in koushal is largely a question of the application of the constitution rather than its interpretation. The scope and meaning of Article 14 and Article 21 having been already settled by the apex court in earlier decisions, all the court had to do in koushal, was apply the provisions it had already interpreted ( which in my opinion it did, however incorrectly). Therefore, the question in Koushal- may indeed have been a ‘substantial’ question of constitutional law, but was not, in my opinion, a question relating to ‘interpretation’, of the constitution.
    This view was also taken by the madras high court in M. Chettiappan And Another vs Income-Tax Officer, Karaikudi 1964 54 ITR 293 Mad:
    “Naturally therefore, in an application under article 132 the case must satisfy two conditions concurrently : (i) Whether the case involves a decision on the interpretation of the Constitution; (ii) Whether that decision also involves a substantial question of law toughing that aspect. We are inclined to take the view that decisions dealing with the applicability of article 228 cannot, regardless of all considerations, govern the applicability of article 132(I).
    The essential distinction between interpretation of a particular provision of a Constitution and its application must (not?) be overlooked. Interpretation is the process of finding out the meaning, scope and operation of a particular provision, while application is merely a process of administering the law. In the instant case no question of interpretation of article 14 arises and the only question is whether section 3 of the Indian Income-tax Act would stand the test of the operation of article 14.”
    Also See : State Of Jammu & Kashmir And Others vs Thakur Ganga Singh 1960 AIR 356 (5 judge bench)
    A contrary view was taken in Raja Ganga Pratap Singh vs The Allahabad Bank Ltd. AIR 1958 SC 293 (5 judge bench)
    As far as the question of substantial question of law is concerned, the matter was examined by a 5 judge bench in Sir Chunilal M. Mehta and Sons, ltd. vs. The Century Spinning and Manufacturing Co., ltd AIR 1962 SC 1314 , where the court held that :
    “ The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.”
    Also see Rao Shiva Bahadur Singh vs The State Of Vindhya Pradesh 1955 SCR (2) 206( 5 Judge Bench), which involves the very issue discussed in the CAD, i.e. for the purpose of Article 145(3), can an issue be split up into constitutional questions and other questions.
    I agree that the above test is very vague and subjective, but I do not think there can be an objective test in this regard. In the end, you have to give the Supreme Court the discretion to decide its own structure on a case-by-case basis.

  2. Rhoiotaphi, Thanks for this. It is really useful. As I said I haven't gotten into the jurisprudence yet – although I hope to on a later post and will surely draw on some of these cites. Just a few points right now though to push back a bit:
    (1) None of these cases is actually about interpreting 145(3). Most of them seem to be about interpreting 132.
    (2) This does raise an interesting question. 145(3), 132, and 228 all use identical language "a substantial question of law as to the interpretation of the Constitution." The question is should the Court interpret this language in the same way in each place it's used or interpret it differently based on context?
    (3) The Madras judgment you cite seems to indicate context should play a large part. It says: "Even though the same words . . . are used in articles 228 and 132 the distinct object or the principle underlying the two provisions and the varying contents in which they may be invoked should be broke in mind." The Court makes this move in part because, as I understand it, it's fairly easy to overcome the 228 burden of what "interpretation" or "substantial question" means and it wants to make the 132 hurdle higher. Under this reasoning though neither the 132 or 228 jurisprudence will tell us how to interpret 145(3). That needs to be interpreted within the context of its purpose. In other words, there is no 145(3) test.
    (4) If we look at Court practice we see it all over the place historically. For instance, 132 (and 133 and 134) appeals used to be much more popular (SLPs have now come to dominate). Still, you will have over a thousand or so such certified cases filed in a given year at the Supreme Court. We don't have breakdowns I know of about how many were certified because they involved the interpretation of a substantial question of constitutional law, but of those that were should they then be heard by a five judge bench? Presumably, many that use to be so certified are now appealed via SLP, but shouldn't they still be heard by five judges? Yet what we see is a decline in five judge benches to the point where there are often only a handful a year. Is this change grounded in a proper following of jurisprudence/reasoning – whatever that jurisprudence might be – or other factors? How well thought out was this change? I agree with you that doctrines should be flexible to the needs of the times and the Supreme Court should be given discretion (within limits), but I do think it should be clear about what it's doing. Right now I don't think it is (at least publicly). If the Court wants to borrow some of the 132 jurisprudence for its interpretation of 145(3) it should justify why. My concern is that the Court's practice is just following institutional momentum blindly. Perhaps a case where it was forced to think about why it interpreted 228, 132, and 145(3) the same or differently would allow it this reflection period. It would also I think be illuminating to the public, and many lawyers I speak to who are confused about under what situations a case will be heard by five judges or not.
    (5) I will have to think more about the "interpretation"/"application" distinction and what the ramifications might be for 228, 132, and 145(3) respectively – as well as jurisprudence more broadly. I do have to say I worry about this distinction though being applied to 145(3) if it really would lead to Koushal only being heard by two judges as you say. It's difficult to imagine Ambedkar and other founders would have wanted the rights of millions of Indians to be decided by what was then referred to as a "weak bench" (i.e. a two judge bench – which didn't even become common until the 60s). I also think it's just bad policy. I do think it's worth the Court's time to give this some more thought.

  3. Nick,
    Thank you for your detailed response.
    I do not see any change in the context of the articles which would render the jurisprudence of one insignificant for the interpretation of the other. The Madras High Court merely notes that Article 132 presumes that a round of adjudication has already occurred in the high court’s vide Article 228 and therefore a certificate under 132 cannot be given as a matter of right but specifically depends on the high court’s determination under 228. It does not state that the interpretation of “ substantial question of law” should be different for 132 and 228. Similarly, I do not see any contextual element in 145(3) which would render the test given by the court in Chunilal Mehta inconsequential.
    This test is so oft repeated , both in constitutional jurisprudence and for the purpose of CPC appeals, that it would be very difficult for it to be reconsidered by the Supreme Court for the purpose of 145(3). In fact, the Court would have to give cogent reasons, why it should not apply this test to 145(3).
    There is also another aspect we have not examined. The proviso to Article 145(3) and Article 132 reveal that in case of an appeal to the SC, the reference is made subsequent to the determination that there exists a substantial question of law. Presumably, the Chief justice in his administrative capacity cannot determine whether there exists a substantial question. Assume that the matter first comes up before a division bench. Assume also that parties are allowed to pray that the matter be referred to a 5 judge bench as it involves a substantial question of interpretation of the constitution.(see for eg. Art 133(2)) However, the division bench would now be free to disregard this prayer of the parties and continue with the merits of the case. No appeal would lie from any decision of the bench even if it completely disregards the proviso to 145(3)( A review petition under 137 will go to the same bench, A curative petition would be difficult at best) . In effect, a division bench would have absolute discretion in deciding whether there exists a substantial question or not. I wonder if this makes the entire exercise academic.

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