TMI Blog1977 (11) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... ade in exercise of the powers conferred by Article 225 of the Constitution and Clause 27 of the Letters Patent, a petition under Article 226 is laid before a Division Bench for motion hearing. At the time of motion hearing, the Court may either summarily dismiss the petition or order a rule nisi to be issued against the opposite party. The purpose of motion hearing is to find out whether the petition raises arguable points. If the Bench hearing the petition at the admission stage finds that no arguable points are raised, the petition is dismissed. But if the Bench finds that arguable points are made out, the petition is admitted and rule nisi is issued. Before Article 228A was inserted in the Constitution by the Constitution (Forty-second Amendment) Act, 1976, a petition challenging the validity of any State law could be admitted by a Division Bench and could also be rejected by it at the time of motion hearing. The question is as to how far this practice should stand modified in view of Article 228A which reads as follows: 228-A. (1) No High Court shall have jurisdiction to, declare any Central law to be constitutionally invalid. (2) Subject to the provisions of Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmission stage comes to the conclusion that the point as to the constitutional validity is unarguable, can it summarily dismiss the petition ? 4. Now the requirement in Clause (3) of Article 228A that five Judges must sit is only for the purpose of determining any question as to the constitutional validity of any State law . Clause (3) comes into play only when there is a question as to the constitutional validity of any State law as it presupposes the existence of such a question. The enquiry whether there is any question as to the constitutional validity involved in a case is outside Clause (3). Therefore, this enquiry can be undertaken by a Division Bench at the admission stage. What would be the ambit of this enquiry will depend upon the meaning of the word question in the context of Article 228A. The dictionary meaning of the word question is as follows: Interrogative statement of some point to be investigated or discussed; a problem; hence a matter forming, or capable of forming, the basis of a problem; a subject involving more or less difficulty or uncertainty (Shorter Oxford English Dictionary, Vol. 2, p. 1639). In the context of Article 228A, every point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summary enquiry. The question falling under Clause (3) of Article 228A must be such which requires a detailed treatment than a summary enquiry which is held at the admission stage in deciding whether a petition raises arguable points. When a point as to the constitutional validity can be rejected summarily on the ground that there is no reasonable argument in its support, it cannot be said that the petition raises any question requiring determination within the meaning of Article 228A(3). 6. In dealing with Section 66 of the Income-tax Act, 1922, it has been held that the Tribunal is not bound to refer a question of law to the High Court for decision if it is concluded by a judgment of the highest Court. The reason is obvious. When a question is concluded by the opinion of the highest Court, it ceases to be a question as it needs no deliberation or discussion and becomes purely academic: (Mathura Prasad v. Commr. of Income-tax, (1966) 60 ITR 428 at p. 433 (SC)). Similarly, when the question raised cannot be supported by reasonable arguments, or when it is not substantial, or when its answer is self-evident, the High Court does not require the Tribunal to refer the question; (Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is unarguable, it would be an exercise in futility to constitute a Bench of five Judges for hearing such a point. If the word question is given a construction to embrace even such a point, it will lead to ridiculous and highly inconvenient results in the working of the High Court. The High Courts, it is well-known, are already flooded with cases and it is not possible to cope with the arrears even by sitting in Single Benches and Division Benches. The construction that all points as to the constitutional validity of a State law whether arguable or not must be heard even at the admission stage by a Bench of five Judges will put a heavy burden on the High Courts as a Bench of five Judges will always have to be in readiness for motion hearing of writ petitions Involving such points, more so because the expression State law is defined to include not only Acts of the Legislature but also any notification, order, Scheme, rule, etc. having the force of law. Even a question which has already been determined by the Supreme Court or by an authoritative pronouncement of the High Court will have to be placed for hearing in motion before a Bench of five Judges. A perusal of the object and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are unreal or unarguable. 9. The conclusion reached by me above is strongly supported by the Supreme Court ruling in State of W. B. v. Manmal, AIR 1977 SC 1772. The respondent in Manmal's case challenged before the Supreme Court the constitutional validity of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949. It was submitted that the provisions of the Bengal Act, particularly the proviso to Section 4(1) of the Act, offended Article 14(1) of the Constitution on the ground that a person who ceases to be a public servant could not be treated differently from a person who is a public servant in office. An application was made under Article 144A, as inserted by the Forty-second Amendment, that the appeal be heard by a Bench of seven Judges. A Division Bench consisting of Goswami and Fazal Ali, JJ. held that because a particular section is not applicable to a public servant after he ceased to be in office, the question of the Act being violative of Article 14 of the Constitution will not arise. The Court further referred to the proviso to Section 4(1) of the Bengal Act and said that it was difficult to imagine how such a provision could attract Article 14 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot come up for construction in Misrilal's case. All that these observations mean is that all cases involving a question as to the constitutionality of a law should not even at the final stage be heard by a Bench of seven Judges and, therefore, Article 144A should be suitably amended leaving the Court itself the duty to decide how large a Bench should decide a particular case. It is interesting to notice that Manmal's case (AIR 1977 SC 1772) to which reference has already been made was decided only three days after the decision in Misrilal's case. Fazal Ali, J., is a party to. both the cases. If Misrilal's case had really decided that even a question as to the constitutionality, which is unsubstantial or unarguable, should be heard at the preliminary stage by a Bench of seven Judges, Manmal's case would have been decided differently. From the very fact that a Bench of the Supreme Court three days later in Manmal's case, to which one of the Judges sitting in Misrilal's case was a party, decided otherwise, it follows that Misrilal's case is not an authority for a contrary proposition. It is well settled that a ruling of the Supreme Court is not to be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling in that case which holds the field. 11. The conclusion reached by me is also supported by a ruling of the Allahabad High Court in Chandra Kanta v. State, AIR 1977 All 270 (FB). In that case, a Bench of five Judges of the Allahabad High Court held that Article 228A was not a bar to a Division Bench hearing a writ petition at the admission stage even if the petition raised a point as to the constitutional validity of any State law. The Court observed that the purpose of an admission hearing is to screen cases in order to see whether triable or arguable points arise; and, if a Division Bench is of opinion that the question as to the constitutional validity of the State law has no prima facie substance, it can dismiss the petition. I am in respectful agreement with this view. 12. It was argued at the bar that if a Division Bench rejects a petition by observing that a point as to the constitutional validity of a State law is not reasonably arguable or that it has no substance, it would be determining the question as to the constitutional validity which Clause (3) of Article 228A requires to be determined by a Bench of five Judges. In my opinion, as explained earlier, the Divi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of history that the man of genius and the illustrious men and most of those who were concerned with the Forty-second Amendment were thrown out at the hustings. The party which in its manifesto promised to repeal the Forty-second Amendment was elected with thumping majority. If the philosophy which was advocated by the Government, after the Fundamental rights' case, is to guide me, I must notice the wind of change to help the Government and condemn the Forty-second Amendment as an entirely ill-advised legislation, or at least construe it in such a manner as to make its provisions look ridiculous or absurd. The present situation, which was not envisioned when the above philosophy of the forward looking Judge was advocated demonstrates its utter hollowness. The true principle is that the Court has no reason for existence if it merely represents the pressures of the day . The question as to the utility of the Forty-second Amendment Act and whether the Act as a whole or certain of its provisions should be retained or repealed is one to be considered by the politicians and Parliament and not by the Court Even assuming that certain of the provisions of the Forty-second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter came up before this Bench, a preliminary question was raised whether a Bench of less than five Judges can, at the admission stage, dismiss a petition which raises any question as to the constitutional validity of any State law. 18. Under Clause (1) of Article 228A of the Constitution jurisdiction of the High Court to declare any Central law to be constitutionally invalid has been taken away. Under Clause (2) of that Article, jurisdiction has been retained in the High Court to. determine any question relating to the constitutional validity of any State law. Clause (3) prescribes the minimum number of Judges who shall sit for that purpose. Clause (4) prescribes the minimum majority of two-thirds of the Judges sitting under Clause (3) to declare any State law to be constitutionally invalid. Article 228A reads thus:-- 228-A (1) No High Court shall have jurisdiction to declare any Central law to be constitutionally invalid. (2) Subject to the provisions of Article 131A the High Court may determine all questions relating to the constitutional validity of any State law. (3) The minimum number of Judges who shall sit for the purpose of determining any question as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makes no difference so far as its effect is concerned. It cannot then be said that a case is dismissed at the admission stage without determining the question raised in it. 22. When the Court hears a question, applies its mind to it and holds that it cannot be accepted, it is clearly determination of the question. The term determination may properly, and according to the legal use as well as according to its derivation, signify the coming to an end in any way whatever; end or expiration; more specifically the final result of a proceeding (26-A C. J. Section 885). When a case is dismissed at the admission stage by any Bench of this Court, after considering the question raised, and holding that the contention cannot be accepted, it must be said that the question has been determined conclusively by this Court, with its effective expression of opinion which ends the controversy or the dispute so far as this Court is concerned. 23. It is not the length of the reasons given in the order which will make it determination . For instance, if in a case where both parties have been heard and the Court decides the question in two or three sentences only, it is all the same determinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond party or after hearing both parties, and irrespective of the length of the reasons given by the Bench deciding the question. 26. For the reasons I have stated above, I am unable to agree with the Full Bench of the Allahabad High Court in Chandrakanta v. State, AIR 1977 All 270 (FB). 27. It was then suggested that the word question should be given such interpretation as may allow dismissal at the admission stage and that this can be done if the word question be interpreted, to mean real question or substantial question and not any question of whatever weight or worth. It was suggested that this must necessarily be done; otherwise, there will be a flood of cases in which parties will raise any futile or frivolous question as to the constitutional validity of any State law. It will entail waste of time of the Court because every now and then five Judges will have to assemble. This High Court, so far, has not been confronted with such a situation and there is no reason to look at the Bar with that suspicion. However, I shall deal with the point of administrative inconvenience a little later. I shall understand the word question according to well settled rules of int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as said by Lord Russel of Killowen in Hansraj Gupta v. Dehra Dun Mussorie Electric Tramway Co. Ltd., AIR 1933 PC 63, for others than the Courts to remedy the defect. 30. It is not permissible to add words to a statute. In Shriram Ramnarayan v. State of Bombay, 1959 Supp (1) SCR 489: (AIR 1959 SC 459 at p. 470), Mr. Justice N. H. Bhagwati laid down thus :-- If the language of the enactment is clear and unambiguous, it would not be legitimate for the Courts to add any words thereto and evolve therefrom some sense which may be said to carry out supposed intention of the legislature. The intention of the legislature is to be gathered only from the words used by it and no such liberties can be taken by the Court for effectuating a supposed intention of the legislature. There is no warrant at all, in our opinion, for adding these words in the plain terms of Article 31A(1)(a) and the words 'extinguishment or modification of any such rights' must be understood in their plain, grammatical sense without any limitation of the type suggested by the petitioners. That case was decided by a Bench of five Judges, presided over by S. E. Das, C. J. On that high authority and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king punishable such subordinates also who have no connection with the functions with which the business or transaction is concerned. To limit the meaning of subordinate in the section by adding the words would be defeating that legislative intention and laying down a different legislative policy. This the Court has no power to do. The argument that 'subordinate' means something more than 'administratively subordinate' must, therefore, be rejected. 34. In S. T. Commr., U.P. v. Parson Tools and Plants, Kanpur, (1975) 3 SCR 743: (AIR 1975 SC 1039), their Lordships said (at pp. 1043 1044 of AIR): If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it under the guise of interpretation by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so, would be entrenching upon the preserves of the Legislature, the primary function of a Court of law being jus dicere et no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such meaning is clear on the face of the statute or the rules. In Martin Burn Co. Ltd. v. Calcutta Corporation, (1966) 1 SCR 543: AIR 1966 SC 529, the Supreme Court said :-- The result flowing from a statutory provision is never an evil. A Court has no power to, ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not. In the celebrated case of Bengal Immunity Co. v. State of Bihar, (1955) 2 SCR 603: AIR 1955 SC 661 at p. 685, their Lordships laid down thus:-- Why should the Court be called upon to discard the cardinal rule of interpretation for mitigating a hardship which after all may be entirely fanciful, when the Constitution itself has expressly provided for another authority more competent to evaluate the correct position to do the needful? 37. In State of M. P. v. Vishnu Prasad Sharma, AIR 1966 SC 1593, the Supreme Court said that the supposed difficulty would not provide any justification for accepting an interpretation against an ordinary meaning of the language used in it. In Bhikraj v. Union of India, (1962) 2 SCR 880 : (AIR 1962 SC 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a larger Bench, are freely referred to the Chief Justice for constituting larger Benches. If it had been left to me to draft Article 228A, in all probability, I would not have enacted Clause (3), particularly when any error committed by the High Court can be corrected by the Supreme Court If the High Court erroneously strikes down a provision as to constitutional validity, it can be corrected by the Supreme Court. Even Clause (4) of Article 228A does not confer an absolute finality to the decision of two-thirds majority, although the Bench may be of 5 Judges or 7 Judges. Now, two questions arise : (1) Whether it is given to the Court to rewrite the law by substituting its own wisdom for that which is expressed by Parliament in the words used by it. (2) Whether in the garb of interpretation, we should assume a different intention than what is expressed by the words used in the Constitution and then recast the provision in such a way as to give effect to such supposed intention. In our opinion, neither course is permissible. As regards the first, legislation is not the function of the Court The Court cannot arrogate to itself the function of Parliament. Aristotle was perhaps the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Article so as to give it any effect other than the one conveyed by the plain words. 45. In Misrilal Jain v. State of Orissa, AIR 1977 SC 1686, Mr. Justice Chandrachud, made the following observations (at p. 1690):-- We may take this opportunity to dwell upon the inconvenience resulting from the enactment of Article 144A which was introduced by the 42nd Amendment to. the Constitution. That Article reads thus: 144A. Special provisions as to disposal of questions relating to constitutional validity of laws:-- (1) The minium number of Judges of the Supreme Court who shall sit for the purposes of determining any question as to the constitutional validity of any Central law or State law shall be seven. (2) A Central law or a State law shall not be declared to be constitutionally invalid by the Supreme Court unless a majority of not less than two thirds of the Judges sitting for the purposes of determining the question as to the constitutional validity of such law hold it to be constitutionally invalid. The points raised in these appeals undoubtedly involve the determination of questions as to the constitutional validity of a State law but they are so utterly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional importance have already been covered by the rulings of this Court so that he who runs and reads may resolve them. To require seven Judges to perform such jobs is surely supererogatory. The present appeal itself is a striking illustration. Where really important issues arise for consideration, any Bench of this Court would certainly refer, where necessary, such matters for consideration or reconsideration by a larger Bench -- less or more than seven, according to the requirement of the situation. To prescribe arithmetically is to, petrify unimaginatively. We do not say anything about the validity of Article 144A one way or the other but merely highlight the paralysing impact on the highest Court and the long-term cause of justice, flowing from the numerical rigidity newly inserted by the Forty Second Constitution Amendment Act. We hope and trust that this matter will receive urgent attention of Parliament. Both their Lordships in the two cases merely expressed the hope and trust that the matter would receive urgent attention of Parliament. Learned Advocate General (whom we requested to appear as amicus curiae) emphasised that that is the correct path. If their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions made by their Lordships in para 14 are as below:-- There is some misconception both in the judgment of the High Court as well as in the submission made by counsel on this point. In view of the decision in Venkataraman's case, AIR 1958 SC 107, there is no warrant for including in one Category public servants in office and public servants who have ceased to be so. These two classes of public servants are not similarly situated as has been clearly pointed out in Bansi's case, AIR 1971 SC 786. The plea of applicability of Article 14 on the basis of the judgment in Venkataraman's case (supra) is, therefore, wholly misconceived. It cannot be argued that the decision in Venkataraman's case (supra) is violative of Article 14 of the Constitution. That decision only says that section 6 of the Act is not applicable to a public servant if at the time of taking cognizance by the Court he ceases to be so. Because a particular section is not applicable to a public servant after the has ceased to be in office, the question of the Act being violative of Article 14 of the Constitution will not arise. This Court has clearly placed a public servant, who has ceased to be in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not applicable, there will be no occasion for determining the question raised. Similarly, if on the facts and in the circumstances of the case the Bench is of the opinion that the petitioner is not entitled to the relief claimed on the ground of delay, laches or suppresssion of facts, etc. it will not be necessary to determine any question, though the same might be not only relevant but also of sufficient weight and worth, (ii) Then, again, when a question as to the constitutional validity of a State law is raised before a High Court, which has already been determined by the Supreme Court, it must be said that there is no question for determination by the High Court so that it need not go before a Bench of five Judges, (iii) Similarly, when a question relating to the constitutional validity of a State law has already been determined by a Bench of at least five Judges of the High Court, such question can be rejected by a Division Bench at the admission stage, because it does not remain to be determined. However, if, in the opinion of the Division Bench the question requires reconsideration by a larger Bench, it can make a reference under the Rules of the High Court. But that situati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does the length of reasons given for rejecting the contention matter. (2) The duty of the Court is to interpret the law as it is and not to arrogate to itself the functions of the legislature and to rewrite the law in the garb of interpretation. (3) The expression any question as employed in Clause (3) of Article 228A is comprehensive enough to include any question which, in the opinion of the Court, may not be substantial. A question does not cease to be a question because it is not of any weight or worth. The word any is significant. When Parliament did not qualify the word question by any word such as substantial , it is not given to the Courts to add words and thus rewrite the law in the guise of interpretation. The law has to be interpreted according to the intention of them who made it. The words are the authentic repository of their intention. It is not permissible to imagine a supposed or secret intention and then to add words to the provision so as to express such supposed or secret intention. (4) The requirement of the law has to be complied with. It cannot be circumvented because, in the opinion of the Court, it will cause administrative inconvenience. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and all sorts of constitutional questions, no matter what their weight or worth. Similarly, in Trustees for the Improvement of Calcutta v. C. S. Mallick (supra) a Bench of 7 Judges observed that despite the question of constitutional validity having already been covered by the rulings of the Supreme Court and the fact that one who runs and read the said decisions may resolve them the provisions of the amended Constitution require 7 Judges to perform such job. Therefore, the view that I take finds support in those observations. 56. Therefore, I would answer the preliminary question thus :-- (1) A writ petition must, in the first instance, be placed before a Division Bench for admission, although a question of constitutional validity of a State law has been raised in it. A Division Bench is competent to admit it and also to grant interim relief, such as, stay, injunction, etc. (2) A Bench of less than five Judges cannot dismiss a petition even at the admission stage where any question as to constitutional validity of a State law is to be determined, except in the following cases:-- (i) when the question is irrelevant and, therefore, does not arise for determination. (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at if a point as to the constitutional validity of a State law is already concluded by a decision of the Supreme Court, no question at all arises requiring determination. Hon. the Chief Justice is also of the same view, but Hon. Singh J. has further observed that similar will be the position where any such question has been decided by an authoritative decision of the High Court also. In my opinion, the modification suggested by the Hon. the Chief Justice in this respect is necessary, Hon. the Chief Justice has opined that decision of a Bench of 5 Judges or more of the High Court may alone be taken as to have concluded the matter unless the Division Bench before whom a petition has been laid for hearing is of the opinion that such decision needs reconsideration by a larger Bench. This view find support from the observations made by the Supreme Court in Trustees for the Improvement of Calcutta v. C. S. Mallick (AIR 1977 SC 2034) (supra), where the Bench of 7 Judges had observed that due to the requirement of Article 144A (which are undisputedly in pari materia with the Article 228A), many questions of constitutional importance, which have already been covered by the rulings of the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.L. Malik, J. 65. I have had the advantage of reading the draft Judgments prepared by the Hon'ble the Chief Justice, Hon'ble Justice G. P. Singh and Hon'ble Justice Bajpai. I am disposed to take a somewhat different view. The controversy raised had, in my view, a better solution in referring the matter to the Rules Making Committee to frame Rules in consonance with Article 228A of the Constitution instead of setting down a practice by judicial pronouncement. We are guided at present by the Rules framed under Art 225 In the matter of proceedings under Article 226 of the Constitution. The Rules were framed when Article 228A was not in the Constitution and a question of constitutionality of a Statute could be resolved by a Bench of two Judges. Article 228A now gives a special provision for disposal of questions relating to constitutional validity of the State laws. The High Court exercises jurisdiction under Sub-clause (2) to determine all questions relating to the constitutional validity of any State law. Sub-clause (3) provides for minimum number of Judges who shall sit for the purpose of determining any question as to the constitutional validity of any State law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. A party had a right to come straight to the High Court challenging the validity of a State law and demanding determination of all questions raised by him by a Bench of not less than five Judges. 67. It may be noticed that Article 228A as it is worded, is not merely procedural. It gives an authority to the High Court under Sub-clause (2) to determine all questions relating to constitutional validity of any State law prescribes a forum in Sub-clause (3) and lays down restrictions by Sub-clause (4) of numerical majority by which alone the State law could be declared invalid. Sub-clause (5) gives the provision an overriding effect. The provision is self-contained and mandatory, and has got to be strictly followed. In my view, therefore, whenever any question relating to constitutional validity of State law arises, the matter must go to a Bench of not less than five Judges. 68. The word 'any' in Sub-clause (3) qualifying the word 'question' is significant. It has to be understood in its plain dictionary meaning. 'Any' means no matter which of whatever kind and all and every . Their Lordships of the Supreme Court have in Misrilal Jain's case (M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this report). The practice would not be violative of Article 228A of the Constitution. K.K. Dube, J. 74. Under Article 228A of the Constitution, the question of validity of a provision of State law could only be decided, as far as this High Court is concerned, by a Bench consisting of not less than five Judges. While sitting in motion hearing the Bench not only sits to consider but also decides the matter before it. There does not appear to be a difference as to the character of jurisdiction while it is sitting to decide a question after notice or when it makes a preliminary hearing at the motion stage. The jurisdiction exercised by the motion Bench is not analogous to one exercisable as in references. The latter jurisdiction to refer is expressly a creature of the Statute under certain circumstances. It is true that the Bench hearing the matter has an inherent jurisdiction to refer any question to a larger Bench under certain circumstances. But such inherent powers are used in special circumstances could not provide a basis for laying down a practice. When the Parliament by amending Article 228 required a minimum of Judges to consider and decide the constitutional validi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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