Introduction: CJI indicates that CAA issue may be eventually referred to Constitution Bench
Recently an act passed by the Indian Parliament (Citizenship Amendment act, 2019) and according to that act, members of Hindu, Parsi, Sikhs, Buddhists Communities who have come from Pakistan, Bangladesh, Afghanistan till 31st December 2014 and they faced religion prosecution in their country so, they will not be treated as illegal immigrants but they will get the Indian Citizenship.
But there are so many people in the country who are opposing this act because of various reasons and one of the main reason they are opposing this act is because they believe that this act is against the Article 14 of Constitution- Right to Equality (Fundamental Rights). After these violent and consistent protest in the country approx. 140 petitions filed in Supreme Court a bench headed by Chief Justice of India(CJI) is hearing pleas challenging the validity of CAA, 2019 and while hearing these petitions the Supreme Court hinted that it may refer the matter to a Constitution Bench.
What is Constitution Bench?
Constitution Bench is the bench of the Supreme Court of India which is having five or more judges on it. And this bench is basically setup to decide substantial question of law with regard to the interpretation of the constitution in the case. According to the Article 145(3) in The Constitution Of India 1949
“ 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”. Article 143 deals with the power of the president of India to consult the supreme court.
According to Supreme Court’s handbook on procedure the chief justice has the authority to form the constitution bench on time to time and the bench must of five or more judges.
It also says: “Every petition calling in question the election of the President and Vice-President under Article 71 of the Constitution read with Part III of the Presidential and Vice-Presidential Elections Act, 1952, shall be posted before a Bench of five Judges under Order XLVI of the Rules.”
Constitution Bench normally have five judges, but it can be larger than that and in some cases there have been benches with seven, nine and thirteen judges.
Difference between Division Bench and Constitution Bench
As it can be understood by the name Division bench is a bench of two judges whether it is High Court or Supreme Court and there is no specific provision regarding the division bench in constitution.
The Constitution bench is a term given to a bench of minimum five judges And this bench is basically setup to decide substantial question of law with regard to the interpretation of the constitution in the case.
Constitutional provision for it
As mentioned above that according to the Article 145(3) in The Constitution Of India 1949. 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.
Article 143 in The Constitution Of India 1949
Article 143– Power of President to consult Supreme Court ( 1 ) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.The President may, notwithstanding anything in the proviso to Article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.
And according to the Supreme Court’s Handbook on procedure the chief justice of India has the authority to form the Constitution Bench on time to time and the bench must of five or more judges.
Which type of cases are referred to it
The Cases which are referred to the Constitution Bench are those which has substantial question of law it is the need of the time to have a larger bench which can decide major cases particularly those cases which has a direct bearing on individuals. The poly-vocal character of the Indian courts creates ambiguity and result in a periodic requirement for review.
The idea behind the constitution bench is very clear that it is constituted in rare cases to decide important questions of fact or legal and constitutional interpretation.
For example cases like:
- State of U.P. vs jai bir singh(2017)
- AK gopalan vs State of Madras
- Keshwanand bharti vs State of Kerala
- Ayodhya land dispute
- Sabrimala temple review
Some recent cases are:
- Krishna kumar singh vs State of Bihar(2017)
- Jarnail singh vs Lachhmi narayan(2018)
- State(NCT of Delhi) vs Union of India(2018)
- Kalpana mehta vs Union of India(2018)
- CCE vs. Gramin Industries LTD(2018)
- Public intrest foundation vs Union of India(2019)
- T.N. medical officer assn. Vs Union of India(2018)
- Navtej singh johar vs Union of India(2018)
The constitution bench can only be formed in certain situations like when the case involves a substantial question of law pertaining to the interpretation of the constitution or when the president has sought the SC opinion on a question of fact or law under article 143 of the constitution or when 2-3 judges benches of Supreme Court have delivered conflicting judgement on the same point of law so this becomes necessary to give a definite interpretation of the law by a larger bench. And this is duty of the CJI to maintain the constitution bench and form the Constitution bench on time to time so that the conflicted decisions can be interpreted in a exact and right manner.