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TMI Blog1977 (11) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... this order. 2. Under the rules of the High Court made 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the petition at the admission 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, embraces a wider enquiry than what is contemplated by the word "consider" which connotes a 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e context of Article 228A the word "question" can only mean a real question. If the point as to the constitutional validity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y real question or any arguable question to avoid the ridiculous result and practical inconvenience which would flow from holding that the expression is wide enough to include even questions which 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 Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to decide all sorts of constitutional questions, no matter what their weight or worth". In my opinion these observations do not form part of the ratio decidendi of the case. Article 144A did not 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 Misrila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, cannot be taken to be decisive of the interpretation of Article 144A. As earlier pointed out, the question as to construction of Article 144A directly arose in Manmal's case and it is the ruling 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debate." In an, article written by a High Court Judge the principle of plurality and the requirement of two-thirds majority enacted in Article 228A were commended as "just and proper". It is now a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before a Division Bench for admission, it directed that it be placed before a Bench of five Judges because a question of constitutional validity of Section 19-C (2) of the M. P. Co-operative Societies Act, 1960, has to be determined. 17. When the matter 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 cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion stage has the same force and effect as dismissal after hearing parties. In either case, it is binding on the parties. It operates as res judicata. Thus, the dismissal of a petition or an appeal or revision at the admission stage or after hearing parties 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t which the question is determined. If it satisfies the test laid down in Jaswant Sugar Mills' case (AIR 1963 SC 677) (supra), it is determination. That test is satisfied when, in any proceeding, be it a petition or an appeal or a revision, the question is decided whether before notice is issued to the second 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 eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t competent to any Court to proceed upon the assumption that the Legislature has made a mistake. The Court must proceed on the footing that the Legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature, the Court cannot, as pointed out in Crawford v. Spooner, (1846) 6 Moo Ind App 1 (PC), aid the Legislature's defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is casus omissus, it is, 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 use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant statutes. If these do not give any such powers as the respondent claims, the difficulty can only be remedied by a change in the law." 33. In R. G. Jacob v. Republic of India, AIR 1963 SC 550, it was urged that the word "subordinate" in section 165 of the Penal Code be read as subordinate in respect of those very official functions with which the business of transaction has connection. Their Lordships said:-- "By the use of the word "subordinate" without any qualifying words, the legislature has expressed its legislative intention of making 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1296, their Lordships said:-- "Unless the words are unmeaning or absurd, it would not be in accord with any sound principle of construction to refuse to give effect to the provisions of a statute on the very elusive ground that to give them their ordinary meaning leads to consequences which are not in accord with the notions of propriety or justice entertained by the Court." In a still earlier case, Commr. of Agricultural Tax v. Keshab Chandra, (1950) 1 SCR 435: AIR 1950 SC 265, it was held that hardship or inconvenience cannot alter the meaning of the language employed by the legislature, if 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s language of that provision or to infer by necessary implication, that it conies into play only after a case is admitted but not at the admission stage, so as to make it permissible that a Bench of less than five Judges can determine the question of constitutional validity and dismiss a petition in limine. 40. It is quite true that the provisions contained in Article 228A(3) give rise to unnecessary waste of time. In this High Court, all these years, Benches of two. Judges only have been hearing and determining questions of constitutional validity. Questions, which, in the opinion of a Division Bench, need to. be determined by 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 Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... couple of minutes. There is no evidence before us that the Members of the M. P. Bar would be so unreasonable as to raise such question and thereby make themselves a laughing stock. 43. Nor is the rule of absurdity attracted. Administrative inconvenience is not the same as absurdity. 44. In two recent decisions of the Supreme Court, their Lordships have expressed themselves very strongly against the corresponding provisions contained in Article 144A of the Constitution and have pointed out the inconvenience entailed and the unreasonableness of those provisions. But, it must be seen that their Lordships did not strike down the provisions as absurd, nor did they add any words to, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrears of pending cases. Both bear upon the credibility of the judicial system. But because of Article 144A brought in by the Forty Second Amendment Act, seven Judges of this Court have to sit and hear every case where the constitutionality of an Act, rule, by-law or even a small notification is challenged. Procedural pragmatism in the light of actual experience of the working of this Court will easily convince anyone that in the context of the current docket explosion and long pendency of cases, the insistence on this inconvenient plurality which requires more than half the full strength of the Court to sit to hear such cases, is decisive step in the negative direction. Many questions of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Supreme Court was about the applicability of Article 14, on the basis of the judgment in Venkataraman's case AIR 1958 SC 107. The Supreme Court rejected the contention that the appeal should be heard by a minimum number of 7 Judges of the Supreme Court as contemplated by Article 144A of the Constitution of India, by observing that since the particular section of the Act was not applicable to the public servant, after he had ceased to be in office, the question of the Act being violative of Article 14 of the Constitution did not arise at all, and, therefore, it was held that there was no substance in the contention that the said appeal should be referred to a larger Bench of 7 Judges. The observations 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 Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Justice Murtaza Fazal Ali was a party to all the three decisions. Clearly, the view that we take finds full support in the observations in Misrilal's case and Trustee's case. 51. Article 228A(3) is a jurisdictional provision. It has to be interpreted as it is; otherwise, the Court by the process of interpretation would confer jurisdiction to a smaller Bench, what Parliament, in its wisdom, wanted to be done by a larger Bench. 51A. However, there is no difficulty in saying at once that (i) if a question is irrelevant, it is not a question which arises for determination. For instance, if in a given case, constitutional validity of any Act is challenged, but on the facts and circumstances of the said case, the Act concerned is itself 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, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, J. I refrain from entering into political considerations because they do not afford either internal aid or external aid to interpretation of a statute. 55. The above discussion may be summed up thus :-- (1) Not to accept a question as to the constitutional invalidity of a State law and to dismiss a petition even at the admission stage amounts to "determination" of that question within the meaning of Article 228A of the Constitution. The word "determine" in Clause (3) of Article 228A of the Constitution must be read in its usual connotation, which means an application of the mind and expression of the conclusion. It makes no difference whether the question is determined at the stage of admission or after hearing the parties, nor 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 substant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Court to arrogate to itself the role of Parliament. Confronted with such inconvenience, their Lordships of the Supreme Court have in Misrilal v. State of Orissa, AIR 1977 SC 1686, and again in Trustees for the Improvement of Calcutta v. C. S. Mallick, (1977) 3 SCC 448 : (AIR 1977 SC 2034), made observations inviting the attention of Parliament to the administrative inconvenience and emphasised the need for early change in the law. But, their Lordships did not themselves rewrite the law. What the Supreme Court could not do, the High Court certainly cannot. (9) In the above decisions of the Supreme Court, there are clear observations that a Bench of prescribed number of Judges has to sit for determination of "questions utterly devoid of substance"; "any and every question as to the constitutional validity"; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in the aforesaid two cases, decided subsequently in May 1977, it is not possible to agree with the view expressed by the Full Bench of the Allahabad High Court in Chandrakant's case (AIR 1977 All 270) (FB) (supra), decided earlier in March 1977. 61. There is no difference of opinion in between Hon. Singh J. and Hon. the Chief Justice on the point that when the question of constitutional validity of a State law is irrelevant and accordingly does not necessarily arise for determination, or the point involved has been already concluded by a decision of the Supreme Court, there is no question which requires determination by the High Court and such contentions when raised can be dismissed even by a Division Bench or any Bench of less than 5 Judges. 62. In para 4 of his opinion, Hon. brother Singh J. has observed that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 office in a separate category and that classification has held the field all these years without demur. There is. therefore, no substance in the contention that this appeal should be referred to a larger Bench." (Underlining is mine). Actually speaking, the contention claiming reference of the case to a Bench of 7 Judges in accordance with Article 144A of the Constitution was rejected by their Lordships of the Supreme Court on the aforesaid ground itself. 64. I am, therefore, of the view that the question referred to this Bench may be answered as suggested by Hon. the Chief Justice in paragraph 42 (paragraph 56 of this report) of his opinion. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what if the counsel were to argue that the other three Judges would probably have agreed with him though the two hearing at motion stage were not inclined to agree. He would say that the opinion of the two Judges is not binding on him and will not assume finality when the law says that the matter must be heard by five Judges. His argument would be that the mandatory requirement of Article 228A could not be whittled down by Rules of administrative convenience. That provision had been given an overriding effect in Sub-clause (5) and the Rules of business formulated to regulate the sittings of the Court could not control that provision. If screening were to be permitted, would that not be introducing a provision of Reference as in the Income-tax Act or in the Sales Tax Act ? That was not what Article 228A contemplated. 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 question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s wholly irrelevant and the question of the Act being violative of Article 14 did not arise. That aside, the opinion expressed by a larger Bench and that too on a later date had to be preferred. (See: The State of U.P. v. Ram Chandra Trivedi, AIR 1976 SC 2547 (para. 22)). 72. For what I have said above, I am of the opinion that a writ petition involving any question of constitutional validity of the State law must go before a Bench of not less than five Judges even at the admission stage since denial of admission on that question would be a "determination" of the question. It is settled practice, nay a requirement of law, that it is that Court alone, which can finally decide a matter on merits which can dismiss it in motion. 73. However, having regard to the administrative convenience, I would concur with what my Lord the Chief Justice said in para. 42 (para. 56 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 Jud ..... 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