The Crucible of Constitutional Interpretation: 5-Judge and 9-Judge Benches

Most cases in the Supreme Court are heard by Benches of two or three Judges. Article 145(3) requires a Bench of at least five Judges, commonly called a Constitution Bench, to decide any case involving a substantial question of law as to the interpretation of the Constitution, and to hear any reference by the President under Article 143. Its proviso deals with a smaller Bench that finds such a question arising in an appeal before it: the Bench refers the question to a Bench of five Judges and then disposes of the appeal in conformity with the opinion given.

Larger Benches of seven, nine, eleven or thirteen Judges are constituted when an earlier decision of a Constitution Bench needs to be reconsidered. The discipline governing such references was restated in Central Board of Dawoodi Bohra Community v. State of Maharashtra: the law declared by a Bench of larger strength binds Benches of lesser or equal strength; a Bench of lesser strength cannot disagree with a larger Bench, and can only request the Chief Justice to place the matter before a larger Bench; a Bench of equal strength that doubts an earlier decision may say so and refer the question to a larger Bench; and the Chief Justice, as master of the roster, may direct any matter to be heard by a Bench of any strength.

In practice, therefore, a constitutional question usually reaches a Constitution Bench through a reference order. A two-judge or three-judge Bench hearing a writ petition, an appeal or a transfer case frames the question, explains why an authoritative decision is needed, and directs the papers to be placed before the Chief Justice. How that question is framed often shapes the eventual hearing, so the stage of the reference is an important one for the parties.

The best-known body of constitutional law made by large Benches concerns Parliament's power to amend the Constitution. In I.C. Golak Nath v. State of Punjab, an eleven-judge Bench held by a narrow majority that Parliament could not amend the Constitution so as to take away or abridge the fundamental rights, though it applied that ruling only prospectively. Parliament responded with the Twenty-fourth Amendment, and the question returned to a Bench of thirteen Judges in Kesavananda Bharati v. State of Kerala, which overruled Golak Nath on the extent of the amending power but held that the power under Article 368 does not extend to altering the basic structure or framework of the Constitution.

The doctrine was applied to strike down parts of the Forty-second Amendment in Minerva Mills Ltd. v. Union of India. The Court invalidated the clauses added to Article 368 that sought to place amendments beyond judicial review and to declare the amending power unlimited, holding that a limited amending power is itself a basic feature. It also struck down the extension of Article 31C that would have given all the Directive Principles primacy over Articles 14 and 19, emphasising that the balance between Parts III and IV is part of the basic structure.

In I.R. Coelho v. State of Tamil Nadu, a nine-judge Bench held that laws placed in the Ninth Schedule after 24 April 1973, the date of the Kesavananda decision, are open to challenge if they damage or destroy the basic structure as reflected in Article 21 read with Articles 14 and 19 and the principles underlying them. The basic structure doctrine is principally a limit on constitutional amendments; ordinary laws are tested against the fundamental rights and the limits of legislative competence.

In S.R. Bommai v. Union of India, a nine-judge Bench held that a proclamation under Article 356 imposing President's Rule on a State is open to judicial review. The President's satisfaction must rest on relevant material; the strength of a Government in the Assembly is to be tested on the floor of the House rather than by the Governor's assessment; and the Assembly should not be dissolved before both Houses of Parliament have approved the proclamation, so that the Court can, if the proclamation is invalid, restore the dismissed Government. Several opinions also described secularism and federalism as basic features of the Constitution.

The decision changed the practice of Article 356, which had frequently been used to dismiss State Governments, and it remains the starting point for any challenge to the dismissal of a State Government or the dissolution of an Assembly.

Article 131 gives the Supreme Court exclusive original jurisdiction in disputes between the Government of India and one or more States, between the Government of India and any State or States on one side and one or more other States on the other, and between two or more States, in so far as the dispute involves a question, of law or fact, on which the existence or extent of a legal right depends. The proviso excludes disputes arising out of pre-Constitution treaties and similar instruments, and Article 262 permits Parliament to exclude inter-State river water disputes, which it has done.

The parties must be governments. In State of Bihar v. Union of India, a suit by Bihar that also impleaded a public sector company was held not to lie under Article 131, because the Article does not extend to disputes in which a private party or a corporation is joined. The 'legal right' requirement, on the other hand, has been read broadly. In State of Karnataka v. Union of India, the Court held maintainable a suit by Karnataka challenging the Union's appointment of a Commission of Inquiry into allegations against its Chief Minister and Ministers, though it upheld the Union's notification on the merits. Suits filed by several States in 1977 against the Union's proposal to dissolve their Legislative Assemblies were dismissed in State of Rajasthan v. Union of India.

Article 131 continues to be used in contemporary federal disputes. In State of West Bengal v. Union of India, the Court rejected the Union's preliminary objections to a suit by West Bengal complaining that the Central Bureau of Investigation continued to register cases in the State after the State had withdrawn its general consent under the Delhi Special Police Establishment Act, 1946, and directed that the suit proceed on the merits. Whether the validity of a statute can be challenged in such a suit has been referred to a larger Bench: in State of Jharkhand v. State of Bihar, a two-judge Bench doubted an earlier ruling that it cannot. The procedure for such suits is explained in the guide to filing an original suit under Article 131.

Under Article 143(1), the President may refer to the Supreme Court a question of law or fact of public importance that has arisen or is likely to arise, and the Court 'may', after such hearing as it thinks fit, report its opinion. The word 'may' gives the Court a discretion to decline to answer a reference that is vague, purely political, or otherwise unsuitable, as it explained in In Re: The Special Courts Bill, 1978, where a seven-judge Bench nonetheless examined and largely upheld the validity of a Bill providing for special courts to try offences said to have been committed during the Emergency. Under Article 143(2), which concerns disputes excluded from Article 131 by its proviso, the Court 'shall' report its opinion.

An advisory opinion is not a judgment between parties, and whether it binds courts in the same way as a decision under Article 141 has been debated. In practice, opinions under Article 143 carry great weight and are followed. In Natural Resources Allocation, In Re: Special Reference No. 1 of 2012, a Constitution Bench answered a reference arising from the 2G spectrum judgment by advising that auction is not a constitutional requirement for the disposal of every natural resource, while leaving the earlier judgment undisturbed.

Recent years have seen a series of larger Benches reconsidering settled decisions. In Sita Soren v. Union of India, seven Judges unanimously overruled the 1998 decision in P.V. Narasimha Rao and held that parliamentary privilege under Articles 105 and 194 does not protect a legislator who takes a bribe in connection with a vote or speech. In State of Punjab v. Davinder Singh, seven Judges held by majority that States may sub-classify the Scheduled Castes for the purpose of reservation, overruling E.V. Chinnaiah. In Property Owners Association v. State of Maharashtra, a nine-judge Bench held by majority that not every privately owned resource is a 'material resource of the community' under Article 39(b).

Constitution Benches have also settled questions outside constitutional law in the narrow sense, as in the seven-judge decision on stamping of arbitration agreements in In Re: Interplay between Arbitration Agreements under the Arbitration and Conciliation Act, 1996 and the Indian Stamp Act, 1899, and have decided challenges with wide public consequences, as in Association for Democratic Reforms v. Union of India. A practitioner advising on any settled question therefore needs to know not only the leading decision but also whether a reference questioning it is pending.

Because Constitution Bench matters often involve many connected petitions and interveners, the Court now commonly issues case-management directions before the hearing: the questions are settled, nodal counsel are appointed for each side to prepare common compilations of pleadings, statutes and authorities, written submissions are filed within page limits, and time is allotted for oral arguments. Interveners are usually heard only if they bring a distinct perspective.

Preparation is correspondingly broad. Submissions draw on the text and structure of the Constitution, the Constituent Assembly Debates, the history of the provision and its amendments, the Court's earlier decisions, and comparative constitutional law. Since the decision binds all courts under Article 141 and may remain the law for decades, the written submissions frequently shape the eventual judgment as much as the oral hearing does.