Rao Shiva Bahadur Singh vs The State Of Vindhya Pradesh And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Petition No. 40 of 1955

Decision Date: 5 April 1955

Coram: Vivian Bose, Bhuvneshwar P. Sinha, Syed Jaffer Imam

Rao Shiva Bahadur Singh appealed against the State of Vindhya Pradesh and another, and the matter was heard on 5 April 1955 before the Supreme Court of India. The judgment was delivered on the same date. The case was assigned to a Constitution Bench headed by Chief Justice Bijan Krishnan Mukherjee, with Justice Das, Justice Sudhi Ranjan Bose, Justice Vivian Bose, Justice Bhuvneshwar P. Sinha, Justice Bhuvneshwar P. Imam and Justice Syed Jaffer Imam forming the bench. The dispute was cited as 1955 AIR 446 and 1955 SCR (2) 206. The central question involved the construction of Article 145(3) of the Constitution of India and whether the Supreme Court was competent to divide a case for the purposes of hearing and deciding it.

The headnote recorded that, speaking for the majority of the bench including Chief Justice Mukherjee, Justice Das, Justice Vivian Bose and Justice Imam, the Court held that a Constitution Bench consisting of five or more judges, even when a case was initially posted before it, could split the case by deciding the constitutional questions and then refer the remaining non-constitutional matters to a Division Bench of fewer than five judges for disposal on the merits, provided the Division Bench acted in accordance with the opinion of the Constitution Bench. The Court emphasised that such a division of the proceedings into separate stages did not conflict with the Constitution or the general principles of procedural law. The essential constitutional principle, according to the majority, required that all questions pertaining to the Constitution be heard by a bench of at least five judges, and once that requirement was satisfied there was no constitutional impediment to allowing a smaller bench to adjudicate the rest of the case, thereby conserving the time of the larger bench. The majority pointed to the absence of any general rule of indivisibility of a case for hearing and decision, referring to the proviso to Article 145(3), Article 228 of the Constitution, Section 24 of the Code of Civil Procedure, Order 18 Rule 15 of the same code, and Sections 350, 526, 528 and 556 of the Code of Criminal Procedure. The Court concluded that Article 145(3) could not be interpreted so as to strip the Supreme Court of its inherent power to split a case for the purpose of hearing and decision. Justice Sinha, however, dissented. He observed that while Article 145(3) contemplated the whole matter in controversy, which could include substantial questions of constitutional interpretation as well as other issues, the main clause, except for cases falling within the scope of the proviso, did not envisage dividing a case into a part involving constitutional questions and another part that did not. He further stated that the wording of clause (3) of Article 145 did not justify hearing a case piece-by-piece before different benches unless the situation fell within the specific ambit of the proviso.

The Court explained that the proviso to clause (3) of Article 145 applies only to a narrow category of matters that would otherwise fall within the main provision. The language of the proviso limits its effect to situations where a specific question, rather than an entire case, must be referred to a larger Bench for its opinion, while the remainder of the case stays with the smaller Bench. Consequently, the proviso creates a clear distinction between a “case” and a “question.” The Court referred to the authorities Maulvi Muhammad Abdul Majid v. Muhammad Abdul Aziz (L.R. 24 I.A. 22), Burrowes v. High Commission Court (3 Bulst. 48) and Habibar Rahman v. Saidannessa Bibi (I.L.R. 51 Cal. 331) in support of this interpretation. The judgment concerned an original jurisdiction petition, numbered 40 of 1955, filed under Article 32 of the Constitution for a writ of habeas corpus. Counsel for the petitioner, led by Purshottam Trikumdas and assisted by other junior counsel, represented the petitioner. Counsel for the respondents, including the Attorney-General for India and the Solicitor-General for India with their junior counsel, represented the State. The judgment was delivered by Justice Das, with Justice Sinha providing a separate opinion, and the bench also included the Chief Justice Mukherjea and Justices Vivian Bose and Imam.

This petition sought a writ of habeas corpus directing the respondents to show cause why the petitioner, who was then detained in the Central Jail at Rewa, should not be released. The petitioner asserted that his detention was not in accordance with the procedure established by law. After a rule nisi was issued, the respondents filed an affidavit in response to the writ. The principal issue for determination was whether the respondents’ return satisfied the legal requirements. The factual background was concise. In 1948 and 1949 the petitioner held the office of Minister of Industries in the Government of Vindhya Pradesh, which at that time was an acceding State under section 6 of the Government of India Act, 1935, as amended in 1947. On 11 April 1949 he was arrested in Delhi on the allegation that he had accepted an illegal gratification to favour the Panna Diamond Mining Syndicate in the lease of the diamond mines at Panna. In December 1949 the petitioner and Mohan Lal, who was then the secretary in the Ministry of Industries, were tried before a Special Judge in Rewa, the court having been established under the Vindhya Pradesh Criminal Law Amendments (Special Courts) Ordinance No. V of 1949. They were charged under sections 120-B, 161, 465 and 466 of the Indian Penal Code, as adapted to Vindhya Pradesh by the Indian Penal Code (Application to Vindhya Pradesh) Ordinance No. XLVIII of 1949. The Special Judge delivered a judgment on 26 July 1950, acquitting both accused persons.

The State appealed the Special Judge’s acquittal to the Judicial Commissioner of Vindhya Pradesh. By a judgment dated 10 March 1951 the Judicial Commissioner set aside the acquittal, found both accused guilty, and imposed separate terms of rigorous imprisonment under the various statutory provisions, together with the payment of specified fines. On 12 March 1951, in response to applications by the petitioner and his co-accused, the Judicial Commissioner issued a certificate stating that four questions of law raised in the case and formulated in his order were appropriate for consideration by this Court under article 134 of the Constitution of India. Relying on that certificate, an appeal was filed in this Court and recorded as Criminal Appeal No. 7 of 1951. Because the matter involved a substantial question of law concerning the interpretation of the Constitution, it was, in April 1953, assigned to a Bench of five Judges as required by article 145(3) of the Constitution. For convenience, a Bench of five or more Judges is referred to as the Constitution Bench. The Constitution Bench was asked to examine the validity of the convictions and sentences on the grounds that articles 14 and 20 of the Constitution had been violated, and also to consider whether an appeal lay to the Judicial Commissioner from the Special Judge’s acquittal. On 22 May 1953 the Constitution Bench rejected all of these objections. The judgment concluded with the direction that “the appeal is accordingly directed to be posted for consideration whether it is to be heard on merits,” a step taken because the certificate of fitness covered only the four specified points of law. After the constitutional issues were resolved, the appeal was transferred to a Division Bench of three Judges, which on 20 October 1953 ordered that the appeal be heard on its merits. The appeal was then heard before another three-Judge Division Bench. On 5 March 1954 that Division Bench allowed the appeal of Mohan Lal, acquitted him, dismissed the petitioner’s appeal against his convictions under sections 161, 465 and 466 of the Indian Penal Code as adapted to Vindhya Pradesh, but set aside his conviction under section 120-B. The Court upheld the three-year rigorous imprisonment term but removed the fine imposed. On 18 March 1954 a petition for review was filed on the petitioner’s behalf. That petition sought to challenge both the Constitution Bench’s 22 May 1953 judgment that had rejected the constitutional questions and the Division Bench’s 5 March 1954 judgment that had dismissed the petitioner’s appeal on its merits. On objection

The Registry declined to consider a single application that sought review of two judgments, one of which had been delivered well before the statutory period for filing a review. Consequently, the petitioner filed a second application that specifically requested review of the Constitution Bench judgment and asked that the court condone the delay in its filing. On 5 April 1954, that review application was listed before the same Division Bench that had delivered the merit judgment dated 5 March 1954. The Division Bench examined the points raised for review of the 5 March judgment and concluded on the same day that no valid ground existed to warrant a review. Accordingly, the bench dismissed the petition and issued an order directing the petitioner, who had previously been released on bail, to surrender and serve his sentence. On 12 April 1954, another petition was filed on the petitioner’s behalf, praying that the review matter concerning the Constitution Bench decision of 22 May 1953 be placed before a Constitution Bench for final determination. That application was listed before a Constitution Bench, which on 17 May 1954 refused to entertain it. Meanwhile, in the last week of April 1954, the petitioner surrendered and has since been confined in the Central Jail at Rewa.

The present petition therefore seeks a writ of habeas corpus on the ground that the petitioner is being deprived of his liberty in a manner not authorized by law. In this petition the petitioner again contends that the Court of the Judicial Commissioner of Vindhya Pradesh was not the appropriate forum to hear the appeal against the Special Judge’s judgment. He argues that, consequently, the Judicial Commissioner’s order overturning the acquittal and imposing a term of imprisonment is void and inoperative. Alternatively, the petitioner submits that if the Judicial Commissioner had jurisdiction to hear the Special Judge’s appeal and his order complied with law, the petitioner's appeal to this Court against that judgment should be heard. It further contends that, under article 145(3) of the Constitution, the matter should have been finally disposed of by a Constitution Bench. Regarding the first argument that the Judicial Commissioner lacked competence to entertain the appeal from the Special Judge, the Court notes that this issue has already been fully addressed by the Constitution Bench. Consequently, that point cannot be re-examined. The learned counsel appearing in support of the petition has not pressed the issue of jurisdiction, and the only remaining question before the Court is the alternative plea. That plea depends on a correct interpretation of article 145. Article 145, clause (1), authorises this Court, subject to the provisions of...

Article 145 authorises Parliament, with the President’s approval, to make rules for regulating generally the practice and procedure of the Court, including rules for hearing appeals, for entertaining appeals under sub-clause (c) of clause (1) of article 134, and for establishing the conditions and procedure for reviewing any judgment or order pronounced by the Court. Clause (2) provides that, subject to clause (3), such rules may prescribe the minimum number of judges who are to sit for any purpose and may also define the powers of single judges and of Division Courts. Clause (3) declares that the minimum number of judges required for deciding any case involving a substantial question of law as to the interpretation of the Constitution, or for hearing any reference under article 143, shall be five; however, it further provides that where an appeal under any provision of this Chapter other than article 132 is being heard by fewer than five judges, and during the hearing the Court becomes satisfied that the appeal raises a substantial constitutional question necessary for its disposal, the Court must refer that question for opinion to a Court constituted as required by this clause and, upon receiving the opinion, must dispose of the appeal in conformity with that opinion. The petitioner contended that the determination of whether a particular case involves a substantial question of law as to constitutional interpretation must be made at the moment the case first comes before this Court, and that if it is so classified at that stage, the case becomes irrevocably characterised as a constitutional matter requiring a Constitution Bench of at least five judges. He further argued that once a Constitution Bench assumes jurisdiction and begins hearing the matter, that Bench alone must decide the entire case, including all constitutional and non-constitutional issues that arise. Sri Purshottam Trikumdas, appearing in support of the petition, relied heavily on the language of clause (3) and maintained that “the case” cannot be split, asserting that the clause obliges the whole case to be disposed of by a Constitution Bench. Accordingly, he urged that the Division Bench lacked jurisdiction to entertain the appeal involving a substantial constitutional question, rendering its judgment illegal and void.

In this case, counsel for the petitioner asserted that the judgment delivered by the Division Bench on 5 March 1954 was illegal and void because it dealt with a substantial question of law concerning the interpretation of the Constitution. He contended that, in legal terms, the petitioner’s appeal had never been properly disposed of. Since the petitioner had been released on bail pending the disposal of the appeal, his subsequent detention pursuant to the Division Bench’s judgment, which the petitioner described as a nullity, amounted to a deprivation of personal liberty without the procedure established by law, thereby violating the fundamental right guaranteed by article 21 of the Constitution. At first glance the argument appeared plausible. However, after a careful examination of the relevant constitutional provisions and the general principles that govern the procedural powers of the courts, the Court found the argument unsound and lacking a solid foundation. In the present matter, the Judicial Commissioner of Vindhya Pradesh had issued a certificate of fitness under article 134(1)(c). Accordingly, the proviso to clause (3) of article 145 permitted the appeal to be placed before a Division Bench composed of fewer than five judges. If the Division Bench, satisfied that the appeal raised a substantial constitutional question essential to the disposal of the appeal, referred that question to a Constitution Bench for its opinion and then disposed of the appeal in accordance with that opinion, the procedural scheme would be valid. To accept counsel’s submission would require the Court to hold that a three-judge Division Bench could split the case by referring the constitutional issues to a Constitution Bench and then deciding the remaining matters, while a Constitution Bench of five or more judges, if the case were originally posted before it, could not similarly divide the case by deciding only the constitutional questions and leaving the rest to a smaller Division Bench. Such a distinction would unjustifiably limit the ability of a Constitution Bench to resolve a case efficiently. The Court also noted article 228, which empowers a High Court, upon being satisfied that a case pending in a subordinate court involves a substantial constitutional question necessary for the case’s disposal, to withdraw the case, either to decide the case itself or to determine the constitutional issue and then return the case to the original court for final disposal in accordance with the High Court’s decision.

In considering the need to act in conformity with the judgment of the High Court, the Court observed that the argument advanced by the counsel for the petitioner required a holding that, although the High Court possessed the authority to divide a case that raised a substantial question of constitutional interpretation, a Constitution Bench of this Court did not share that power. The Court noted that, independent of the constitutional provisions, various procedural statutes permitted a case to be heard in parts by different judges. For illustration, the Court referred to section 24 and Order 18, rule 15 of the Code of Civil Procedure, as well as sections 350, 526, 528 and 556 of the Code of Criminal Procedure. The counsel for the petitioner, when his reasoning was taken to its logical extreme, essentially contended that while courts functioning under ordinary procedural codes could segment cases into successive stages for hearing and adjudication, a Constitution Bench could not do so when a case involving substantial constitutional questions was initially placed before it.

The counsel for the petitioner acknowledged the inconsistency that his position created but maintained that the inconsistency could not be avoided because the statutory provisions cited above expressly authorised the splitting of cases, whereas clause (3) of article 145 did not contain such a sanction. He argued that the cases mentioned required the allowance of case-splitting because special constitutional provisions or other statutes explicitly provided for such division. He further asserted that the very existence of those provisions demonstrated that, without them, no splitting could occur, and that these provisions therefore represented exceptions to an alleged general rule of case indivisibility. The Court rejected this line of reasoning. Firstly, it observed that the proviso to article 145(3), article 228 and the statutory provisions previously mentioned clearly showed that dividing a case into different stages for hearing and decision was not inconsistent with the Constitution or with general procedural principles. The Court emphasized that the Constitution’s fundamental requirement was that every constitutional question be heard and decided by a bench of not fewer than five judges. Provided that this requirement was satisfied, there was no constitutional objection to allowing the remaining portions of the case to be disposed of by a division bench consisting of fewer than five judges, thereby conserving the time of a Constitution Bench. Secondly, the Court stated that it was unaware of any overarching rule of indivisibility as alleged by the counsel. No principle mandated that a case must invariably be resolved in its entirety by a single judge or a single bench.

There is no rule that obliges a case to be heard and decided by the same set of judges when the matter can be conveniently dealt with in two or more stages. The Privy Council, in Maulvi Muhammad Abdul Majid v. Muhammad Abdul Aziz (1) L.R. 24 I.A. 22, observed that when a judge was presented with a case consisting of two parts—a question of title and an incidental question of account that depended on the title—the judge did not need any special provision of the Civil Procedure Code to decide the first question and to reserve the second for further investigation. The Council warned that treating such a proceeding as beyond the Court’s power and as an error that barred further decision would constitute a serious miscarriage of justice.

The Court frequently exercises its inherent power, whenever it deems fit, to decide preliminary questions such as jurisdiction or limitation, while reserving other factual questions for later investigation. When a case is decided in two or more stages, it often happens that the same judge is not available for the later stage because of death, retirement or transfer. Consequently, no argument can be sustained on the basis of a supposed general rule of indivisibility of a case for the purpose of its hearing and decision.

Recognising that no such general rule exists and that the division of cases is not repugnant to law or to the Constitution, the Court concluded that clause (3) of article 145 should not be read as attributing any quality of indivisibility to the words “the case”. A case may initially present a substantial question of law concerning the interpretation of the Constitution, but it may cease to do so at a later stage. For example, if a case involving a constitutional question is placed before a Constitution Bench but counsel informs the Bench that he does not press any constitutional point, the Bench cannot be required to occupy the time of five or more judges on a matter which, by the party’s own election, no longer involves a constitutional issue. Similarly, once a Constitution Bench has disposed of the constitutional questions, the remaining matters cannot properly be described as a “case involving a substantial question of law as to the interpretation of this Constitution”.

The Court also noted that when a case or appeal is properly admitted, the parties are entitled to a decision of the Court itself, not of any particular bench. So long as the minimum number of judges required by the Constitution and the

The Court explained that the rules formulated by this Court are intended to hear and decide the questions that arise at each stage of a proceeding; they act as the embodiment of the Court for the purpose of delivering decisions on its behalf, and the parties consequently receive everything to which they are legally entitled. The Court observed that, since a Court is permitted to decide a case in stages—a principle affirmed by the Privy Council—there is no justification for construing article 145(3) in a manner that would deprive this Court of that inherent authority. It was held that interpreting clause (3) of article 145 as merely requiring that a minimum of five Judges shall sit for the purpose of deciding any case, so far as and for as long as the case involves a substantial question of law concerning the interpretation of the Constitution, does not offend any principle of natural justice or any other legal principle. The Court found nothing in the language of clause (3) that opposes this interpretation. Moreover, the Court pointed out that, on the basis of this reading, a long-standing practice has developed whereby a Constitution Bench resolves all constitutional issues and leaves the remaining subsidiary questions to be adjudicated by a Division Bench consisting of fewer than five Judges, in accordance with the opinion of the Constitution Bench. The Court further noted that nothing in clause (3) compels a departure from the well-known maxim “cursus curiae est lex curiae,” articulated by Lord Coke in Burrowes v. High Commission Court and quoted with approval in Habibar Rahman v. Saidannessa Bibi. On the basis of the foregoing reasons, the Court concluded that the respondents had filed a proper and valid return to the rule nisi issued to them, and consequently the application was dismissed. The order was accordingly made. (1) 3 Bulst. 48, 53. (2) I.L.R. 51 Cal. 331, 335.

Justice Sinha expressed dissent, stating that he was compelled to differ from his learned colleagues on the construction of article 145(3) of the Constitution, which he identified as the principal issue in controversy in this case. He set out the wording of clause (3) of article 145, which reads: “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.”

The Court observed that the Constitution directs that, after a constitutional opinion is received, the appeal must be disposed of in conformity with that opinion. It further noted that the Constitution does not grant this Court unfettered authority to prescribe the composition of benches for hearing matters that arise in its original, appellate, or advisory jurisdiction. Clause (2) of Article 145 confers upon the Court the power to make rules fixing the minimum number of judges required for any purpose and to define the powers of single judges and division courts. However, this power is expressly limited by the restriction contained in clause (3) of the same article. Clause (3) provides that where any case involves a substantial question of law concerning the interpretation of the Constitution, the Constitution prescribes that a bench of at least five judges must decide that case. The Court recognized that a case may present both constitutional questions and other questions of law, and that it was necessary to determine whether clause (3) requires the whole case to be heard by a five-judge bench or only a portion of it. In its view, the Constitution, while enacting clause (3), envisages that the entire matter in controversy—whether it contains constitutional questions, other questions, or both—must be dealt with by a bench meeting the five-judge minimum.

The Court explained that the main provision of clause (3), except for cases that fall within the proviso, does not permit a case to be divided into segments, one of which contains a substantial constitutional question and another that does not. The reasoning rests on the language of clause (3) together with its proviso, which distinguishes between a “case” and a “question” of constitutional importance. According to the Court, the proviso allows a case that falls within its scope to be split so that the constitutional question can be determined by a bench of at least five judges—conveniently termed a “Constitution Bench”—while the remainder of the case may continue before a division court of fewer than five judges. By contrast, the main clause (3) obliges that a case described therein be heard and decided entirely by a Constitution Bench. The Constitution, therefore, places cases involving substantial constitutional questions on a special footing. The Court concluded that, had the framers intended only particular questions to be heard by a five-judge bench, they would have used language analogous to that in the proviso, thereby allowing the Constitution Bench merely to advise a division court. Instead, the wording of clause (3) makes clear that the whole case, not just selected questions, must be adjudicated by the larger bench.

It was observed that, had the Constitution intended that a Constitution Bench of five judges could simply give its opinion for a Division Court to follow in deciding a case, the language of the constitutional provision would have been fashioned in the same manner as the words employed in the proviso. A reference to article 228 of the Constitution demonstrated that the framers were fully aware of the distinction between adjudicating the “case itself” and deciding a “question of law” of constitutional importance that might arise within that case. Article 228 expressly required the High Court either to dispose of the entire case, including any constitutional question necessary for its resolution, or to determine only the constitutional question or questions and then to remit the case to the original court for final disposal in conformity with the High Court’s judgment on those questions. These specific provisions were introduced to underscore the separation between a full determination of the case and a determination of a substantial constitutional question of law. The Court considered whether, if clause (3) of article 145 had been enacted without the proviso, a case could be heard piecemeal: first by a Constitution Bench that would decide only the constitutional questions of interpretation, and subsequently by a Division Court that would decide the remaining aspects of the case. The Court held that such an approach would contravene the mandatory requirements of the main clause (3). Consequently, the framers incorporated the proviso as an exception to the general rule laid down in clause (3). The Court further noted that the proviso was limited to appeals, with an additional exception that the appeals covered by the proviso must not have reached the Supreme Court through the procedure specified in article 132 of the Constitution. Accordingly, not every case falling within clause (3) would be covered by the proviso; only appeals of a particular description qualified. Although the term “case” had never been defined, settled law treated it as a broader concept than either a “suit” or an “appeal.” Thus, while the proviso applied to appeals brought before the Supreme Court, except those arising under article 132, clause (3) applied to all appeals and to every other matter that came before the Supreme Court in its original, appellate, and advisory jurisdictions. The Court expressed that there could be no doubt that the main provisions of clause (3) were all-encompassing and contemplated all cases that came before the Supreme Court. The Court observed that the present matter had not been contended to fall within the scope of the proviso, but it was argued that, since a Division Court could refer a constitutional question to a Constitution Bench, there should be no reason to deny a Division Court the power to refer other questions to a Constitution Bench.

The Court examined whether a Constitution Bench could refer questions that were not of constitutional importance to a Division Court. It observed that the Constitution expressly contemplates the power of a Constitution Bench to refer questions of constitutional importance, but it contains no provision granting a Constitution Bench the power to refer non-constitutional questions to a lower bench, nor are there any rules of court that permit such a referral. The Court further noted that while the Constitution does not forbid the division of a case into two parts—one part presenting a question of constitutional importance and the other part not containing such a question—this allowance is limited to the situation where the Constitution itself provides a specific rule for such a division. In the present context, there is no specific constitutional provision that authorises the split of a case so that the portion involving constitutional issues may be heard by a Constitution Bench and the remaining portion by a Division Court; consequently, the argument that a case may be split in any other manner is not sustainable. The Court also referred to certain provisions of both the Code of Civil Procedure and the Code of Criminal Procedure, which do permit different courts of coordinate jurisdiction to hear the same matter in parts. However, those statutes involve courts that are on the same level of jurisdiction, and the question of each court’s competence over the subject-matter does not arise because each court is competent to hear the whole case or any portion of it. That situation does not apply here, where the issue is the competence of a higher constitutional bench compared with a lower division bench. The petitioner contended that his appeal raised substantial questions of law concerning the interpretation of the Constitution and that, because the appeal did not fall within the proviso to clause 3 of article 145, the entire matter should have been dealt with by a Constitution Bench. The respondent argued that once the Constitution Bench had decided the constitutional questions, the remaining issues no longer involved constitutional matters and therefore could be decided by a Division Court. The Court rejected this line of reasoning, holding that once a Constitution Bench has taken up a case, it cannot transfer any part of that case to another bench for the purpose of sharing the decision. The Constitution Bench must hear the entire case to its conclusion and does not possess the power to direct that any residual portion be heard by a Division Court. Moreover, there is no rule, created under the Court’s rule-making authority, that allows a case once placed before a Constitution Bench to be automatically or by order transferred to a Division Court.

In this matter, it was observed that a Constitution Bench might commence hearing a case and, before the hearing is completed, one of its judges could die or become otherwise unable to continue. The opinion then is that the Chief Justice possesses the authority to constitute a new Bench in such circumstances. However, that situation is distinct from the present issue because the earlier discussion concerned the interruption of a hearing due to a judge’s death, not the interpretation of the term “case”. When a judge is lost, the hearing conducted by the earlier Bench is considered to have produced no result, and the newly constituted Bench must start the hearing of the entire case anew. Another argument advanced by some counsel was that the term “case” could be interpreted to mean only a part of a case. The Court found that contention to be unsound because it conflicted with the purpose of the constitutional provisions governing the composition of Benches. Accepting that view would, if taken to its logical end, render the provisions of the main clause (3) of article 145 ineffective. Article 132 of the Constitution, as previously noted, is excluded from the operation of the proviso to clause (3). Imagine an appeal filed under article 132 on the ground that the matter raises substantial questions of law concerning the interpretation of the Constitution. Such an appeal may also contain additional questions that are unrelated to constitutional interpretation and that pertain to other aspects of the dispute.

If the proposition that a “case” may include only a portion of the controversy were permitted, a Constitution Bench could adjudicate the constitutional questions and leave the issues to be decided by a Division Court. That outcome would be contrary to the express exclusion of such matters from the proviso and would place the case squarely within the scope of the main clause (3). Consequently, every matter that comes before the Court involving a constitutional question could be split, with the Constitution Bench addressing the constitutional issue and a Division Court handling the rest. The Court concluded that such a practice was not intended by the framers of the Constitution because it would undermine the unified adjudication of a case. Accordingly, the term “case” must be understood to denote the whole matter that is in dispute before the Court, not merely a segment of it. The whole matter may encompass several questions that were originally contested in the lower court, provided that deciding the constitutional question is sufficient to resolve the case under the explanation to article 132. The learned Attorney-General further submitted that clause (3) of article 145 and its proviso should be read together. Even when read in that manner, the language of clause (3) does not authorize a piecemeal hearing of a case by different Benches unless the situation falls within the limited class covered by the proviso. The proviso is intended to apply only to a narrow category of cases that would otherwise be governed by the main clause (3). Its effect cannot be expanded beyond the meaning of its wording, which confines referral to a larger Bench to questions of the description specified in the proviso.

The Court observed that the proviso creates a clear separation between the notions of a “case” and a “question”. It noted that some authorities have suggested that a court possesses an inherent power to conduct its business in accordance with its own established practice. However, the Court pointed out that this Court was still in its formative stage and therefore could not be said to have an “established practice”. Moreover, the Court emphasized that it could not create a practice that conflicted with the constitutional provisions to which it was bound. The Court then turned to the cited decision of the Privy Council in Moulvi Muhammad Abdul Majid v. Muhammad Abdul Aziz (1) and held that the reference was inappropriate. In that Privy Council case, the trial was to be heard at two stages by a court of coordinate jurisdiction—meaning a single court that could either determine the whole case or each of the two parts separately. By contrast, the present matter involved two parts of the hearing being conducted by courts of unequal authority, and thus the analogy did not apply.

The Court also considered the reliance on the maxim “cursus curiae est lex curiae” of Chief Justice Coke, as quoted in Burrowes v. High Commission Court (1) and later invoked in Habibar Rahman v. Saidannessa Bibi (3) along with other authorities. Those authorities proceeded on the assumption that no statutory provision prohibited the practice in question. The Court, however, expressed the view that such a nebulous practice was inconsistent with the explicit provisions of clause (3) of article 145. Consequently, the Court concluded that the present matter fell squarely within the primary clause (3) of article 145 of the Constitution and was not covered by the proviso. Because the petitioner's appeal had not been heard and adjudicated in accordance with the constitutional procedure, the petitioner was entitled to the protection guaranteed by article 21. Accordingly, the appeal needed to be heard and decided under the procedure prescribed by article 145(3). The Court therefore allowed the petition to the limited extent that the appeal should be heard by a Constitution Bench and that a declaration be made that the Division Court’s judgment dated 5 March 1954 was not rendered by a competent court. Finally, following the majority judgment, the Court dismissed the petition. (1) L.R. 21 I.A. 22. (2) 3 Bulst. 48, 53. (3) I.L.R. 51 Cal. 331, 335.