Constitution Benches and Article 145(3)

A Constitution Bench is a bench of at least five judges of the Supreme Court. Article 145(3) of the Constitution says that any case involving a substantial question of law about the interpretation of the Constitution must be decided by at least five judges. The same minimum applies to a Presidential reference under Article 143. In simple words, when the meaning of the Constitution itself is in doubt, a small bench of two or three judges cannot settle it alone.

Why does it exist?

The Supreme Court has many judges, and most cases are heard by benches of two or three. If small benches were free to interpret the Constitution, two benches could give opposite answers on the same question. Lawyers, governments and citizens would not know which one to follow. A larger bench gives a more considered and more authoritative answer on the most important questions.

Where did it come from?

When the Supreme Court started in 1950, it had only 8 judges (the CJI and 7 others), so a five-judge bench was most of the court. Article 124(1) lets Parliament increase the number of judges by law. Parliament has done so several times. Since the Supreme Court (Number of Judges) Amendment Act, 2019, the sanctioned strength is 34, including the CJI. As the court grew, five-judge benches became a small part of the full court, and larger benches of 7, 9, 11 or 13 judges came to be formed for the biggest questions.

What does Article 145 say?

Article 145 lets the Supreme Court make rules for its own working, with the President's approval. Key parts:

• Article 145(3): at least five judges for a substantial question of constitutional interpretation, or for an Article 143 reference.
• Proviso to Article 145(3): if a smaller bench hearing an appeal finds such a question that is necessary to decide the appeal, it must send that question to a five-judge bench for its opinion. It then decides the appeal in line with that opinion.
• Article 145(5): a judgment needs the agreement of a majority of the judges hearing the case, but any judge who disagrees may write a dissent.

How does a case reach a Constitution Bench?

Step by step:

1. A two- or three-judge bench hears a case.
2. If it feels the case raises a substantial constitutional question, or that an earlier judgment may need a fresh look, it passes a referral order.
3. Under Order VI, Rule 2 of the Supreme Court Rules, 2013, the matter is placed before the CJI.
4. The CJI, as master of the roster, decides whether to set up the larger bench and who will sit on it.

What is a split verdict, and what happens next?

When judges on a bench with an even number of members, usually two, disagree, there is no majority. This is called a split verdict. The case is then placed before the CJI, who forms a larger bench, often three judges, to decide. On an odd-numbered bench (3, 5, 7), the majority view wins and the other view stands as a dissent.

How does bench size affect binding force?

Under Article 141, law declared by the Supreme Court binds all courts in India. Inside the Supreme Court, bench size decides which judgment prevails:

• A larger bench's ruling binds all smaller benches.
• A bench cannot overrule a judgment of a bench of equal strength. If it disagrees, it must refer the question to a larger bench.
• The Constitution Bench in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) laid down these rules clearly.

Famous large benches

• Kesavananda Bharati v. State of Kerala (1973): 13 judges, the largest bench ever. It created the basic structure doctrine (Parliament cannot amend the Constitution to destroy its core features).
• Indra Sawhney v. Union of India (1992): 9 judges, on OBC reservation and the 50% ceiling.
• S.R. Bommai v. Union of India (1994): 9 judges, on President's Rule under Article 356.
• K.S. Puttaswamy v. Union of India (2017): 9 judges, declared privacy a fundamental right.
• Anoop Baranwal v. Union of India (2023): 5 judges, on appointment of the CEC and ECs.

Commonly confused concepts

• Article 145(3) vs Article 143: Article 145(3) fixes the minimum number of judges (five). Article 143 is the President's power to ask the Supreme Court for advice on a question of law or fact. An Article 143 reference must be heard by at least five judges because of Article 145(3).
• Constitution Bench vs Full Court: A Constitution Bench is any bench of five or more judges hearing a case. A Full Court is a meeting of all judges, usually on administrative matters, such as adopting a code of conduct.
• Division Bench vs Constitution Bench: A Division Bench usually means two (sometimes three) judges. A Constitution Bench means five or more.
• Split verdict vs dissent: A split verdict means no majority at all (for example 1:1). A dissent is a minority view inside a decision that still has a majority (for example 4:1).

Issues, criticism and the way forward

• Pending references: Many questions referred to Constitution Benches wait for years. Pending cases tied to them also stay stuck.
• Unclear threshold: What counts as a "substantial question" is not defined. Different benches have taken different views on when a reference is really needed. This is the very disagreement seen in the CEC appointments case.
• References and delay: Critics note that a reference can delay a decision while the challenged law continues to operate. Others argue that careful, authoritative rulings on constitutional questions are worth the wait.
• Way forward: Suggestions include a permanent Constitution Bench (recommended by the Law Commission in its 229th Report, 2009, as a separate Constitution Bench at Delhi), fixed timelines for hearing references, and published lists of pending reference questions.

Concepts to Know

• Substantial question of law: A legal question that is important, open to real debate and not already settled by a binding judgment.
• Presidential reference (Article 143): The President can ask the Supreme Court for its opinion on an important question of law or fact. The opinion is advisory.
• Referral order: An order by a bench sending a case or a legal question to a larger bench.
• Basic structure doctrine: The rule from Kesavananda Bharati (1973) that Parliament can amend the Constitution but cannot destroy its core features, such as democracy or judicial review.
• Sanctioned strength: The maximum number of judges a court is allowed to have by law.