This lawsuit takes place at a period when India's Constitution had just been
enacted. Many cases concerning the interpretation of constitutional principles
were being filed in courts at this time. Fundamental rights and the guarantee to
protect them were promised to the people of the country.
The question of whether the fundamental right, of life and liberty, promised to
the citizens by Article 21 of the Constitution of India, 1950 could be infringed
because of the incompetency in the composition of the bench. In the case of Rao
Shiva Bahadur Singh v. State of Vindhya Pradesh, this issue was dealt quite well
by the Hon'ble Apex Court.
Since this is the first case to address the issue related to the composition of
the bench, it serves as a landmark precedent.
Court: Supreme Court of India.
Date of Judgment: 05/04/1955.
Petitioner: Rao Shiva Bahadur Singh
Respondent: The State of Vindhya Pradesh and Another
Composition of the Bench:
- Chief Justice Bijan Kr. Mukherjee
- Justice Sudhi Ranjan Das
- Justice Vivian Bose
- Justice Bhuvneshwar P. Sinha
- Justice Sayed Jaffer Imam
- � Rao Shiva Bahadur Singh (the petitioner) was the Minister of Industries in the Government of Vindhya Pradesh in the years 1948 and 1949.
- � On April 11, 1949, the petitioner was arrested in Delhi for accepting illicit benefits in exchange for favouring the Panna Diamond Mining Syndicate in a conflict over the lease of the Panna Diamond Mines.
- � In December 1949, the petitioner was brought before the Court of Special Judge at Rewa, along with one Mohan Lal, the secretary at the Ministry of Industries at that time.
- � On 26th July 1950, both the accused were acquitted by the special judge.
- � The State filed an appeal before the Judicial Commissioner of Vindhya Pradesh over the acquittal.
- � On 10th march 1951, the judicial commissioner convicted both the accused and sentenced them to separate terms of imprisonment under different sections in addition with fines.
- � On 12th march 1951, on the application of both the accused, the judicial Commissioner issued a certificate of fitness on four points of law raised in the case, and a petition of appeal was filed before the Supreme Court under article 134 of the Constitution of India.
- � In April 1953, this petition was placed before the Constitution Bench of the Supreme Court.
- � In this petition, firstly, the validity of the conviction and punishment by the judicial commissioner was challenged before the Constitutional Bench. On 22nd May 1953, the Bench of the Supreme Court rejected both the objections.
- � On the 20th October 1953, After the constitutional points were disposed of, the appeal was placed before the division bench and it ordered the appeal to be heard on the merits.
- � On March 5, 1954, this division bench upheld Mohan Lal's appeal and declared him innocent. However, it rejected the petitioner's appeal regarding his conviction under sections 161, 465, and 466 of the Indian Penal Code, and overturned his conviction on the charge under section 120-B. The sentence of imprisonment for three years was maintained but the fine was set aside.
- � On 18th March 1954, a review petition was filed for the judgments of both constitution and division bench.
- � The problem with the review petition was that a single review petition was filed for two different judgments, and even the time to file the review petition for one of the judgments lapsed.
- � On 5th April 1954, the review application was scheduled for hearing before the same Division Bench and on the same day the bench dismissed the petition.
- � On April 12, 1954, a new petition was submitted on behalf of the petitioner, requesting that the review of the Constitution Bench's ruling from the 22nd of May 1953 be brought before the Constitution Bench for a final decision.
- � On 17th May, the constitution bench declined the petition.
- � The petitioner then filed an application of the writ of habeas corpus on the allegation that the petitioner has been and is being deprived of his liberty otherwise than in accordance with procedure established by law.
Hence, the present case.
Legal Issues for Determination
Arguments forwarded by the Advocates
Arguments advanced by the Petitioner:
- Whether the judgement given by the Judicial Commissioner of Vindhya
Pradesh was violative of article 21?
- Whether under article 145(3) and article 228 of the Indian constitution
does the constitutional bench have the power to sever the case on the basis
of 'substantial question of law' and other part?
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Arguments advanced by the Respondent:
- The Court of the Judicial Commissioner of Vindhya Pradesh was not the proper forum for hearing the appeal against the judgment of the Special Judge and hence the decision of Judicial Commissioner setting aside of acquittal of the petitioner and convicting him under various sections of Indian Penal Code becomes void and will not have any effect.
- The petitioner's counsel is of the opinion that the question whether a particular case involves a 'substantial question of law' as to the interpretation of the Constitution is to be examined at the time when the case first comes before this Court.
That if a matter qualifies for a question of law, it must be dealt by the constitutional bench of the Apex Court.
- Under Article 145(3) of the Constitution of India, 1950 if the case is taken up by a constitutional bench and the entire case matter should be disposed of by that bench.
- The petitioner counsel contended that when the matter is first placed before the Division Bench of the Court and the matter is found to involve a Constitutional issue, the Constitutional issue must be resolved by the Constitutional Bench and in line of the opinion of that constitutional bench, the divisional bench may dispose the rest of the matter concerned.
- In contrary to the above given condition, if the matter is first is placed before the Constitutional Bench, then the Apex Court does not have the power and authority to split up 'the case' and sever the matters in the issue as per its convenience and therefore must be completely dealt up by the Constitutional Bench.
- The High Court under the powers conferred to it under Article 228 of the Constitution of India has the power to split up a case involving substantial question of law as to the interpretation of the Constitution of India but the constitution bench of the Apex Court in this case did not have the power to do so.
- The counsel further argued in the case referred to the rule of 'indivisibility of a case', wherein he contends that other than in certain types of proceedings as explicitly authorized by the statute, like that of reference made to CPC, the general rule of indivisibility of case is what governs the proceeding of a case in the court of any jurisdiction.
- For the references made by the learned counsel in the court, it is said that these provisions are exceptions to the general rule of indivisibility of a case.
Reasoning of the Court
- Under article 145(3) of Constitution of India it clearly states that the
cases coming within the purview of this clause may be split up so as to
admit of the questions of constitutional importance being determined by a
Constitutional Bench of at least five Judges.
- The learned counsel submitted that no such rule of 'indivisibility of
case' exists per se.
- The counsel contended that even if some sort of principle of this kind
existed, still the general rule of indivisibility of a case cannot be
applied here and splitting up of cases has to be allowed because the special
provisions of the Constitution or other statutes provide for such splitting
up in those cases.
- 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 i.e. to a Constitutional Bench, and
shall on receipt of the opinion dispose of the appeal in conformity with
- The underlying principle of the Constitution is clear and all that it
insists upon is that all constitutional questions should be heard and
decided by a Bench of not less than five Judges. As long as this requirement
is fulfilled there can be no constitutional objection to the rest of the
case being disposed of by a Division Bench of less than five Judges, so as
to save the time of the Constitution Bench of five or more, Judges.
- The court is not aware of any such general rule of indivisibility. There
is nothing in principle which requires that a case, must always be decided
in its entirety by one Judge or one set of Judges even though such a case
may conveniently be dealt with in two or more stages. The splitting up of
cases is not generally repugnant to law and in particular to the
Constitution, leads us to the conclusion that in construing clause (3) of
article 145 no quality of indivisibility need be attributed to the words
"the case" used therein.
- If a Court is entitled to decide a case in stages, as the Privy Council
has already held, there is no reason why article 145(3) should be so
construed as to deprive this Court of that inherent power. This court
assumes that the court has inherent power to decide on divisibility of cases
to constitutional bench and the other benches in respect to constitutional
questions the other subsidiary questions.
CJ Bijan Kr. Mukherjee, J. Vivian Bose, J. Bhuvneshwar P. Sinha, J. Sayed Jaffer
By Justice Vivian Sinha:
- So long as the minimum number of Judges which the Constitution and the
rules framed by this Court prescribe are present to hear and decide the
questions raised from stage to stage, they represent the Court for the
purpose of giving decisions on its behalf and the parties get all that they
are entitled to under the law.
- It will involve no violation of any principle of natural justice or of
any legal principle if we construe clause (3) of article 145 as requiring
only that the minimum number of five Judges must sit for the purpose of
deciding any case in so far and as long as it involves a substantial
question of law as to the interpretation of this Constitution.
- Indeed, the practice has grown up in this Court for a Constitution Bench
to dispose of all constitutional questions and to leave the other subsidiary
questions for disposal by a Division Bench of less than five Judges in
conformity with the opinion of the Constitution Bench. We find nothing in
the body of clause (3) of article 145 which compels us to depart from the
famous maxim cursus curiae est lex curiae (The practice of the court is the
law of the court) which was laid down by Lord Coke in Burrowes v. High
Commission Court (1).
- The case may involve a substantial question of law as to the
interpretation of the Constitution, but it may cease to do so at a later
stage. In that situation, it cannot be insisted that the time of a Bench of
five or more Judges should be spent on the determination of a case which has
ceased to involve any constitutional question.
The point of contention is the construction of Article 145(3) as interpreted and
described by the other judges of the bench. A case may involve both a question
of law as to the interpretation of Constitution and other issues. The primary
question was whether clause (3) here means the whole case or a part of the case.
The Constitution while laying down clause (3) of Article 145 meant the case as
the 'whole matter' in controversy which involves both the question of law of
constitution as well as other issues. A distinction has been made in 'case' and
'question' and also among the clause main body as well as the proviso to the
The matters falling within the purview of the proviso of clause (3) can be split
up to decide the question of law by a constitutional bench of not less than 5
judges. The rest of the matter can be left to the disposal of Divisional bench
in front of which the matter was originally placed.
The matters falling under main clause as prescribed in clause (3) cannot be
split up by the Apex Court as per its whims and fancies and needs to be
completely taken up by the Constitutional benchto resolve issue of law
(constitutional) as well as other issues in the case.
A reference to Article 228 of the Constitution was made to show that the makers
of the Constitution were fully aware of the difference between "case itself' and
'question of law' as A.228 gives discretionary power to High Court to solve the
question of law arising in constitution and dispose the rest if matter to lower
bench or court.
The reasoning is supported by stating that the Constitution has enacted the
proviso as an exception to the general clause which is the main clause (3). The
point of importance is that the proviso is specific and restricted to appeals
only, and to those that have not came up through procedure given in A. 132 and
qualifies the provisions of the proviso.
Furthermore, the reasons and references given by the other judges in their
opinion are countered by stating that the Court is in its formative stages and
there is no 'established practice' of this court. The reference made of the case
was challenged as stages of trial in that case was done by two courts of
coordinate jurisdiction which is very different from the present case.
In his opinion therefore the case falls within the ambit of 'main clause' and
hence must be taken up completely by the Constitutional Bench. He therefore
submitted his judgement by ordering to allow the petition to the extent that it
must be heard by Constitutional bench and the order of Divisional bench is that
of an incompetent court.
Final Judgement Held: By the order of the Majority of Bench, the petition is
New Rulings or Principles developed in the case:
Critical Comments on the Case
- When a case is properly admitted to this court, all what both the
parties are entitled is to get a decision of this court and not to choose or
decide a particular bench which should to be constituted.
- The language of A. 145(3) does not deprive the Hon'ble Supreme Court to
split the matters placed before itself as it being an inherent power of the
A court of law must infer the spirit of the Constitution from the Constitution's
language. Whatever one may think or hope, the Constitution's spirit cannot
prevail if that wish is not reflected in the Constitution's language. If it were
against the spirit of the Constitution to continue trials under such a
misinterpreted provision of Constitution of India, it would equally be against
the spirit of the Constitution for other men who will file petition under
article 145(3) of Constitution of India.
According to our understanding the line of reasoning given by the dissenting
judge in the case seems more appropriate and logical when it comes to the
interpretation of article 145(3) and its proviso of the Constitution of India.
This judgement was of the year 1955 and the court was still in its formative
stages and it cannot be said to have an "established practice". There are claims
to back this reasoning of established practice which says that divisibility or
splitting up of the cases has been a common practice in the countries from where
we have borrowed the provisions of our constitution. But what needs to be
understood is that since the prevalent social, political, economic and legal
conditions are different with respect to different countries we cannot apply any
common principle in the context of India. It was still a na�ve country
struggling to uplift itself so as to develop and it would take a considerable
amount of time to claim any practice as a established practices with reference
The present case comes under the purview of clause (3) of article 145 of
Constitution of India and not the provision. Hence the petitioner's appeal has
not been heard and under the procedure established by law. And that's why there
is a violation of article of 21 of the Constitution of India of the petitioner.
In this case the judge who has given the dissenting opinion concluded that the
word "the case" means the whole matter in controversy before the court.
He interpreted the article in a way that both clause (3) of article 145 and its
proviso of the Constitution of Indian should be read together but limited cases
fall under the ambit of the proviso. If a case falls under the clause (3) of
article 145 of Constitution of India there needs to be a constitutional bench
and they cannot severe the case on the basis of substantial question of law as
to the interpretation of constitution law but if it comes under the proviso of
this article then the case can be split up between the constitutional bench as
far as the constitutional question are concerned and the division bench with
regards to other issues involved in the case.
The court ruled that the Supreme Court has all the authority and discretion with
it to decide the bench for hearing of the matter, except when a constitutional
issue is involved which is needed to be taken up only a constitutional bench of
minimum 5 judges. Most importantly, a case like this cannot be constituted on
the grounds of some unknown and unrecognized 'Rule of Indivisibility' as
asserted in the petition.
Before declaring any judgement invalid or unconstitutional, one must try to
understand the meaning provided by the statute that backs the particular
judgement. The language of Article 145(3) clearly provides the conditions under
which a constitutional bench needs to be constituted for disposal of the matter.
Furthermore, any citizen has the right to get justice by this court but does not
have the power to choose the bench of this court before which the matter needs
to be placed. The Apex Court therefore reserves the sole discretion of placing
the matters before its various benches except in the cases where the statute
provides for the same. As a result, the court ruled that the case matter herein
lacks merit, and therefore dismissed the petition.
- Constitution of India.
- Press and Registration of Books Act (XXV of 1867).
- Indian Press (Emergency Powers) Act, 1931.
- General Clauses Act, 1897.
- Interpretation Act, 1889 of the Parliament of the UK.