Interpretation of Article 145(3): An Undecided Substantial Question of Law

By: Ankit Gupta

Constitution benches are a rarity at the Supreme Court (hereinafter ‘the SC’). These benches have been set-up to adjudicate all the landmark cases in the Indian legal history. Some of the glaring examples range from the Kesavananda Bharati (13 judge bench – highest in the history of the SC) in 1973 to the most recent Ayodhya Land Dispute (five judges bench) in 2019. This begets a question as to how and when a constitution bench is set-up at the SC.

The SC Rules, 2013 provides that every matter is to be heard by a bench consisting of not less than two Judges (also called a division bench) set-up by the Chief Justice of India (hereinafter ‘theCJI’) who alone has the power to constitute benches and allocate business to them. This stems from the virtue of him being the master of the roster.

As a consequence, the CJI may also constitute benches of three judges (also known as a full bench) or a constitution bench. Order VI, Rule 2 of the SC Rules, 2013 provides that “where in the course of the hearing of any cause, appeal or other proceeding, the bench considers that the matter should be dealt with by a larger bench, it shall refer the matter to the CJI, who shall thereupon constitute such a bench for the hearing of it.” This power is, however, discretionary and is exercised upon the subjective satisfaction of the CJI. However, the Indian Constitution has provided for circumstances under which the master of the roster is mandated to set-up a constitution bench. We shall, however, restrict ourselves to Article 145(3) which provides that 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. 

Since the SC does not have a permanent constitution bench, as a matter of practice, all the matters are first listed before a division bench or a full bench as the case may be. If the concerned bench hearing the matter opines that the matter satisfies Article 145(3), then in accordance with Order VI, Rule 2 of SC Rules, 2013, such a matter is referred to CJI to set-up a constitution bench for its disposal. However, what a substantial question of law as to the interpretation of this Constitution means has not been hitherto authoritatively settled by the SC. We shall, therefore, attempt to define the phrase inter-alia in light of prior judicial decisions and current practices.

To begin the discussion, the Supreme Court in 1955 set-up a Constitution bench under Article 145(3) in a case wherein, the validity of the convictions and sentences was challenged on the ground that there had been infringements of Articles 14 and 20 of the Constitution. Similarly, in 1958, a constitution bench of the Supreme Court ruled that a question was one satisfying Article 145(3) as the validity of the provision was challenged on the ground that it contravenes an article of the Constitution. It is pertinent to note these cases belonged to the 1950s when the Supreme Court had not interpreted Part III as we understand it today. However, they are important to trace the history of interpretation of Article 145(3).

In 1960, the Supreme Court attempted to substantially clarify the scope of Article 145(3). In State of Jammu and Kashmir v Thakur Ganga Singh, it observed that a substantial question of interpretation of a provision of the Constitution cannot arise when the law on the subject has been finally and effectively decided by this Court. Another observation regarding reference under Article 145(3) was made by a division bench of the SC in 2007 wherein, it noted

Untrammeled by the effect of Article 145(3) and Order 35 of the Rules, considering considerable importance of the issues involved and its likely impact in the social life of the country as a whole and the complexities of the questions, it is appropriate that the matter should be heard by a larger bench.

This observation, however, is a dangerous one since a subjective satisfaction on part of the SC judges may lead to every other matter being referred to a constitution bench.

It is also unfortunate that apart from this, the SC did not have an opportunity to interpret the scope Article 145(3). This assertion is buttressed by the observation of the SC in Shrimanth Balasaheb Patil and Ors. v Hon’ble Speaker, Karnataka Legislative Assembly and Ors., where it noted

There is no doubt that the requirements Under Article 145(3) of the Constitution have never been dealt with extensively and, more often than not, have received mere lip service, wherein this Court has found existence of case laws which have already dealt with the proposition involved, and have rejected such references. Normatively, this trend requires consideration in appropriate cases, to ensure that unmeritorious references do not unnecessarily consume precious judicial time in the Supreme Court.

Deliberating upon the scope of Article 145(3), the SC in the same judgment observed 

Any question of law of general importance arising incidentally, or any ancillary question of law having no significance to the final outcome, cannot be considered as a substantial question of law. The existence of substantial question of law does not weigh on the stakes involved in the case, rather, it depends on the impact the question of law will have on the final determination. If the questions having a determining effect on the final outcome have already been decided by a conclusive authority, then such questions cannot be called as “substantial questions of law”.

Therefore, the jury is still out as to what qualifies a substantial question under Article 145(3) which is worthy of being decided by a constitution bench. Therefore, as a matter of suggestion, a substantial question under Article 145(3) should be one 

  1. which involved interpretation of any Article of the Indian Constitution which has hitherto not been interpreted by the SC;
  2. where conflicting interpretations of the same Article of the Indian Constitution has been given by different co-ordinate benches (bench with the same strength of judges) of the SC; and
  3. which involves interpretation of Article(s) of the Indian Constitution which has/have a direct bearing on the adjudication of the dispute and should not merely be incidentally related. 

Hence, the time has come when some bench of the SC exercise reference powers under Article 145(3) r/w Order VI, Rule 2 of SC Rules, 2013 to interpret Article 145(3) so that casual and cavalier references may not burden the already over-burdened SC.

(Ankit is currently a law undergraduate at National Law Institute University, Bhopal. He may be contacted at

Cite as: Ankit Gupta, ‘Interpretation of Article 145(3): An Undecided Substantial Question of Law’ (The RMLNLU Law Review Blog, 08 May 2020) < > date of access.

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