Several complex questions have been referred to larger benches but they have lapsed from memory.
One of the urgent tasks before the Supreme Court when it starts the New Year is to clear the large backlog of cases referred to larger benches. When there is a conflict of views between two or more judgments of the court, delivered by different benches at different times, the high courts as well as litigants are confused as the state of law declared by the apex court is not clear. Therefore, the issue is referred to a larger bench. If the variance of views is between two-judge benches, it is referred to a three-judge bench. If the difference is between three-judge benches, the question is referred to a five-judge bench. And so on. Since the judges sit in ‘benches’, in 12 different court rooms, such divergence of views is more common than one would expect from the final court.
This is a problem facing not only the Supreme Court but also the high courts. Recently, the Allahabad high court made a list of issues raised by smaller benches to be decided by larger benches. It is not known whether the Supreme Court has such a list. However, a scan of the recent orders indicate that there could be some 50 such cases referred to larger benches, mostly Constitution benches. These issues affect government revenue when they refer to tax matters. Then there are human rights issues and political and constitutional questions.
Three years ago, a division bench referred to a constitution bench the interpretation of the very definition of ‘industry’ in the Industrial Disputes Act. The 1978 ruling of the court in the famous Bangalore Water Supply judgment was found to be unsatisfactory and the definition was described as not “comprehensive, clear and conclusive.” However, the court has not given a hearing to it despite the importance of the issue, especially in crucial times like this. The right to property under the Constitution is also waiting for a definitive interpretation in another case.
Then there are several issues relating to government revenue which are in the queue for final answers. Though the questions raised might look narrow and insignificant in the larger context, the loss in terms of revenue for various state authorities is substantial. One such is the question whether a steamer agent would be liable for payment of demurrage which are uncleared by the consignee. This has been referred to a larger bench in Forbes Campbells vs Board of Trustees. The court has also referred to a larger bench the petition of Larsen & Toubro challenging the levy of turnover tax on transfer of property jointly developed by a developer and the owner.
Last year, on an appeal by Syndicate Bank, the court referred to a larger bench the question whether in the absence of any execution and registration of sale deed, any interest in the allotted land could be treated as created in favour of the transferee. The court said that the issue has to be decided by a larger bench as banks and financial institutions advance loans merely on the basis of allotment letters which, if ignored, could result in economic instability. In an even earlier reference, the court has asked a larger bench to examine the power of the state governments to impose a ‘compensatory tax’ on goods imported from other states in the context of the constitutional doctrine of freedom of trade within the country.
There are other issues of national importance awaiting the last word from the final court. For instance, a division bench last year had referred the award of the Cauvery Water Dispute Tribunal to a larger bench in the wake of some petitions complaining that it was arbitrary and discriminatory. This had temporarily doused agitations taking place across Karnataka since the tribunal announced its verdict.
Then there are human rights issues crying for answers. The ban on the Students Islamic Movement of India (SIMI), which was lifted by a special tribunal, was stayed by the court and a full hearing on the issue is awaited. The question whether the police should be compelled to register a case when a complaint is made is another issue referred to a larger bench. So also the power of the court to hand over cases to CBI without the consent of the state government. The ban on women of reproductive age visiting the Sabarimala deity in Kerala is another old poser before the court.
