When can a Constitution Bench be formed?

By Palak Jain


The Constitution of India provides the Supreme Court at the helm of the Indian Judiciary. The Supreme Court plays a very crucial role in maintaining and upholding the values of law in our country and aims at delivering justice to all.

It constitutes a single-judge or more benches of judge to hear disputes between parties, adjudicate questions of laws before and finally deliver justice to aggrieved and innocent ones. These benches have been constituted over the years to adjudicate various cases of judicial importance.

Right from the case of Keshvananda Bharti[1] in 1973, where a 13-judge bench (the largest constitution bench in the history of Supreme Court) was set up to interpret a substantial question of law where it ruled that the parliament does not have the power to alter the basic structure of the constitution, to the Sabrimala Temple case in 2018 where a five-judge bench struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 that prohibited women of the age group of 10-50 to enter into the temple.

Therefore, it’s clear how important and significant functions these benches of judge play in administering justice in our country.

Formation of a Constitution Bench

The Supreme Court Rules, 2013, prescribes that every matter is to be heard by a bench of two-judges which is known as the division bench, which is constituted by the Chief Justice of India. The Chief Justice of India is empowered to allocate cases to different judges and to constitute benches.

The Chief of India may also constitute a bench of three-judges known as a full bench or a bench of more than five judges which is known as a constitutional bench to hear matters of greater importance.

Order VI, Rule (2) of the Supreme Court Rules, 2013 states that if in course of a hearing or proceeding of a matter, the bench is of a view that such a matter should be dealt with a larger bench, shall refer the same to the Chief Justice of India, who thereupon further appoint such a bench that may be fit for hearing it[2].

The constitution of India under Article 145 (3)[3] provides that if a matter is of such a nature that arises substantial question of law as to the interpretation of this constitution, must be referred to a bench of not less than five judges.

Since there is no permanent constitution Bench in the Supreme Court, all the matters are initially listed with a either a divisional bench or with a full bench.

Upon there, if the bench if of the opinion that the matter satisfies Article 143 (3) it may refer the Chief Justice of India in accordance with Order VI Rule (3) of Supreme Court Rules, 2013, to constitute a constitutional bench for the disposal of such matter.

Thus, a matter can be referred to a constitutional bench for its disposal on following circumstances:

  • If a matter appeared before the court, is of such a nature that may arise a substantial question of law or fact pertaining to the interpretations of this constitution [under article 145 (3)]. According to Article 145(3), the matter is to be heard by a bench of not less than five judges for its disposal.
  • If the President seeks to the Supreme Court for its opinion regarding a question of law or fact mentioned under Article 143 of the constitution. Article 143 of the constitution empowers the Supreme Court with advisory jurisdiction. According to its provisions, the President is empowered to refer questions to Supreme Court, which he deems important for public welfare.
  • If a two or more three-judge benches have adjudicated conflicting judgments on same point of law thus requiring a distinct arrangement and understanding of the law by a larger bench.
  • If a later three-judge bench questions the correctness of a judgment conveyed by a former three-judge bench of the Supreme Court and decides to allude the case to a larger bench for reconsideration of the prior judgment.

Recently in the case of Shanti Bhushan v. Supreme Court of India[4], the petitioner challenged that the Chief Justice of India alone should not be given the power to decide cases of important and substantial questions of law. Such cases of importance must be decided by the collegium of five senior-most judges.

There must be minimum discretionary in a rule of law and the CJI should not decide cases in his individual capacity. The Court stated that The court interpreted Article 145 and held that at any point a reference is made by a bench to a larger bench which judges will comprise that bench will be chosen by the Chief Justice.

No writ of mandamus can be given to the body or authority who is vested with the standard making power. Thus the petitioner is not entitled to look for a direction that a bench ought to be made in a specific way. It is this that is the prerogative power of the CJI to establish benches and assign cases to them.

Interpretation of Article 145(3) over the years

It was in the case of Rao Shiva Bahadur Singh V/s The State of Vindhya Pradesh and Ors.[5], wherein the validity of convictions and sentences was challenged before the court on the grounds that there had been infringement of the Article 14(Right to equality) and Article 20(Protection with respect to conviction of offences) of the constitution by the appellants.

The Court cited that the Article 20 prohibits application of conviction under ex-post-facto laws and not to trial thereof. The applicant contended that his case ought to be permitted to be heard by the constitution bench as it challenges significant provisions of the constitution.

Thus the Court did not acknowledge his thinking as the constitutional provisions are clear and consequently needs no understanding and subsequently will not be alluded to the constitutional bench in order to save the hour of the court.

In 1960, the Supreme Court tried clarifying the substantial scope of Article 145(3). In State of Jammu and Kashmir v/s Thakur Ganga Singh[6] it was observed by the Supreme Court that a substantial question of interpretation of a provision of the Constitution cannot arise when the law in question has already been decided finally and authoritatively by this Court.

It was in the case of Shrinath Balasaheb Patil and Ors. v/s Hon’ble Speaker, Karnataka Legislative Assembly and ors[7], that the Supreme Court had made yet another observation regarding Article 145(3). It was noted in this case that not all matters will be given to the constitutional bench for reference.

Only matters involving substantial question of law would be referred after considering the unmeritorious references that do not inessentially burn-through the valuable time of the court.

It was also observed that any question of general importance which emerges incidentally to the subject of law and which has no importance to the final outcome cannot be considered as a substantial question of law.

Constitution Bench Judgments of Recent times

In 2020, the Supreme Court had constituted a constitutional bench 11 times. Following are few of the cases where a verdict was given by a constitutional bench:

In March 2020, the Apex court overruled all points of reference relating to the interpretation of Section (24) of the Land Acquisition Act, 2013 (Indore Development Authority v/s Manoharlal & Ors[8]. The Court stated that under Section 24(1) (a) of the Land Acquisition Act, on the off chance that the award is not made as of January 1, 2014 (date of commencement of the 2013 Act), there will be no lapse of procedures and the compensation will be resolved as under the 2013 Act[9]

In the case of Chebrolu Leela Prasad Rao v/s State of Andhra Pradesh & Ors[10], a five-judge bench struck down 100% reservation government order passed by the State of Andhra Pradesh in the teaching sector to the schedule tribe in scheduled areas.

The Court held that granting 100% reservation was not permissible under the constitution of India and cited that the outer limit for reservation stands 50% as laid down in the Indra Sawhney Case[11].

The Court further held that such a notification was violative of Article 14(Right to Equality) and Article 16(4) (Reservation to SC/ST in matters of promotion).

In the case of Dr. Shah Faesal & Ors v/s Union of India[12], wherein petitions were filed before the Supreme Court challenging the abrogation of Article 370 of the constitution to a larger bench.

The fiver-judge bench rejected the petitions as it could not find any contradiction to its judgment passed in the cases of Prem Nath Kaul v/s state of Jammu and Kashmir and in Sampat Prakash v/s State of Jammu and Kashmir. Both these cases have been dealt with by the Supreme Court for the interpretation of Article 370 of the constitution.

The Supreme Court recently rescinded the Maharashtra Law to grant reservation in educational institutions and employment sectors to Marathas. The Maharashtra state government had framed the Maharashtra Law for granting a 16% quota for Marathas in educational and job sectors on 30th November 2018.

The five-judge bench gave a unanimous decision stating the Maharashtra Law as unconstitutional. The bench further added that the Maratha community cannot be declared as socially and economically backward to permit them reservation. The Court also ruled that the 1992 verdict capping quota at 50% was not required to re-examine.

Famous Cases

In 2011, the Government of India initiated a new identity document called an Aadhaar card for which a new agency was set up, the Unique Identification Authority of India (UIDAI), to give the card. For the application of the card, an occupant should present the output of their fingerprints and retina.

All the information is put away in a centralized database. Subsequently, the government made Aadhaar obligatory for a few government assistance plans, for example, financed food under Public Distribution System, Mid-day feast plan and Mahatma Gandhi Rural Employment Guarantee Scheme, and so forth.

This Aadhaar scheme was challenged before the Apex court by the retired judge of Karnataka High Court K.S. Puttaswamy. Therefore, the key question to be considered by the Supreme Court was whether the provisions of the Act were in violation to the right to privacy which has been established as a fundamental right sometime before.

The 11 judge bench in this case (K.S. Puttaswamy v/s Union of India[13]) the Bench unanimously recognized a fundamental right to privacy of every individual guaranteed by the Constitution, within Article 21 in particular and Part III on the whole. The decisions in M.P. Sharma and Kharak Singh were overruled[14]

The Supreme Court gave a historical judgment on India’s most controversial issue – the Ayodhya land dispute. The Supreme Court through a constitution bench of five judges unanimously held that the entire disputed area of 2.77 acres in Ayoydhya must be handed over for the construction of Ram Mandir.

Using its power under Article 142, the Supreme Court further held that an alternative plot of 5 acres must be allotted to the Sunni Waqf Board for construction of Mosque.

The Court also observed that the obliteration of Babri Masjid in 1992 was a demonstration disregarding the law and the act of placing idols underneath the central doe of the mosque in 1949 was an act of “desecration”.


Constitution benches are rare routine in the Supreme Court and are appointed on an ad hoc basis i.e., when the need arises or if there is an important question of law that requires the Court’s interpretation on that matter, it is then when a constitutional bench constituted.

It is likewise clear that in most matters the judgment or verdict given by the constitutional Bench is probably not going to be overruled for quite a while to come, there is a feeling of resoluteness connected to that decision because the best way to get such a decision overruled is to initially persuade a resulting five-judge seat of the Supreme Court that the view recently taken wasn’t right, have the matter alluded to a bigger seat of seven adjudicators, and afterward ,persuade that bench of seven appointed authorities to overrule the past judgment of the Constitution Bench. It is a lengthy process indeed.

Since the cases delivered by these benches are probably not going to be overruled for quite a while, one can conveniently say that Constitution Benches have immense power and obligation in fixing the way that the law is to take.


  1. Keshvananda Bharti Sripadagalvaru & Ors. v. Union of India & Ors. AIR 1973 SC 1461
  2. Supreme Court Rules, 2013
  3. Constitution of India, Article 145(3)
  4. Shanti Bhushan v. Supreme Court of India (2018) 5 SCC 341
  5. Rao Shiva Bahadur Singh V/s The State of Vindhya Pradesh and Ors [1955 ]2SCR 206
  6.  State of Jammu and Kashmir v/s Thakur Ganga Singh 1960 SCR (2) 346
  7. Shrinath Balasaheb Patil and Ors. v/s Hon’ble Speaker, Karnataka Legislative Assembly and ors W.P.(C) 997/2019
  8. Indore Development Authority v/s Manoharlal & Ors S.L.P. (C) NOS.9036-9038 OF 2016)
  9. barandbench.com
  10. Chebrolu Leela Prasad Rao and Ors. vs. State of A. P. and Ors. (22.04.2020 – SC Order) : MANU/SCOR/24647/2020
  11. Indira Sawhney & Ors. v. Union of India AIR 1993 SC 477, 1992 Supp 2 SCR 454
  12. Dr. Shah Faesal & Ors v/s Union of India WRIT PETITION (CIVIL) NO. 1099 OF 2019
  13. K.S. Puttaswamy v/s Union of India (2017) 10 SCC 1
  14. scobserver.in

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