A Division Bench of the Delhi High Court of Justices Rajiv Shakdher and Justice C Hari Shankar delivered a split verdict in a batch of cases challenging the exemption to sexual acts between a man and his wife under Section 375 of IPC, thereby seeking criminalization of marital rape.
While Justice Rajiv Shakdher struck down the impugned provisions, Justice C Hari Shankar refused to do so. However, both Judges granted certificate of leave to appeal to the Supreme Court.
Considering the dissenting opinions passed by the Hon'ble Division Bench of the Delhi High Court the following questions come up for consideration:
1. Whether dissenting opinions could be considered judgment for the purpose of Article 132 of the Constitution of India?
2. As Both Judges issued Certificates under Article 134A (& Art.132) for Appeal before Supreme Court, would the matter be heard by the Supreme Court?
Different References envisaged under the legal Framework:
- Reference made under the Constitution of India
Article 143 of the Constitution of India provides for Presidential References to the Supreme Court under its advisory jurisdiction:
"143. (1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.
(2) The President may, notwithstanding anything in the proviso to article 131, refer a dispute of the kind mentioned in the 3 [said proviso] to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon."
In re Special Courts Bill, 1978,(1979) 1 SCC 380, the Hon'ble Supreme Court has held that opinion given under the advisory jurisdiction will be bending on all the Courts of India under Article 141.
- Reference made under the Code of Civil Procedure and other relevant provisions:
Section 2(2), Section (9) and Section 2(14) of the Code of Civil Procedure, 1908, define Judgement and order as:
"(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within 1*** section 144, but shall not include
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;
(9) "judgment" means the statement given by the Judge of the grounds of a decree or order;
(14) "order" means the formal expression of any decision of a Civil Court which is not a decree;"
Section 113 of the CPC read with Order XLVI pertains to reference made to the High Court:
"113. Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit:
Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court.
Explanation. In this section, "Regulation" means any Regulation of the Bengal, Bombay or Madras Code or Regulation as defined in the General Clauses Act,1897, (10 of 1897) or in the General Clauses Act of a State."
The Constitution provides for a reference to the Supreme Court by the President of India in its Advisory Jurisdiction. The Second Reference is provided under the Code of Civil procedure, 1908 to the High Court by any other court in the State on questions of law or validity of any Act.
There is a third kind of Reference provided for in rules of the High Courts, to determine the way ahead when there is a difference of opinion between two judges of the High Court. The primary difference between the three is not just the source but also the purpose for which they are provided for. The Constitutional reference is advisory in nature, the reference under CPC is to determine the question of law and validity of act referred to the High Court by any other court and the third kind of reference is to ensure that there is a valid judgement by way of majority opinion that would be binding and further appealable as per the due process of law.
To understand the third kind of reference as applicable in the present scenario, it is pertinent to trace the source of it. Without tracing its source, the questions raised cannot be answered.
Delhi High Court Rules and Provisions for reference to a Third Judge when there is a difference of opinion between two or more judges:
History of Delhi High Court provision of the Letters Patent of 21.03.1919 and Delhi High Courts Act, 1966:
The Delhi High Court was established on 31.10.1964 and the Letters Patent dated 21.03.1919 were made applicable to it. Under Letters Patent dated 21.03.1919 Lahore High Court was formed.
Clause 26 of the Letters Patents provides for the process when there is a difference of opinion between two judges:
| Powers of Single Judges and Division Courts
| |
| 26. And We do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915; and if such division Court is composed of two or more Judges and the judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case, including those who first heard it. | Single Judges and Division Courts. |
In other words, if there is a split verdict, and equal number of judges are divided in opinion it shall be decided as per the opinion of majority of the judges. Therefore, unless there is an opinion of the majority, it would not be construed as a valid judgement for there is no concrete decision to go by.
"7. Practice and Procedure in the High Court of Delhi—Subject to the provisions of the Act, the law in force immediately before the appointed day with respect to practice and procedure in the High Court of Delhi and accordingly the High Court shall have all such powers to make rules and others with respect to practice and procedure as are immediately before the appointed day exercisable by the High Court of Punjab and shall also have powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction:
Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court of Punjab shall, until varied or revoked by rules or orders made by the High Court of Delhi, apply with the necessary modifications in relation to practice and procedure in the High Court of Delhi as if made by that High Court."
Interplay between Letters Patent of 21.03.1919 and Delhi High Courts Act, 1966:
In R.P. Sachdeva v. The State, AIR 1986 Delhi 178 the question of interplay between the Letters Patent of 1919 and the Delhi High Court Act, 1966 was decided. The Court held that the jurisdiction of the High Court is same as exercisable in the Punjab High Court in Delhi before the constitution of Delhi High Court except as provided in Section 5(2) of Delhi High. Court Act, 1966. The High Court of Punjab under High Court (Punjab) Order 1947, has the same jurisdiction as exercised by the High Court at Lahore. There is no clause in the Letters Patent of Lahore High Court similar to Cl. 12 of the Letters Patent of Calcutta, Madras and Bombay High Courts.
Rules framed under Section 7 of the Delhi High Courts Act, 1966 re: difference of Opinion between judges:
The High Court of Delhi under chapter 4 has formulated Special procedure for Civil Cases titled:
"PART II—CIVIL
Part F(b)]
RULES FRAMED BY THE HIGH COURT FOR ISSUE OF WRITS OF MANDAMUS, PROHIBITION, QUO WARRANTO AND CERTIORARI UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
[Note: Please see Notification No. 17 Judicial/Rules of the Delhi High Court given immediately after these Rules]"
Rule 10 of the said Chapter 4- Part-II- Civil provides for a difference of opinion:
"10. In case of difference of opinion between the Judges composing the Divisional Court, the point of difference shall be decided in accordance with the procedure referred to in Clause 26 of the Letters Patent."
The High Court of Delhi in the case of Amar Pal Singh v. Election Commission of India,AIR 1993 Delhi 316 has held that The mandate of law is that in case the Division Court is composed of two Judges and the Judges are equally divided in opinion as to the decision to be given on any point, they should specifically state the point upon which they differ and the case should be heard on that point only by a third Judge and the point should be decided according to the opinion of the majority of Judges. Hearing by the third Judge is confined to the specific points stated in the reference and cannot cover the whole case again.
Pari Materia Letters Patent provisions of High Court of Bombay and High Court of Madras:
Difference of Opinion has also been found in Letters Patent 06.08.1861 for the High Court of Judicature at Bombay. Clause 36 provides for the following:
"Power of Single Judges and Division Courts
36. Single Judges and Division Courts. - And we do hereby declare that any function, which is hereby directed to be performed by the said High Court of Judicature at Bombay in the exercise of its original or appellate jurisdiction, may be performed by any Judge or any Division Court thereof appointed for such purpose, in pursuance of section one hundred and eight of the Government of India Act, 1915, and if such Division Court is composed of two or more Judges, and the Judges and are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it."
Similarly, Clause 36 of the Letters Patent for the High Court of Judicature at Madras dated 28.12.1865 also has incorporated difference of opinion between judges in Clause 36. The Clause states:
"Powers of Single Judges and Division Courts
36. Single Judges and Division Courts: - And we do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Madras, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof, appointed or constituted for such purpose[in pursuance of Section 108 of the Government of India Act, 1915] and in such Division Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided,[They shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it."
The above provisions as laid down in Letters Patent of Bombay (1861), Madras (1865), and Lahore (1919- as applicable to Delhi High Court) are parimateria and the obligation to refer it to another judge to constitute a majority opinion is mandatory as reflected by the use of the phrase "shall".
In the case of Manubhai P Vashi vs. Bar Council of Maharashtra and Goa, [(2007) 1 Bom CR 849 : (2007) 109 (1) Bom LR 17], there was a difference of opinion between the Division Bench and the matter was referred to under the extant rules.
While answering the Reference the Third Judge by his Judgement reported in [(2007) 3 Bom CR 277] has observed the following:
"Deshmukh D.K., J.:— The matter has been placed before me pursuant to the order made by the Hon'ble Chief Justice. These petitions were decided by the Division Bench consisting of Hon'ble Shri Justice F.I. Rebello and Hon'ble Shri Justice Anoop V. Mohta. There was difference of opinion among the two learned Judges and therefore the matter has been referred to me by the Hon'ble Chief Justice. Learned Counsel appearing for the Bar Council of Maharashtra and Goa invited my attention to Clause 36 of the Letters patent of the Bombay High Court. Clause 36 of the Letters Patent reads as under:
"Clause 36: Single Judges and Division Courts:— And we do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at (Madras), (Bombay), Fort William in Bengal in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof, appointed or constituted for such purpose, in pursuance of section 108 of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges if there shall be a majority, but if the Judges should be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it."
2. It is pointed out that in case of difference of opinion among two Judges who are constituting the Division Bench Clause 36 contemplates that the Division Bench has to state the ground or grounds upon which they differ and then the case has to be heard by a third Judge.
3. It is submitted that in the present case the learned Judges sitting in the Division Bench have not stated the point or ground on which they are not able to concur. The Judgment of the Supreme Court in the case of (Reliance Industries Ltd. v. PravinbhaiJasbhai Patel)1, reported in (1997) 7 SCC 300 : A.I.R. 1997 S.C. 3892 : J.T. 1997 (7) S.C. 618 : 1997 (5) SCALE 633 : 1997 (8) Supreme 52 was also pointed out.
4. In the absence of any provision to the contrary in the Original Side Rules there can be no doubt that Clause 36 of the Letters Patent will apply. The Supreme Court has considered the provisions of Clause 36 of the Letters Patent. In that case there was a difference of opinion among the members of the Division Bench to whom the Review Petition was assigned for decision. The Supreme Court has considered that question in paragraph 14 of its judgement in the case of Reliance Industries Ltd. which is reproduced below:—
Para 14: Consequently it is not possible to agree with the conclusion to which the High Court reached that because the two learned Judges of the High Court deciding the review petition did not agree and gave contradictory opinions regarding the merits of the review petition the decision of the review petition had to be as laid down by Order 47, Rule 6 CPC. Consequently, the said decision of the High Court dismissing the Miscellaneous Civil Application No. 1939 of 1995, rendered on 25-10-1996 cannot be sustained and will have to be-set aside. As a logical corollary to this decision of ours Miscellaneous Civil Application No. 1939 of 1995 is directed to be restored to the file of the High Court of Gujarat with a direction that in view of the conflicting opinion expressed by the Bench of the High Court consisting of H.L. Gokhale and M.S. Shah, JJ., who earlier heard the review petition, the questions arising for decision in the review proceedings on which the aforesaid two learned Judges either differed in their opinions or did not concur will have to be referred for opinion of the third learned Judge of the High Court as per Clause 36 of the Letters Patent. For that purpose the remanded review petition will have to be placed before the Bench of H.L. Gokhale and M.S. Shah, JJ. to enable them to state the points of their difference as per Clause 36 of the Letters Patent for being placed for consideration of the third learned Judge. The Hon'ble Chief Justice of the High Court is requested to assign the review petition to the appropriate Bench and thereafter to the third learned Single Judge for deciding these remanded proceedings as per Cause 36 of the Letters Patent at the earliest. It is obvious that the third learned Judge will be entitled to consider all the aforesaid questions arising out of the difference of opinion Between the two learned Judges, whether they are questions of fact or questions of law, and the review petition ultimately will be decided in the light of the decision of the third learned Judge, as per the procedure laid down by Clause 36 of the Letters Patent. It is obvious that if the ultimate decision in the review proceedings, as remanded as per this order of ours, goes against the appellant it will be open to the appellant to challenge the said final decision in accordance with law.
5. It is clear from the observation of the Supreme Court in paragraph 14 of the Judgment quoted above that in terms of Clause 36 of the Letters Patent the course of action required to be adopted is that when the two learned Judges of the Division Bench are unable to concur and are not in a position to make an agreed order they have to state the point on which they are not able to agree and it is that point which is referred to the third Judge for decision. In my opinion as the two learned Judges who were forming the Division Bench in the present case have not indicated the point on which there is difference of opinion, in view of the provision of Clause 36 referred to above and judgement of the Supreme Court in the case of Reliance Industries Ltd., the Hon'ble Chief Justice will have to direct the office to place the matter before the same Division Bench so that they could make an order to comply with the provisions of Clause 36 of the Letters Patent. The office is therefore, directed to place the matter before the Hon'ble Chief Justice and secure his order in accordance with law.
6.Matter before Hon'ble Chief Justice."
Determination of the Above Case Based on the Legal Matrix Specified:
Therefore, from the above, it is clear that for a judgement would be construed as a judgement delivered by majority of the judges adjudicating the case or majority opinion. When there is a difference of opinion between equal number of judges, it must be referred to another judge to ensure that a majority opinion is constituted in the case and that becomes a binding judgement. Unless there is no majority opinion, it cannot constitute as a judgement and would be only diverging opinions.
Analysis of the Present Case:
In the present appeal, there is a split verdict between the judges of the division bench. If tested on the above provisions of the Code, the Act and the Letters patent, a difference of opinion, the present judgement amounts to a difference in opinion between the judges of the division bench. There is no majority opinion provided for, therefore there is no appealable judgement in the present case as there is no majority opinion to bind the parties.
In the present case, no difference of opinion has been set out by the judges and a direct leave to appeal has been granted. But unless there is a majority opinion as mandated by Clause 26 of the Letters Patent and Rule 10 of Chapter 4 Part-II it would not constitute a valid judgement by majority opinion and will merely be an opinion, a judgement is a binding declaration on the issue and a majority opinion is required. In the present case, in light of the Precedents passed by the Delhi High Court, Bombay High Court and Supreme Court, difference of opinion would have to be settled as per the provisions laid down in Clause 26 of the Letters Patent and Rules framed in Chapter 4 Part-II. In the present case, it is mandatory the above process is followed to categorise the judgement by way of a majority opinion.
Any dereliction in following the above mandatory process contravenes and violates the ratio laid down in Taylor v Taylor,[(1876) 1 CH D 426] and Nazim Ahmed v Emperor(AIR 1936 PC 253). The same has been affirmed by the Hon'ble Supreme Court in Ramchandra Keshav Adke v. Govind,[(1975) 1 SCC 559]:
"24. Next point to be considered is, what is the consequence ` of non-compliance with this mandatory procedure?
25. A century ago, in Taylor v. Taylor [(1876) 1 Ch D 426] Jassel, M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor [AIR 1936 PC 253 : LR 63 IA 372] and later by this Court in several cases [Shiv Bahadur Singh v. State of U.P., AIR 1954 SC 322 : AIR 1954 SC 1098 : 1954 SCR 1098 : 1954 Cri LJ 910; Deep Chand v. State of Rajasthan, AIR 1961 SC 1527 : (1962) 1 SCR 662 : (1961) 2 Cri LJ 705] , to a Magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other." [ Maxwell's Interpretation of Statutes, 11th Edn., pp. 362-63] The rule will be attracted with full force in the present case, because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non est for the purpose of Section 5(3)(b)."
The Supreme Court under Article 132 has appellate jurisdiction from any judgement, decree or final order passed by the High Courts in India.Under Article 134-A, a leave to appeal can be granted by the High Court for any judgement, decree or final order passed by it.However, it must be read in tandem with the above provisions and has to pass the mandatory litmus test of judgement by majority opinion before it is appealed. Without which there would be only diverging opinions with no binding value before the Hon'ble Supreme Court
Answers to the Questions Formulated:
The answers to the questions raised are the following:
Question 1:Whether dissenting opinions could be considered judgment for the purpose of Article 132 of the Constitution of India?
Answer: No, it is merely a difference in opinion as there is no judgement by majority opinion that can be appealed under Article 132. It is mandatory that a difference in opinion is cast and placed before the Hon'ble Chief Justice of the High Court for reference to ensure that there is a judgement by majority opinion that can be appealed
Question 2: As Both Judges issued Certificate under Article 134A (& Art.132) for Appeal before Supreme Court would the matter be heard by the Supreme Court?
Answer: Not unless the above specified mandatory process is adhered to and there is a Judgement by way of Majority Opinion.
The author is an Advocate practising in the Supreme Court of India.
[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]