Important Point
When a Bench consists of two judges and they differ, the correct procedure is to refer the matter to Chief Justice for constituting a larger Bench.

Headnote:Constitution of India-Articles 142, 145 and 32-Practice and procedure of Supreme Court-Public interest litigation on the question of prostitution-Two Judge Bench hearing-They differ on issuance of directions for eradication of prostitution-By availing of Article 142, a Single Judge sitting in a DB of two Judges has issued directions singly although there is difference of opinion between him and his brother Judge-Review petition against-Whether it discloses an error apparent on the face of record? (Yes) (Supreme Court Rules, 1986-Orders VII and xxxv).
       Held : In view of Article 145(5) the concurrence of a majority of Judges present at the hearing of a case is necessary for any judgment or order. When a Bench consists of two judges and they differ, the correct procedure is to refer the matter to the Chief Justice for constituting a larger Bench. (Para 5)
       In fact this legal position is expressly noted by Ramaswamy, J. However, he has taken the view that despite the provisions of Article 145(5), he can take the assistance of Article 142 for the purpose of issuing directions even though his brother judge has differed from these directions. (Para 7)
       We do not find anything in Article 142 which enables the court to do so. (Para 8)
       It does not and cannot override Article 145(5). We do not think it would be possible to hold that Article 142(1) confers upon this Court powers which can contravene the provisions of Article 32”. Similarly, powers conferred by Article 142(1) also cannot contravene the provisions of Article 145(5). Article 142 would not entitle a Judge sitting on a Bench of two judges, who differs from his colleague to issue directions for the enforcement of his order although it may not be the agreed order of the Bench of two judges. (Para 9)
       The learned Judge is in error in resorting to Article 142 for the purpose of enforcement of his directions although his brother Judge has dissented from those directions. The justification which is put forward for resorting to Article 142 is that reference to a larger Bench would cause delay. This cannot be a ground for not following the provisions of the Constitution under Article 145. Whenever a matter has to be referred to a larger Bench, there is bound to be some delay. But such a reference is necessary in the interest of justice. It is necessary that the Court speaks with one voice and that voice is the voice of the majority as propounded in Article 145(5). Only then can its orders be enforced. When two judges differ, the matter will have to be decided by a larger Bench. (Para 10)
       We, therefore, allow this review petition. The directions given by the learned judge relating to prostitution and/or its amelioration or eradication are set aside. This, however, should not be understood as preventing the Union or State Governments from formulating their own policies in this area or taking measures to implement them. His observations relating to the use of Article 142 in this connection are also set aside and the question of giving any directions in relation to prostitution, its eradication or amelioration will have to be placed before a larger Bench if any directions are required to be given in that connection by this Court. The matter should be placed before the Hon’ble the Chief Justice for considering whether a larger Bench should be constituted for this purpose. (Para 11)

Judgment

Mrs. Sujata V. Manohar, J.-This is a somewhat unusual review petition filed by the Supreme Court Bar Association and supported by Gaurav Jain, the original petitioner, in respect of a decision of a Bench of two judges of this Court, Ramaswamy and Wadhwa, JJ. in Writ Petition (C) No. 824 of 1988, Gaurav Jain v. Union of India & Ors.1 By an order dated 5th of January, 1998 this review petition has been directed to be heard by a Bench a three judges of this Court. Hence the petition has been placed before us.

2. The original writ petition under Article 32 of the Constitution was filed as a public interest litigation by Gaurav Jain, an advocate of this Court. In the writ petition, the petitioner had asked for establishment of separate educational institutions for the children of prostitutes and for various other reliefs concerning children of prostitutes. The petition was heard and disposed of by a Bench of two judges-Ramaswamy and Wadhwa, JJ. In the judgment delivered by Ramaswamy, J., apart from a discussion of the plight of prostitutes and their children, various directions have been given, including directions for the constitution of a committee as set out in the judgment, to examine the plight of children of the prostitutes as also the problems of the prostitutes themselves and to devise ways and means for amelioration of their condition and for prevention and eradication of prostitution. On the other hand, Wadhwa, J. in his judgment, while agreeing with the directions given by Ramaswamy, J. pertaining to the children of the prostitutes, has not agreed to the directions given in respect of eradication of prostitution or succour and sustenance to be provided to them. He has stated:

“The Committee in its report which runs into over 100 pages has only referred in two paragraphs, while examining target group, as to who are the prostitutes. Apart from this I do not find there is any discussion in the report of the Committee towards eradication of prostitution. As to what should be the scheme to be evolved to eradicate prostitution, i.e., the source itself; the basics; and what succour and sustenance can be provided to the fallen victims of flesh trade was not a question agitated in the proceedings. Certainly no one can dispute that evil of prostitution must be curbed. It is the mandate of the Constitution which prohibits traffic in human beings.........

I am not entering into the scope and width of public interest litigation but when the issue has not been squarely raised, concerned parties not informed, pleadings being not there, it may not be correct to embark upon that task and to give interpretation of the law applicable thereto and that too without hearing the parties when the issue is so profound certainly involving hearing of the Union of India and State Governments with respect of their problems.

Thus considering the substratum of the judgment prepared by my learned brother relating to children of the prostitutes and establishment of the juvenile homes I would concur with the directions being issued by him in his order. I would, however, record my respectful dissent on the question of prostitution and the directions proposed to be issued on that account and also, in the circumstances of the case, what my learned brother had to say on the directions proposed to be issued referring to the provisions of Article 142 and 145(5) of the Constitution.”

(underlining ours)

3. Despite this clear dissent voiced by his brother judge, Ramaswamy, J. has given directions relating to prostitution and its eradication. He has held that under Article 32 of the Constitution, when a public interest litigation is launched, it cannot be considered as adversorial. It involves cooperation between the State and the Court. Had it been an adversorial dispute, in view of the dissent expressed by his brother judge, he would have referred the matter to a three judge Bench in respect of the directions on which

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1998 Supreme(SC) 404

Important PointWhen a Bench consists of two judges and they differ, the correct procedure is to refer the matter to Chief Justice for constituting a larger Bench.

Cases Referred (2)

Important Point
When a Bench consists of two judges and they differ, the correct procedure is to refer the matter to Chief Justice for constituting a larger Bench.