- (1.) Since the challenge involved raises the question as to the validity of Articles 15(5) and 21-A of the Constitution of India, we are of the view that the matter needs to be referred to the Constitution Bench of five Judges.
(2.) Issue rule nisi. The learned Solicitor General waives service of the rule. All the respondents are before us. The counter-affidavits be filed within four weeks.
(3.) These petitions be placed before the Constitution Bench for directions on a suitable date. Court Masters [Ed.: These writ petitions have been disposed of by the order dated 12-4-2012, by the same Bench of three learned Judges. The order dated 6-9-2012 published above, however had directed that the writ petitions "be placed before the Constitution Bench for directions ... since the challenge involved raises the question as to the validity of Articles 15(5) and 21-A of the Constitution of India". After the above order directing that the matter be placed before a Constitution Bench on 6-9-2010 was passed, the matter was listed on 7-1-2011 when the Court posted it for hearing on 17-1-2011. The Hindu contains1 the following report of the hearing of the case on 17-1-2011: "Supreme Court to examine RTE impact on private schools New Delhi, January 17, 2011 PTI Refraining from granting a stay, the Supreme Court on Monday agreed to examine the validity of the provision of Right to Free and Compulsory Education (RTE) Act which mandated 25 per cent of reserved seats for economically backward sections in private unaided schools. A Bench of Chief Justice S.H. Kapadia, Justices K.S.R Radhakrishnan and Swatanter Kumar did not favour at the moment the idea of referring the matter to a Constitution Bench. "At the moment we are not going to stay the statutory provision. We are not passing any order," the Bench said when Additional Solicitor General Indira Jaising urged the Court to refrain from passing any order on the plea of private schools challenging the provision and seeking a stay. Senior Counsel Harish Salve, appearing for a consortium of private schools, however, maintained that the organisation was not pressing for a stay but suggested that the matter be examined by a Constitution Bench in view of its impact on the rights of private educational institutions. The Chief Justice said the Court cannot refer the matter to a Constitution Bench as it was hard pressed with other work and would only prolong the hearing. He, however, said the three-Judge Bench would initially examine the matter, and only if warranted refer it to a Constitution Bench. The matter was posted for further hearing to Friday. Earlier, the ASG said the Act has been formulated in tune with the constitutional provisions of equality and providing free education to the underprivileged. The main petitioner, Society for Unaided Private Schools of Rajasthan, and a host of associations representing various private schools have questioned the validity of the Act on the ground that it impinged on their rights to run the educational institutions." It seems that the above observations of the Court were made orally since the order dated 17-1-2011 of the Supreme Court in the said writ petitions reads as follows: "1. Issue notice in Writ Petition (C) No. 22 of 2011 and Writ Petition (C) No. 24 of 2011. Dasti service, in addition, is permitted. 2. Liberty to the parties to complete their pleadings. 3. Place these matters on 21-1-2011, for directions for fixing the date." After this order was passed on 17-1-2011, the writ petitions were listed and heard on about twenty occasions2, when many more writ petitions were tagged with the original writ petitions, and counsel made submissions from time to time before the Hon'ble Court. The matter was finally heard on 3-8-2011 when it was reserved for judgment, and the judgment was delivered on 12-4-2012 by the same learned Bench of three Judges. There is no order withdrawing or modifying the order dated 6-9-2010 that could be found. The order dated 12-4-2012 is thus decided on the basis that Articles 15(5) and 21-A are valid: in fact the entire reasoning of the majority is premised on the assumed validity of Articles 15(5) and 21-A (see paras 28 et seq. at SCC pp. 32 et seq. and paras 60 et seq. at SCC pp. 42 et seq. and Shortnote C at SCC p. 3). Hence, it seems that the question of the validity of Articles 15(5) and 21-A remains open, since it has not been decided, though initially the matter had been directed to be placed before a Constitution Bench for deciding the same. These proceedings also raise an interesting question of law as to the power retained by a Bench that initially makes a reference to a Constitution Bench in terms of Article 145(3). A further question that arises is whether a reference in terms of Artcle 145(3) is mandatory, and whether counsel may withdraw the questions which amount to substantial questions of law as to the interpretation of the Constitution after the matter has initially been referred to a Constitution Bench under Art. 145(3). Article 145(3) of the Constitution reads: "145.(3) 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: Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion." The question before the five-Judge Constitution Bench in Rao Shiva Bahadur Singh v. State of Vindhya Pradesh, 1955 2 SCR 206 was whether a matter involving substantial questions of law as to the interpretation of the Constitution could be heard in stages. Answering in the affirmative the majority of the Court also observed (though obiter): per S.R. Das, J. (as His Lordship then was, for Mukherjea, C.J., himself, Vivian Bose and Imam, JJ.; Sinha, J., dissenting): "A case may, to begin with, involve a substantial question of law as to the interpretation of the Constitution, but it may cease to do so at a later stage. Suppose a case which involves a constitutional question is placed before a Constitution Bench but the learned counsel appearing in support of the case intimates to the Bench that he does not press any constitutional point, surely he cannot, in that situation, insist that the time of a Bench of five or more Judges should be spent on the determination of a case which, by his own election, has ceased to involve any constitutional question." In ITC Bhadrachalam Paper Boards Ltd, v. State of A.P, 2003 11 SCC 679 the matter had been placed before a five-Judge Bench as a three-Judge Bench had made a reference for reconsideration of the majority view of the nine-Judge Bench in Mafatlal Industries Ltd. v. Union of India, 1997 5 SCC 536. Before the five-Judge Bench in ITC Bhadrachalam, both, counsel for the appellant and the Solicitor General appearing for the State, agreed that Mafatlal was correctly decided. In such circumstances, the five-Judge Bench held that the reference to the larger Bench was not called for, and recalling the reference directed that the matter be placed before a regular three-Judge Bench. It is also interesting to consider the four Ramdas Athawale cases where on the view that substantial questions of law as to interpretation of the Constitution arose, the matter was initially referred to a Constitution Bench by a three-Judge Bench of which the then Chief Justice was a member; then the reference was withdrawn by a three-Judge Bench comprising the later Chief Justice, which latter Bench disagreed as to the need for a reference to a larger Bench, but which latter three-Judge Bench referred the matter to the original referring Bench upon the insistence of the petitioner that the matter be heard by a Constitution Bench. Thereupon, the reference was ultimately restored by the former Bench to which the matter was returned. See Ramdas Athawale v. Union of India,2009 16 SCC 390, Ramdas Athawale v. Union of India,2009 16 SCC 391, Ramdas Athawale v. Union of India,2007 15 SCC 707 and Ramdas Athawale v. Union of India, 2007 15 SCC 708. See also generally Central Board of Dawoodi Bohra Community v. State of Maharashtra, 2005 2 SCC 673 the locus classicus on the general principles in regard to when a matter may be referred to a larger Bench, and by Benches of what strength, etc.];