Holding

In a divided two‑judge bench, the matter must be referred to the Chief Justice for a larger bench; Article 142 cannot override Article 145(5).

Summary

Gaurav Jain filed a public‑interest writ under Article 32 seeking separate educational institutions and other relief for children of prostitutes. A two‑judge Division Bench (Ramaswamy J and Wadhwa J) delivered differing judgments: Ramaswamy J ordered the establishment of a committee and measures to eradicate prostitution, while Wadhwa J dissented on the eradication aspect and invoked Article 142 to enforce his directions despite the dissent, arguing that referring the matter to a larger bench would cause delay. A review petition was filed challenging the use of Article 142 and the directions on prostitution. The Supreme Court held that when a two‑judge bench is divided, Article 145(5) requires the matter to be referred to the Chief Justice for constituting a larger bench; Article 142 cannot override this constitutional requirement. Consequently, the directions on prostitution were set aside and the matter was ordered to be placed before the Chief Justice for a larger bench. The review petition was allowed.

Issues considered

When a two‑judge bench is divided, can a judge invoke Article 142 to enforce his directions despite dissent?
Does Article 145(5) mandate referral to a larger bench in case of difference of opinion, even in a public‑interest litigation?
Can directions on eradication of prostitution be issued without a majority decision of the bench?
Does Article 142 have the power to override the procedural requirement of Article 145(5)?

Legislation cited

Constitution of Indias. 142, s. 145(5), s. 32
Supreme Court Rules, 1966s. Order VII Rule 1, s. Order VII Rule 2, s. Order XXXV Rule 1, s. Order XXXV Rule 10(1), s. Order XXXV Rule 10(2)

Subjects

Public Interest LitigationArticle 32Article 142Article 145(5)Bench compositionLarger benchSupreme Court RulesReview petitionDirectionsProstitutionChildren of prostitutes

Judgment

GAURAV JAIN AND ANR. A
v.
.. ~ UNION OF INDIA AND ORS.

MARCH 30, I 998

[MRS. SUJATA V. MANOHAR, S.P. KURDUKAR AND B
D.P. WADHWA, JJ.]
---<,
Constitution of India, I950-Articles 32, I42 and 145-Public Interest
Litigation-Order of Supreme Court-Enforcement of-Member of Division
Bench having difference of opinion-One of them resorts to Article 142- c
Issuing direction for enforcement of his orders despite the dissent by other
Judge-Held, not proper-Matter must be referred to Chief Justice of India
of constituting larger Bench.

In Gaurav v. Union of India & Others, (1977) 8 SCC 114, the two
Judges in the Division Bench, gave separate dissenting judgments. One of D
·t- them resorted to Article 142 for the purpose of enforcement of his directions
although his brother judge had dis:ented from those directions, on the
ground that reference to a larger Bench would cause delay.

In this review challenging the said directions, the appellant contended
E
that the matter must necessarily be referred to the Chief Justice of India
for constituting a larger Bench under the provisions of Article 145(5).

Allowing the Review Petition, this Court

HELD : 1. When a Bench consists of two judges and they differ, even
if it is a public interest litigation, the provisions of Article 145(5) will apply
F
# ~
and the matter must necessarily be referred to the Chief Justice of India for
constituting a larger Bench. [498-C)

2. When two Juciges differ, the matter will have to be decided by a·
larger Bench and there is bound to be some delay but such a reference is G
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 its orders can be enforced. (499-G(

3. Article 142 does not and cannot override Article 145(5). The.decree
and Order issued under Article 142 must be issued with the concurrence H
493
494 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A of the majority of Judges hearing the matters. 1498-GI
Prem Chand Garg and Anr. v. Excise Commissioner, U.P. and Ors., AIR
(1963) SC 996, referred to.

4. Powers conferred by Article 142(1) cannot contravene the provisions
B of Article 145(5). Article 142 would not entitled a judge sitting on a Bench
of two Judges, who differs from his colleague to issue direction for the
enforcement of his order although it may not be the agreed order of the
Bench of two Judges. If this were to be permitted, it would lead to conflicting
directions being issued by each Judge under Article 142, directions which
C may quite possibly nullify the directions given by another Judge on the same
Bench. This would put the Court in an untenable position because if in a
Bench of two Judges, one Judge can resort to Article 142 for enforcement
of his directions, the second Judge can do likewise for the enforcement of
his directions. And even in a larger Bench, a Judge holding a minority view
can issue his order under Article 142 although it may conflict with the order
D issued by the majority. This would put the Court in an in defensible situation
and lead to total confusion. Article 142 is not meant for such a purpose and
cannot be resorted to in this fashion. (499-C-F]

CIVIL APPELLATE JURISDICTION : Review Petition (C) No. 1841
of 1997 in Writ Petition (C) No. 824 of 1988.
E
(Under Article 32 of the Constitution of India.)
. .
Ms. K. Amareshwari, Gaurav Jain, R.S. Suri, Ms. Abha Jain, K.S. Bhati,
S. Bhoumik, V. Shanna, A.K. Srivastava, Ms. Sushma Suri, Ranjan Mukherjee
F (NP), S.K. Jain, Vijay Hansa.-ia, Y.P. Mahajan, Mrs. Ani.l Katiyar, Ms. Madhur
Dadlani, S.K. Agnihotri, V.C. Pragasam (NP), B.B. Singh (NP), C.V.S. Rao (NP),
D.M. Nargolkar (NP), R.K. Mehta (NP), Shri Narain (NP), Ashok Mathur (NP),
R.P. Mishra (NP), D.N. Mukherjee (NP), M.N. Shroff(NP), Ms. S. Janar.i (NP),
M. Veerappa (NP), Aruneshwar Gupta (NP), V. Krishnarnurthy (NP), T. Anil
Kumar (NP) and Vishal Jeet (In person) for the appearing parti~s.
G
The Judgment of the Court was delivered by

MRS. SUJAT A V. MANO HAR, J. This is a somewhat unusual review A...
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
H of this court, Ramaswamy and Wadhwa, JJ. in writ petition (C) No. 824of1988,
GAURAV JAIN v. U.0.1. [SUJATA V. MANOHAR, J.] 495
Gaurav Jain v. Union ofIndia & Ors. and reported in, [I 997] 8 SCC 114. By A
.... '(
an order dated 5th of January, 1998 this review petition has been directed to
be heard by a Bench of three judges of this Court. Hence the petition has
been placed before us.

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 B
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 hen given, including directions for
c
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, D
;; ·t- 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 E
are the prostitutes. Apart from this I do not find there is any discussion
in the report of the Comn:iittee 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
"f agitated in the proceedings. Certainly no one can dispute that evil of F
""'
prostitution mµst 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
G
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 the issue is so profound certainly
involving hearing of the Union of India and State Governments with
respect to their problems. H
496 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 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,
B what my learned brother has to say on the directions proposed to
be issued referring to the provisions of Articles 142 and 145(5) of
the Constitution"

[underlining ours]

c 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
D 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 he and
his brother judge had differed. However, since the petition was public interest
litigation and was not adversorial in nature, and since the matter was pending
for nearly a decade, if a reference were to be made to a three-judge Bench,
it may be further delayed. Therefore, under Article 142 he could issue directions
E to enforce his order in its entirety even in respect of that portion of the order
from which his brother judge had dissented, in order to do complete justice
in the case. By availing of Article 142, a Single Judge sitting in a Division
Bench of two judges has issued directions singly although there is a difference
of opinion between him and his brother judge. It is this part of his order which
F is sought to be reviewed on the ground that it discloses and error apparent
on the face of the record.

Article 145(1) of the Constitution provides that subject to the provisions
of any law made by Parliament, the supreme Court may, from time to time, with
the approval of the President, make rules for regulating generally the practice
G and procedure of the court. The Supreme Court Rules have been framed under
this provision. Under clause (2) of Article 145, subject to the provisions of
clause (3), rules made this Article may fix the minimum number of Judges who
are to sit for any purpose, and may provide for the powers of single Judge~
and Division Courts. Clause (5) of Article 145 provides as follows:

H "145(5): No judgment and no such opinion shall be delivered by the
GAURAV JAIN v. U.0.1. [SUJATA·v. MANOHAR, J.] 497

Supreme Court save with the concurrence of a majority of the judges A
present at the hearing of the case, but nothing in this clause shall be
deemed to prevent a judge who does not concur from delivering a
dissenting judgment or opinion."

In view of Article 145(5) the concurrence ofa majority of Judges present
at the hearing of a case is necessary for any judgment or order. When a Bench B
consists of two judges and they differ, the correct procedure is to refer the
matter to the Chief Justice for constituting a larger Bench. Under Order VII
Rule 1 of the Supreme Court Rules, 1966, subject to the other provisions of
these rules, every cause, appeal or matter shall be heard by a Bench consisting
of not less than two Judges nominated by the Chief Justice subject to certain C
provisos. Rule 2 of Order VII provides that where, in the course of the hearing
of any cause, appeal or other proceeding, the Bench considers that the matter
should be dealt with by a larger Bench, it shall refer the matter to the Chief
Justice, who shall thereupon constitute such a Bench for the hearing of it.
Order XXXV deals with applications for enforcement of fundamental rights
under Article 32 of the Constitution. Rule 1 of Order XXXV provides as D
follows:

"!.(!):Every petition under Article 32 of the Constitution shall be in
writing and shall be heard by a Division Court of not less than five
Judges provided that a petition which does not raise a substantial
question of law as to the interpretation of the Constitution may be E
heard and decided by a Division court of less than five Judges, and,
during vacation, by the Vacation Judge sitting singly."

Rules 10 (I) and (2) of Order XXXV are as follows:

"10(1): Unless the Court otherwise orders, the rule nisi together with F
a copy of the petition and of the affidavit in support thereof Shall be
served on the respondent not less than twenty-one days before the
returnable date. The rule shall be served on all persons directly affected
and on such other persons as the Court may direct.
G
(2) Affidavits in opposition shall be filed in the Registry not later than
four days before the returnable date and affidavits in reply shall be
filed within two days of the service of the affidavit in :ipposition."

Therefore, counter affidavits can be filed by the respondents in a public
interest litigation, and further affidavits in rejoinder etc. can also be filed. H
498 SUPREME COURT REPORTS [1998] 2 S.C.R.

A There is no provision under Order XXXV for any special procedure in
respect of a public interest petition under Article 32. The petition will have
to be served on the respondents who have a right to file a counter affidavit.
Although the proceedings in a public interest litigation may not be adversorial
in a given case, there can clearly be different perceptions of the same problem
or its solution and the respondents are entitled to put forth their own view
B before the Court which may or may not coincide with the view of the petitioner.
The court may come to a view different from that of any of the parties.
Therefore, even in a public interest litigation, if the members of the Bench
hold different views, the provisions of Article 145(5) will apply and the matter
will have to be decided by a majority. When a Bench consists of two judges
C and they differ, the matter must necessarily be referred to the Chief Justice
for constituting a larger Bench. 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.
D
We do not find any thing in Article 142 which enables the court to do
so. Article 142 provides as follows:

"142. Enforcement of decrees and orders of Supreme court and orders
of Supreme Court and orders as to discovery, etc.-
E
(!)The Supreme Court in the exercise of its jurisdiction may pass such
decree or make such order as is.necessary for doing complete justice
in any cause or matter pending before it, and any decree so passed
or order so made shall be enforceable throughout the territory of India
in such manner as may be prescribed by or under any law made by
F
Parliament and, until provision in that behalf is so made, in such
manner as the president may by order prescribe.

(2) .................... "

It does not and cannot override Article 145(5). The decrees or orders
G
issued under Article 142 must be issued with the concurrence of the majority
of judges hearing the matter. In the case of Prem Chand Garg and Anr. v.
.,.
Excise Commissioner, U.P. and Ors,. AIR (1963) SC 996, a Bench of five
judges of this Court considered a Rule made by this Court providing for
imposition of terms as to costs and as to giving of security in a petition under
H Article 32. The Rule was sought to be justified, inter alia, on the ground that
GAURAV JAIN v. U.0.1. [SUJATA V. MANOHAR, J.] 499
the powers conferred on this Court under Article 142 were very wide and A
could not be controlled by Article 32. Negativing this contention, this Court
said, "The powers of this Court under Article 142( I) are no doubt very wide
and they are intended and would be exercised in the interest of justice. But
that is not to say that an order can be made by this Court which is inconsistent
with the fundamental rights guaranteed by Part III of the Constitution. An B
order which this Court can make in order to do complete justice between the
parties must not only be consistent with the fundamental rights guaranteed
by the Constitution but it cannot even be inconsistent with the substantive
provisions of the relevant statutory laws. Therefore, 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 C
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. If this were to
be permitted, it would lead to conflicting directions being issued by each
judge under Article 142, directions which may quite possibly nullify the D
- y directions given by another judge on the same Bench. This would put the
court in an untenable position. Because if in a Bench of two judges, one judge
can resort to Article 142 for enforcement of his directions, the second judge
can do likewise for the enforcement of his directions. And even in a larger
Bench, a judge holding a minority view can issue his order under Article 142 E
although it may conflict with the order issued by the majority. This would put
this Court in an indefensible situation and lead to total confusion. Article 142
is not meant for such a purpose and cannot be resorted to in "this fashion.

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 F
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. G
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.

We, therefore, allow this review petition. The directions given by the H
+
500 SUPREME COURT REPORTS (1998] 2 S.C.R.

A learned judge relating to prostitution and/or its amelioration or eradication or
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
B 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.

C In view of this order, the application filed by the Union of India - I.A.
No. I is not pressed. It is accordingly disposed of. ·

N.J. Petition allowed.

1