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When the case entails a considerable query of regulation it ought to be referred to a five-judge Constitutional Bench

When the case involves a substantial question of law it should be referred to a five-judge Constitutional Bench written by Shatakshi Kakkar student of Symbiosis Law School, NOIDA



The writ petition brought before the Hon’ble Supreme Court in this matter challenges the constitutional validity of the latest amendment of the Indian Constitution i.e. The Constitution (One Hundred and Third Amendment) Act,2019 through which the addition of Article 15(6) and Article 16(6) took place thereby making provisions for the reservation of people of the economically weaker sector as well in the educational as well as in the employment sector.


The following issues arose in the above case before the Hon’ble Supreme Court:

  • Whether the above-impugned matter should be dealt with by a Constitutional Bench of five judges since it contains a substantial question of law?
  • Whether or not the Amendment Act violates the basic structure doctrine?
  • Whether the Amendment Act crosses the limit of only 50% reservation which has already been upheld in various judgments of the Supreme Court?


The claim of the petitioners was upheld by the Hon’ble Supreme Court. Relying on Article 145(3) of the Constitution of India as well as Order XXXVIII of the Supreme Court Rules, 2013 the Court decided that the main issue of the following case involves a substantial question of law and fulfills the prerequisites of both the above provisions and hence they should be heard by a Constitutional Bench of five judges.
Since the case involves a substantial question of law, the present bench found it beneficial to not decide upon the other two issues of the case i.e. the questions that whether or not the new amendment violates the basic structure and crosses the pre-established limits of only 50% reservation. It found it fit to transfer the case to a larger bench and let it decide the issue.
Hence, the present bench transferred this writ petition and another batch of cases relating to the same issue to a five-judge Constitutional Bench to rightfully decide the case and the substantial issue at hand.


What actually construes as the ‘substantial question of law’ is not given anywhere in ink and paper but has given a somewhat definition through various judgments announced by the Supreme Court over the period. Article 145(3) of the Indian Constitution makes it clear that any case involving a substantial question of law should be adjudged by a Constitutional Bench of five judges. Moreover, the Court in the following case also took into consideration the precedent of M. Nagaraj & Ors. V. Union of India & Ors. (2006) 8 SCC 212, in which it was held in order to examine ‘amendments to equality provisions of the Constitution’, the matter should be heard by a Constitutional Bench. The following amendment being of nature to change the equality provisions of the Constitution, it is best that the matter should be decided by a Constitutional Bench. Hence the following judgment is logically and legally sound.

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