Report No. 162

"Second Recommendation:

5.3.1. The question that requires to be addressed to is as regards the need for evolving suitable machinery so as to maintain, strengthen and restore uniformity on questions of law. For, the present constitutional and statutory provisions that are designed to maintain such uniformity operate only when the matter reaches the highest judiciary by way of appeal by the aggrieved party or the Legislature finds time to attend to the conflict of decisions.

If one keeps aside certain special provisions, such as the advisory jurisdiction of the Supreme Court, one finds that a point on which there is want of uniformity can come up for decision only when a litigant invokes the jurisdiction of the Supreme Court. In other words, if a litigant who has failed in the High Court on a question of law cannot afford to go to the Supreme Court, or does not, for any reason, propose to approach the Supreme Court, then the ruling of the High Court stands. The conflict of decisions on a particular point of law will then remain as it is. This is not a satisfactory position.

5.3.2. To allow a conflict of views between High Courts to arise and languish in comfort for many years, even decades, before resolving it 'if the conflict is carried to the Supreme Court and ironed-out in due course 'when' the matter happens to come up for hearing there, is less than an exemplary solution. A much better, much speedier, and much more satisfactory solution which will systematically address this problem deserves to be evolved. And such is the present endeavour of the Commission.

5.3.3. The contours of the suggested solution are:

(1) When High Court A is faced with a problem pertaining to an all-India law (excluding the Constitution of India) on which High Court B has already made a pronouncement, if High Court A holds a view different or inconsistent from the view already pronounced by High Court B, High Court A, instead of making its own pronouncement, shall make a reference to the Supreme Court. The order of reference shall be accompanied by a reasoned opinion propounding its own view with particular specification of reasons for differing from the view pronounced by High Court B.

(2) (a) The party supporting the reference may arrange for appearance in the Supreme Court but will not be obliged to do so.

(b) The said party will have the option of submitting written submissions supplementing the reasoning embodied in the order of reference.

(c) The party opposing the reference shall also have a similar option for engaging an advocate in the Supreme Court and submitting written submissions, inter alia, to counter the written submissions, if any, submitted by the other side.

(3) The Supreme Court may require the Government of the State in which the High Courts A and B are situated to appoint at the State's cost any advocate from the State panel of lawyers of the concerned States to support by oral arguments the view points of the respective High Courts.

(4) All such references may be assigned to a Special Bench which may endeavour to dispose of all such references within six months of the receipt of the references in the Supreme Court in view of the inherent urgency to ensure uniformity.

(5) If any SLP or appeal is already pending on the same point from judgment of High Court B or any other High Court, the said matter may be clubbed alongwith the reference. Any interested party may be permitted to appear as interveners.

(6) The Supreme Court may return the reference if it appears that the parties are acting in collusion.

(7) The Attorney General may be served with a copy of the reference and he shall be entitled to urge the point of view of the Central Government in regard to the relevant provision of the concerned Central Statute, if so desired.

(8) The referring High Court shall finally dispose of the appeal on all points in the light of the decision of the Supreme Court in regard to the referred point.

(9) The decision of the Supreme Court in the reference will have no impact or effect on the decision of High Court B in the event of the Supreme Court upholding the reference in case it has become final between the parties by-reason of the matter not having been carried to the Supreme Court and the said decision shall remain undisturbed as between the parties in High Court B.

5.3.4 In order to give effect to the aforesaid recommendation, a suitable legislation may have to be enacted. A draft of the suggested legislation has been appended for the sake of facilitating the task."