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PETITIONER: 1. GAURAV JAIN, 2. SUPREME COURT BAR ASSOCIATION

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       30/03/1998

BENCH: SUJATA V.MANOHAR, S.P. KURDUKAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T 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. and  reported in 1997 (8) SCC 114. By an order dated 5th  of January,  1998 this  review petition  has been directed to  be heard  by a  Bench of  there 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  the  writ petition, the  petitioner had  asked  for  establishment  of separate educational  institutions  for  t  he  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 ben 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

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    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 the  issue is so profound      certainly involving  hearing of the      Union   of    India    and    State      Governments with  respect to  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  has to  say on the      directions proposed  to  be  issued      referring to  the provisions  of to      be   issued    referring   to   the      provisions  of   Article  142   and      145(5) of the Constitution"                     [underlining ours]      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  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 to enforce his order in its entirety even in respect of that portion of the

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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 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 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  judges and Division Courts. Clause (5) of Article 145 provides as follows:      " 145(5):  NO judgment  and no such      opinion shall  b delivered  by  the      Supreme   Court   save   with   the      concurrence of  a majority  of  the      judges 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 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. 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  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 follows:      "1.    (1):  Every  petition  under      Article 35 of theConstitution 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  heard   and      decided by a Division court of less      than  five   judges,  and,   during      vacation,  by  the  Vacation  Judge      sitting singly." Rules 10 (1) and (2) of Order XXXV are as follows:      "  10(1)   :   Unless   the   court      otherwise  orders,  the  rule  nisi      together  with   a  copy   of   the      petition and  of the  affidavit  in

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    support thereof  shall be served on      the  respondent   not   less   than      twenty-one    days    before    the      returnable     persons     directly      affected and  on such other persons      as the Court may direct.      (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 opposition."      Therefore, counter  affidavits  can  be  filed  by  the respondents in  a public  interest litigation,  and  further affidavits in rejoinder etc. can also be filed.      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 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 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.      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      as to discovery, etc.-      (1)  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 b      enforceable     throughout      the      territory of  India in  such manner      as may  be prescribed  by or  under      any law  made  by  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 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

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to giving  of security  in a  petition under Article 32. The Rule was  sought to  be justified, inter alia, on the ground that the  powers conferred  on this  Court under Article 142 were very  wide and  could not  be controlled by Article 32. Negativing this  contention, this Court said, "The powers of this Court  under Article  142(1) 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 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  Article 14291)  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 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 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  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.      We,  therefore,   allow  this   review  petition.   The directions  given   by  the   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 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.      In view of this order, the application filed by the

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Union of India - I.A. No. 1 is not pressed. It is accordingly disposed of.