Reference to the High Court
Chapter Sixty-Three
Syllabus topic 3.4, "Reference and Revision - Section 395 to 405"
Pages 427 to 430 of 699
In one line
A subordinate court that thinks a law is invalid does not simply disregard it; it states a case and asks the High Court.
In exam wording: sections 436 and 437 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provide for a reference to the High Court where a case involves the validity of an Act, Ordinance or Regulation, and, in the case of a Court of Session, any question of law, and for the disposal of the case according to the High Court's decision.
Why the law has this at all
Consider what a Magistrate is being asked to do when an accused says the statute under which he is charged is void.
He cannot ignore the argument, because if the law is void the prosecution collapses. He cannot decide it and act on it either, because a Magistrate holding an Act of a legislature invalid, in a district court, on his own authority, would produce a country in which the same statute is valid in one district and void in the next. And he cannot leave it to an appeal, because the trial has to be conducted now, under some law or none.
So the law gives him a third course. He states a case: he sets out the question, his opinion on it, and his reasons, and sends it to the High Court, which decides. Then he disposes of the case conformably to that decision.
Notice what triggers the duty in sub-section (1). It is not doubt. It is the Court's opinion that the provision is invalid or inoperative, on a question whose determination is necessary for the disposal of the case, where neither the High Court nor the Supreme Court has already declared it so. A court that thinks the Act valid decides the case and moves on. A court that thinks it invalid, and where the point has already been so declared, follows the declaration. The reference exists for the gap between them.
Some words this chapter uses
To state a case is to draw up the question, the Court's opinion and its reasons, in a form the High Court can answer.
Regulation, by the Explanation to section 436(1), means a Regulation as defined in the General Clauses Act, 1897, or in the General Clauses Act of a State.
Inoperative covers a provision that is not void as enacted but cannot operate, for example one never brought into force or covered by a repugnant central law.
Section 436: the reference
Sub-section (1), the compulsory reference. Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation, or of any provision contained in one:
Reference to the High Court
- the determination of which is necessary for the disposal of the case; and
- is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative; and
- it has not been so declared by the High Court to which that Court is subordinate, or by the Supreme Court,
the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court.
The Explanation. "Regulation" means any Regulation as defined in the General Clauses Act, 1897, or in the General Clauses Act of a State.
Sub-section (2), the Court of Session's discretion. A Court of Session may, if it thinks fit, in any case pending before it to which sub-section (1) does not apply, refer for the decision of the High Court any question of law arising in the hearing of the case.
Sub-section (3), the accused meanwhile. Any Court making a reference under sub-section (1) or (2) may, pending the decision of the High Court, either commit the accused to jail or release him on bail to appear when called upon.
The two sub-sections differ in three ways at once, and an answer should say all three. Who: any Court, against a Court of Session only. What: the validity of a law, against any question of law. Whether: shall, against may.
Section 437: what follows
Sub-section (1). When a question has been so referred, the High Court shall pass such order thereon as it thinks fit, and shall cause a copy of that order to be sent to the Court which made the reference, which shall dispose of the case conformably to the said order.
Sub-section (2). The High Court may direct by whom the costs of the reference shall be paid.
The words dispose of the case conformably are the point of the whole chapter. The referring Court does not reconsider the answer; it applies it.
A worked example
A Judicial Magistrate is trying a prosecution under a State Act. The accused argues that the Act is beyond the State legislature's competence.
Is a reference required? Only if three things are true. The determination must be necessary for disposing of the case; the Magistrate must be of opinion that the Act is invalid or inoperative; and it must not already have been so declared by his High Court or by the Supreme Court. If all three hold, section 436(1) says he shall state a case and refer it.
Suppose he thinks the Act perfectly valid. No reference. He decides the point and goes on with the trial; the accused's remedy is an appeal.
Reference to the High Court
Suppose the High Court has already struck the provision down. No reference either. There is nothing left to refer; he follows the declaration.
What does he send? A case stated, setting out his opinion and the reasons for it.
What happens to the accused meanwhile? The Magistrate may commit him to jail or release him on bail to appear when called upon, section 436(3).
Now change the court. A Court of Session is trying a case in which a difficult question of the construction of a section arises. No question of validity is involved, so sub-section (1) does not apply. The Court of Session may, if it thinks fit, refer that question of law to the High Court, sub-section (2). A Magistrate in the same position could not.
The High Court answers. It passes such order as it thinks fit, sends a copy to the referring Court, and that Court disposes of the case conformably to the order, section 437(1). The High Court may also direct who pays the costs of the reference, sub-section (2).
Distinctions
| Section 436(1) | Section 436(2) | |
|---|---|---|
| Which Court may refer | Any Court | A Court of Session only |
| What may be referred | The validity of an Act, Ordinance or Regulation or a provision of one | Any question of law arising in the hearing |
| Is it a duty | Yes: the Court shall state a case | No: it may, if it thinks fit |
| Precondition | Determination necessary for the disposal; the Court's opinion of invalidity; no prior declaration by the High Court or Supreme Court | The case is one to which sub-section (1) does not apply |
| Reference, ss.436 to 437 | Appeal, Chapter XXXI | Revision, ss.438 to 445 | |
|---|---|---|---|
| Who moves it | The Court itself | A party | A party, or the superior Court on its own |
| Stage | While the case is pending | After the judgment or order | After a finding, sentence or order |
| What goes up | A question, on a case stated | The whole case | The record |
| What comes back | An order on the question, to be applied | A decision of the appeal | An order in exercise of revisional powers |
What this does NOT mean
A reference is not an appeal. No party files it, nothing is decided against anybody, and what goes up is a question, not the case.
Doubt alone does not require a reference. Sub-section (1) needs the Court's opinion that the provision is invalid or inoperative.
A Magistrate has no general power to refer questions of law. Sub-section (2) is confined to a Court of Session.
A reference does not stop everything. The Court may commit the accused to jail or release him on bail pending the High Court's decision.
Reference to the High Court
And the referring Court does not get a second view. Section 437(1) obliges it to dispose of the case conformably to the High Court's order.
Quick revision
- 436(1): any Court, satisfied that the case involves the validity of an Act, Ordinance or Regulation or a provision of one, whose determination is necessary for the disposal of the case, and being of opinion that it is invalid or inoperative where it has not been so declared by its High Court or the Supreme Court, shall state a case with its opinion and reasons and refer it.
- Explanation: Regulation as defined in the General Clauses Act, 1897 or a State General Clauses Act.
- 436(2): a Court of Session may refer any question of law in a case to which sub-section (1) does not apply.
- 436(3): pending the decision, the referring Court may commit the accused to jail or release him on bail to appear when called upon.
- 437: the High Court passes such order as it thinks fit, sends a copy to the referring Court, which disposes of the case conformably; and the High Court may direct by whom the costs of the reference are paid.
Test yourself
1. When is a Court bound to make a reference? When the case involves a question as to the validity of an Act, Ordinance or Regulation or a provision of one, its determination is necessary for the disposal of the case, the Court is of opinion that it is invalid or inoperative, and it has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, section 436(1).
2. What does the referring Court send up? A case stated, setting out its opinion and the reasons for that opinion.
3. Can a Magistrate refer a pure question of law? No. Section 436(2) confines that discretion to a Court of Session, and only in a case to which sub-section (1) does not apply.
4. What happens to the accused while the reference is pending? The Court may either commit him to jail or release him on bail to appear when called upon, section 436(3).
5. Is the referring Court bound by the answer? Yes. Section 437(1) requires it to dispose of the case conformably to the High Court's order.
6. Who pays for the reference? The High Court may direct by whom the costs of the reference shall be paid, section 437(2).
7. What does "Regulation" mean in section 436? Any Regulation as defined in the General Clauses Act, 1897, or in the General Clauses Act of a State, per the Explanation to section 436(1).
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.