Section 436, BNSS 2023 — the substance

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 therein, 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, but 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.

📖 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 (seven Judges)

Facts: The question was whether the power of judicial review over the constitutional validity of legislation may be exercised by bodies other than the High Courts and the Supreme Court, and where that power ultimately resides.

Held: The Bench of seven Judges held that the power of judicial review over legislative action, vested in the High Courts under Article 226 and in the Supreme Court under Article 32, is an integral and essential feature of the Constitution, constituting part of its basic structure. The Court held that the jurisdiction so conferred cannot be ousted or excluded, and that no other body can be given the exclusive power to test the constitutional validity of a statutory provision. It held that while other bodies may perform a supplemental role and may, in a suitable case, examine such a question subject to scrutiny by the High Court, the ultimate authority to declare a law invalid rests with the constitutional courts. The Court reasoned that the power exists to keep every organ within the limits the Constitution assigns, and that a power so central cannot be dispersed among bodies which are themselves subject to supervision.

Ratio: The power of judicial review over legislative action, vested in the High Courts and the Supreme Court, is part of the basic structure and cannot be ousted. The ultimate authority to declare a law invalid rests with the constitutional courts.

📖 State of Maharashtra v. Sindhi @ Raman, (1975) 1 SCC 647

Facts: A Sessions Court passed a sentence of death and submitted the proceedings for confirmation. The question was the nature of the High Court’s function on such a reference, and the extent of the examination it is required to make.

Held: The Supreme Court held that on a reference for confirmation of a sentence of death, the High Court is under a duty to consider the proceedings in all their aspects and to come to its own independent conclusion on the material — both as to the guilt of the accused and as to the sentence. The Court held that the High Court does not merely review the sentence or examine whether the Sessions Judge went wrong: it must satisfy itself, on its own appraisal of the entire evidence, that the conviction is right and that the extreme penalty is called for. It held that the duty arises whether or not the convict appeals — the reference being independent of any appeal — and that where both are before the Court they should be heard together and disposed of by a common judgment, the Court dealing with the reference on its own footing. The Court emphasised that the requirement of confirmation exists because a sentence of death is irreversible, and that the examination must be correspondingly thorough.

Ratio: On a reference for confirmation the High Court must consider the proceedings in all aspects and reach its own independent conclusion on guilt and sentence, whether or not the convict appeals. The requirement exists because a sentence of death is irreversible.

⚠ Four points on references

Section 436 is not discretionary. Where the conditions are satisfied — a question of validity, necessary for the disposal, on which the Court is of opinion that the provision is invalid, and which has not been so declared — the Court shall state a case and refer it.

And the referring Court is bound by the answer. It shall dispose of the case conformably to the decision of the High Court.

Section 407 operates whether or not there is an appeal. Even where the convict does not appeal, the High Court must satisfy itself on its own examination of the entire record that the conviction is right and the sentence called for.

And where both are before it, they are heard together and disposed of by a common judgment — the Court dealing with the reference on its own footing, so that the confirmation does not become a mere consequence of the appeal being dismissed.

The position stated shortly

1. An appeal is moved by a party and is optional. A reference is made by the Court itself and is not optional.

2. An appeal takes the whole case; a reference takes a specific question — the validity of a law, or the sentence of death.

3. Section 436 applies where a case involves a question as to the validity of an Act, Ordinance or Regulation, necessary for the disposal, on which the Court is of opinion that it is invalid but which has not been so declared.

4. The Court shall state a case setting out its opinion and reasons, and the referring Court shall dispose of the case conformably to the High Court’s decision.

5. Section 436 exists because the power to declare a law invalid belongs to the constitutional courts, and is part of the basic structure: L. Chandra Kumar.

6. A subordinate court cannot declare a law invalid — but neither can it be required to apply a law it believes void. The reference resolves that difficulty.

7. Section 407 requires a sentence of death to be submitted to the High Court, and it shall not be executed unless confirmed.

8. On such a reference the High Court must consider the proceedings in all aspects and reach its own independent conclusion on guilt and sentence: Sindhi.

9. That duty arises whether or not the convict appeals, the reference being independent of any appeal.

10. Where both are before the Court they are heard together and disposed of by a common judgment, the reference being dealt with on its own footing.