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“In that decision [on Karnan] (referred to in R.P. Luthra), two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the Memorandum of Procedure. Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices’ Conference and by the Full Court. Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench,” thus contended the four judges of Supreme Court in an open letter to the Chief Justice of India.

Constitution bench is the name given to the benches of the Supreme Court of India which consist of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India. Article 145(3) in The Constitution Of India 1949 states as follows: (3) The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five: Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.

The scope of Article 145(3) was determined upon by the Apex Court in Rao Shiva Bahadur Singh v. State of Vidhya Pradesh, (1955) 2 SCR 446, where in the opinion penned by S R Das, J (as he then was), it was held that only substantial questions involving interpretation of the Constitution needed to be heard by a Constitution Bench, and any other ancillary questions could be referred back to a Division Bench to decide.