The Supreme Court’s nine-judge Constitution Bench judgment on what constitutes an “industry” under the Industrial Disputes Act, 1947, raises an important question that the judgment itself does not answer with sufficient clarity: does the Chief Justice of India’s reformulation of the 1978 Bangalore Water Supply test command a majority of the nine-judge bench?
That leaves the judgment with an unusual numerical problem: four judges favour the CJI’s reformulation; four reject it; and the tie-breaker judge does not answer the substantive question. The judgment does not expressly explain how this translates into a majority holding on the new test. But the opinion is explicitly a four-judge opinion. There is no indication in its opening that Justice Narasimha is joining it on this substantive question. Justice Narasimha goes even further in his criticism of the need for reformulation.
He notes that if the nine-judge bench itself declares that its new interpretation of Section 2(j) will have no bearing on Section 2(p) of the new Code, then the exercise of reformulating the old test becomes largely academic.
The CJI’s opinion represents a substantial departure from the expansive approach in Bangalore Water Supply & Sewerage Board Vs A Rajappa, the 1978 seven-judge judgment that evolved the “triple test”. His conclusion is particularly significant, as it indicated that Bangalore Water Supply should continue to govern pending disputes under the repealed law, rather than the court creating “a third set of principles” applicable only to those cases. He says the new Code must be interpreted independently. Also Read I ‘Having regard to age’: 105-year-old murder convict given Supreme Court relief to ‘live’ as free man That is why simply adding Justice Narasimha to the CJI’s four-judge opinion and calling the result “5:4” is difficult to reconcile with the text of the judgment.
