Section 436 – Reference to High Court

Introduction

Section 436 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the reference of cases to the High Court.

The provision applies where a subordinate court is required to refer a case to the High Court because it has a doubt regarding the validity of an Act, Ordinance, Regulation, or provision of an Act, Ordinance, or Regulation.

The purpose of the provision is to ensure that subordinate courts do not themselves declare such legislation invalid on constitutional grounds when the prescribed conditions for reference to the High Court are satisfied.

Meaning of Section 436

Section 436 provides a mechanism through which a Court may refer a case to the High Court when it forms an opinion that a particular statutory provision is invalid or inoperative, but the provision has not already been declared invalid by the High Court or the Supreme Court.

The reference enables the High Court to determine the legal question concerning the validity of the relevant provision.

The case may be kept pending before the subordinate court until the High Court decides the referred question.

Object and Purpose

The primary purpose of Section 436 is to maintain judicial consistency and constitutional discipline in criminal proceedings.

A subordinate court may encounter a statutory provision that appears to be unconstitutional or invalid. Instead of independently declaring the provision invalid, the court refers the question to the High Court.

This mechanism:

• prevents conflicting decisions by subordinate courts;
• enables constitutional questions to be decided by the appropriate superior court;
• promotes uniformity in the interpretation of legislation; and
• ensures that criminal proceedings are dealt with according to the law as finally determined by the competent court.

When Does Section 436 Apply?

The provision becomes relevant when:

1. a case is pending before a Court;
2. the Court has to decide a question concerning the validity of an Act, Ordinance, Regulation, or provision contained in one of them;
3. the Court is of the opinion that the relevant legislation or provision is invalid or inoperative;
4. the provision has not already been declared invalid by the High Court or the Supreme Court; and
5. the Court considers that the question should be referred to the High Court.

Important Conditions

1. A Case Must Be Pending

There must be a proceeding before the subordinate court in which the question of validity arises.

The reference is therefore connected with an actual judicial proceeding.

2. Question of Validity Must Arise

The issue must concern the validity of:

• an Act;
• an Ordinance;
• a Regulation; or
• a provision contained in an Act, Ordinance, or Regulation.

The provision is therefore specifically concerned with legal validity rather than ordinary factual disputes.

3. The Court Must Form an Opinion of Invalidity

The subordinate court must be of the opinion that the relevant legislation or provision is invalid or inoperative.

This is an important condition for making the reference.

4. The Provision Must Not Already Have Been Declared Invalid

The reference mechanism applies where the relevant provision has not already been declared invalid by the High Court or the Supreme Court.

If the competent constitutional court has already declared the provision invalid, the subordinate court does not need to initiate the same reference process.

Procedure for Reference

The basic procedure under Section 436 can be understood as follows:

1. A case is pending before a subordinate court.
2. A question arises regarding the validity of an Act, Ordinance, Regulation, or statutory provision.
3. The court forms the opinion that the relevant provision is invalid or inoperative.
4. The court examines whether the provision has already been declared invalid by the High Court or Supreme Court.
5. If it has not, the court refers the question to the High Court.
6. The subordinate court deals with the case in accordance with the decision of the High Court on the referred question.

Role of the High Court

The High Court is the authority that determines the legal question referred to it.

The reference therefore allows the High Court to examine the validity of the statutory provision and provide the legal determination necessary for disposal of the case.

The subordinate court then proceeds consistently with the High Court’s determination.

What Happens to the Pending Case?

When a reference is made, the subordinate court does not finally dispose of the case on the constitutional question that has been referred.

The case remains subject to the decision of the High Court on the referred question.

After the High Court gives its decision, the subordinate court proceeds with the case in accordance with that decision.

Importance of Constitutional Validity

Section 436 is particularly significant where a criminal proceeding depends upon the operation of a statutory provision whose constitutional validity is questioned.

For example, if a subordinate court believes that a statutory provision relevant to a criminal case is unconstitutional, the court does not simply disregard the provision on its own authority under the reference mechanism.

Instead, where the statutory conditions are satisfied, the question is placed before the High Court.

This ensures that questions involving the validity of legislation receive authoritative judicial consideration.

Section 436 and Judicial Hierarchy

The provision reflects the hierarchical structure of the Indian judicial system.

A subordinate criminal court is required to follow the law declared by the High Court and the Supreme Court. Where a serious question concerning the validity of legislation arises and has not already been settled by those courts, Section 436 provides a mechanism for obtaining an authoritative determination.

This helps avoid inconsistent constitutional rulings from different subordinate courts.

Important Distinction

Reference vs Appeal

A reference is not the same as an appeal.

An appeal generally arises after a court has passed a judgment or order and a party seeks appellate review.

A reference under Section 436 arises because a subordinate court itself encounters a question concerning the validity of legislation and refers that question to the High Court.

Reference vs Revision

A reference is also different from revision.

Revision generally involves supervisory examination of the legality or propriety of proceedings or orders by a superior court.

Section 436 specifically provides a mechanism for referring a question concerning the validity of legislation to the High Court.

Example

Suppose a criminal case is pending before a subordinate court. The accused challenges the validity of a particular statutory provision that is relevant to the case.

After considering the issue, the court forms the opinion that the provision may be invalid or inoperative. The provision has not previously been declared invalid by the High Court or Supreme Court.

Instead of finally determining the constitutional validity itself, the court makes a reference to the High Court.

The High Court examines the question and provides its decision. The subordinate court then proceeds with the criminal case in accordance with that decision.

Why Is This Provision Important?

Section 436 is important because it promotes:

• uniformity in constitutional interpretation;
• respect for judicial hierarchy;
• consistent application of criminal law;
• avoidance of conflicting decisions by subordinate courts; and
• authoritative determination of questions concerning statutory validity.

BNSS and CrPC

Section 436 of the BNSS corresponds to Section 395 of the Code of Criminal Procedure, 1973 (CrPC).

The basic mechanism remains substantially similar.

Both provisions provide for reference to the High Court where a subordinate court considers that a statutory provision relevant to the case is invalid or inoperative and the provision has not already been declared invalid by the High Court or Supreme Court.

Relationship with Other BNSS Provisions

Section 436 forms part of the BNSS provisions concerning reference and revision.

The immediately connected provisions include:

• Section 436: Reference to High Court.
• Section 437: Disposal of case according to decision of High Court.
• Section 438: Calling for records to exercise powers of revision.
• Section 439: Power to order inquiry.
• Section 440: Sessions Judge’s powers of revision.
• Section 441: Power of Additional Sessions Judge.
• Section 442: High Court’s powers of revision.

Common Confusions

Can every subordinate court declare an Act unconstitutional?

Section 436 provides a specific mechanism for referring a question concerning the validity of legislation to the High Court where the statutory conditions are satisfied.

Is a reference made only after the case is completed?

No.

The reference arises during the pendency of a case when the relevant question of validity arises.

Does the High Court decide the entire criminal case?

No.

The reference concerns the legal question referred to it. The subordinate court continues with the case in accordance with the High Court’s decision.

Does Section 436 apply if the Supreme Court has already declared the provision invalid?

The section specifically concerns cases where the relevant provision has not already been declared invalid by the High Court or the Supreme Court.

Topic at a Glance

• Topic: Reference to High Court
• BNSS Section: Section 436
• Nature: Procedural
• Purpose: Reference of questions concerning validity of legislation
• Authority making reference: Subordinate Court
• Authority deciding reference: High Court
• Relevant subject: Validity of an Act, Ordinance, Regulation, or statutory provision
• Important condition: Provision must not already have been declared invalid by the High Court or Supreme Court
• CrPC equivalent: Section 395 CrPC

Quick Revision

• Section 436 BNSS deals with reference to the High Court.
• It applies when a question concerning the validity of legislation arises in a pending case.
• The subordinate court must form the opinion that the relevant provision is invalid or inoperative.
• The provision must not already have been declared invalid by the High Court or Supreme Court.
• The question is referred to the High Court for determination.
• The subordinate court proceeds with the case according to the High Court’s decision.
• The provision promotes uniformity and respect for judicial hierarchy.
• Section 436 substantially corresponds to Section 395 of the CrPC.

ALSO READ: Section 435 – Abatement of appeals

Conclusion

Section 436 of the BNSS provides an important procedural mechanism for referring questions concerning the validity of legislation to the High Court. It ensures that subordinate courts do not create conflicting determinations regarding the validity of statutory provisions and allows such questions to receive authoritative consideration by the High Court. The provision therefore strengthens consistency, judicial discipline, and the orderly functioning of the criminal justice system.