What is a reference?


Article 228 of the Constitution of India provides for transfer of certain cases to the High Court. This brings the basic outlook of the provisions regarding reference. In simple words, the term reference means referring a certain case to the superior court for it opinion. This is basically a power vested in the subordinate courts both civil and criminal. These opinions can be sought by the court while trying a suit.

Provisions regarding the reference are dealt with in section 113 of the Code of Civil Procedure, 1908. While Section 395(1) of the Code of Criminal Procedure 1973 provides that if a case is pending before any court which involves question as to validity of an Act, ordinance or regulation, etc, may be referred for the decision of the High Court. For the reference made in civil proceeding, it is essential to understand how is it made along with the jurisprudential aspect, what conditions are required to be fulfilled and what are the powers and duties of the court that is referring a case and the court to which a case is referred to.

The jurisprudential aspect behind the introduction of the same is to remove error that is anticipated by a court of subordinate jurisdiction and henceforth referring the same to the court of higher jurisdiction. It has been observed that such provisions also ensure that the validity of a legislative provision under an Act, Ordinance or Regulation should be interpreted and decided by the highest court in the state.[1] There are certain conditions which must be satisfied which are prescribed under Order XXXXVI Rule 1 which are firstly, the existence of a pending suit or appeal in which the decree is not subject to appeal or pending proceeding in execution of such decree. Secondly, a question of law must have arisen in such suit, appeal or proceeding which relates to the validity of any Act, Ordinance or Regulation or any other questions. Thirdly, the court which is trying the suit or appeal or executing the decree must entertain a reasonable doubt on such question.

The existence of a reasonable ground on the part of a subordinate court is paramount for such court to make a reference. But if the same question is decided by the High Court then it opens no scope for existence of the reasonable doubt on the same question by the subordinate court. At the same time, if there exist a reasonable doubt on part of a higher court regarding the same, such opens room for the subordinate court to make a reference of the said case.

 But it must be understood that the reference has to be made if there are pre-existing circumstances which involves, if it is necessary to decide such question in dispute in order to dispose off the case or if the subordinate court is of view that the impugned Act, Ordinance or Regulation is ultra vires or lastly, if there is no determination either by the Supreme Court or by the High Court to which such court is subordinate that such Act, Ordinance or Regulation is ultra vires. It is also essential that only a court can make a reference on application of parties or suo moto, on its own discretion, having fulfilled abovementioned prerequisites. It was observed a tribunal or persona designata cannot be said to be a court and no reference can be made by them.[2]

There are some powers and duties which re conferred upon both the subordinate court and the higher court while making a reference and taking it, respectively. As it has already been mentioned that subordinate court has to comply with the conditions are prerequisites for making such reference which ranges from nature of litigation that must be a suit, appeal or execution proceeding to the doubt which arises must be based on question of law and not question of fact. Then comes the apparent requirement of court to make sure such question must have been arisen between parties to the suit henceforth leaves no scope for a reference to be made on a hypothetical question which is based on pillars of may and might on a point likely to arise in future.[3]

Since the powers of the subordinate court are observed to be rather obligatory since a number of restrictions in the form of conditions exist to exercise its jurisdiction, it can be said that the high court holds more powers in that aspect. Not only the question which is referred to it by the subordinate court, but also any new aspect of law in such case so referred can be considered by the High Court.  It is a consultative power of the High Court and therefore after looking into to matter may answer or may refuse to answer or even quash the question so referred by the subordinate court. The effect of answering it will amount disposal of the case. If the High Court answers the question in favour of the plaintiff, the decree will be confirmed but if it is answered against him the suit will be dismissed. But the High Court has no power of making any orders or suggestions regarding the case so referred.[4]

While all these points of procedure gives information about reference, it is equally important to distinguish the term reference from appeal, review and revision since all seem synonymous in a layman’s terminology. It is different from appeal since such power to make a reference is vested in a court and not in a suitor. At the same time, appeal can be made to a superior court and not only confined to the High Court which is made on a decree or appealable order and not the pending suit. Review is altogether based on different grounds which is made by an aggrieved party and based too, on a decree. The ground for revision is based on jurisdictional errors and not on question of law. These are either invoked by the aggrieved party or by High Court suo moto. All these findings compiles the provisions regarding the reference.


[1] Public Prosecutor v. B. Krishnasami AIR 1957 AP 567

[2] Nanak Chand v. Estate Officer AIR 1969 P&H 304

[3] Ranganath v. Hanumantha (1984) 1 Kant I.C. 243

[4] Municipal Corporation of City v. Shivshanker Gaurishanker AIR 1999 SC 2874

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