Section 113 — Reference to High Court
Sometimes a court would rather ask than guess. § 113 lets any Court — subject to the prescribed conditions — state a case and refer a question for the High Court’s opinion, and the High Court may make such order as it thinks fit. The proviso turns one reference into a duty: where a case turns on the validity of a law the court thinks invalid, and no High Court or Supreme Court has yet said so, the court must refer it.
How to read Section 113
The discretionary reference
Any Court may state a case and refer a question for the High Court’s opinion (subject to the prescribed conditions); the High Court makes such order as it thinks fit.
The mandatory reference (proviso)
Where a pending case turns on the validity of an Act, Ordinance or Regulation, the court thinks it invalid, and no HC/SC has so declared — the court shall state a case and refer.
Why it must refer
A subordinate court cannot itself strike down a law. If it doubts a law’s validity, it must send the question up — it may not simply apply or ignore the law on its own view.
The bare Act
Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit:
→ Procedure: Order XLVI (reference). The discretionary power is “may”; the proviso’s validity reference is “shall”. Compare Art. 228 (High Court withdrawal of a case involving a substantial constitutional question).
1. The proviso and the Explanation were added by Act 24 of 1951, s. 2 (w.e.f. 1-4-1951) — to ensure that, after the Constitution, no subordinate court would treat a law as invalid without a reference to the High Court.
Key terms decoded
A court’s act of sending a question up to the High Court for its opinion — the court keeps the case but pauses for guidance.
To set out the facts and the question of law in a formal statement, so the High Court can answer it. (In the proviso, also the court’s opinion and reasons.)
The reference seeks the High Court’s answer to the question; the referring court then disposes of the case in light of it.
The power is exercised within the rules — chiefly Order XLVI, which sets out when and how a reference may be made.
The High Court’s wide power to answer, modify or dispose of the reference as it considers proper.
Whether the law is constitutionally / legally valid. A doubt of this kind triggers the proviso’s mandatory reference.
The court’s view that the law is void or has no effect — but it cannot act on that view alone; it must refer.
The reference is needed only if no binding court (the HC it is under, or the Supreme Court) has already declared the law invalid.
Defined to include a Regulation of the Bengal, Bombay or Madras Code, or a Regulation as defined in the General Clauses Act, 1897 (or a State’s General Clauses Act).
The picture — a court pauses and asks the High Court
§ 113 is the “let me ask” provision. Ordinarily a court may pause and put a question of law to the High Court for its opinion. But on the one question a subordinate court may not decide for itself — whether a law is valid — the proviso makes the reference a duty.
Section 113, part by part
The main rule — a discretion: any Court may state a case and refer a question for the High Court’s opinion; the HC orders as it thinks fit.
The proviso (added 1951) — a duty: on the one question a subordinate court may not decide for itself, a law’s validity, it shall refer. Four conditions must all hold.
The Explanation — a definition: it fixes what “Regulation” means for § 113, so the proviso’s reach is clear.
How the parts work as one body
A door you may open — and one you must
Connected provisions
Section 113 opens Part VIII — Reference, Review and Revision (§§ 113–115), the correctives beyond appeal. Reference looks up (§ 113); § 114 (review) looks in; § 115 (revision) looks down. Its procedure is Order XLVI, and the validity proviso is the civil-court counterpart of Article 228.