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Disciplining Division Benches of Two Judges of the Supreme Court
by T.R. Andhyarujina*
Cite as : (2004) 6 SCC (Jour) 85
In two rulings, two Constitution Benches of five Judges presided over by Bharucha, C.J. in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha1 and Pradip Chandra Parija v. Pramod Chandra Patnaik2 have ruled that it was improper for a Division Bench of two Judges to refer the correctness of a judgment of a five-Judge Bench for reconsideration by another Bench of five Judges as in Bharat Petroleum case1 or for a Bench of two Judges to refer the correctness of a decision of three Judges to a large Bench of five Judges as in Parija case2.
According to these rulings, “judicial discipline and propriety” obliged a Bench of two Judges to follow the judgment of larger Benches. However, it was ruled, that if the two Judges concluded that the judgment of a larger Bench
“is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified.” (Parija case2, SCC p. 4, para 6)
It is respectfully submitted that these rulings are not correct.
In the first place the rulings are directly contrary to the judgment of a Constitution Bench in Union of India v. Raghubir Singh3. In that case Pathak, C.J. speaking for a unanimous court, after a detailed discussion on the necessity of precedents of the Court to be followed in the interest of consistency and certainty, held that a pronouncement of law by a Division Bench of the Court was binding on a Division Bench of the same or small number of Judges, nevertheless, it was held: (SCC para 29)
In view of the nature and potential of the questions raised in these cases there was sufficient justification for the two learned Judges referring these cases to a large Bench for reconsideration of the question decided by a three-Judge Bench.
In the result the Constitution Bench overruled the three-Judge Bench judgments and preferred the view of the Bench of two Judges.
The rulings in Bharat Petroleum1 and Parija2 are, therefore, per incuriam of the considered judgment of another Constitution Bench of five Judges.
Secondly, the practice in the Supreme Court does not support the rulings. There are several cases in which a Bench of two Judges has referred the judgment of larger Benches for reconsideration by another Bench:
(1) A Bench of two Judges in Bachan Singh v. State of Punjab4 found that the observations in the decision of three Judges in Rajendra Prasad v. State of U.P.5 were in conflict with the decision of a Constitution Bench in Jagmohan Singh v. State of U.P.6 which had held the death penalty to be constitutional and thereupon referred the case to the Chief Justice for constituting a larger Bench to resolve the doubts and difficulties pointed out by the Judges. A Constitution Bench thereupon reaffirmed the constitutionality of the death penalty.7
(2) A Bench of two Judges differed from the directions given by the Constitution Bench in R.S. Nayak v. A.R. Antulay8 and referred them to a Bench of seven Judges, which later set aside the directions in A.R. Antulay v. R.S. Nayak9. The Bench of two Judges who referred the correctness of the Constitution Bench decision to a larger Bench specifically rejected the submission that the judicial discipline required them not to make the reference.10
(3) The correctness of the Constitution Bench judgment in Sabhajit Tewary v. Union of India11 was doubted by a two-Judge Bench and referred to a Bench of five Judges which reversed it in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology12, a Bench presided over by Bharucha, C.J.
(4) A Bench of two Judges in K.S. Pariapoornan v. State of Kerala13 referred the correctness of a judgment of three Judges in Union of India v. Zora Singh14 which was considered and overruled by a Bench of five Judges in K.S. Paripoornan v. State of Kerala15.
(5) A two-Judge Bench in FCI v. Transport and Dock Workers Union16 doubted the correctness of the decision of a three-Judge Bench in Air India Statutory Corpn. v. United Labour Union17 and referred it to a larger Bench of five Judges which overruled it in Steel Authority of India Ltd. v. National Union Waterfront Workers18.
(6) Recently on 15-7-2004 in P.A. Inamdar v. State of Maharashtra19 a Bench of two Judges referred the doubts as to “the clarifications” given by a five-Judge Bench in Islamic Academy of Education v. State of Karnataka20 and the eleven-Judge Bench judgment in T.M.A. Pai Foundation v. State of Karnataka21 to a larger Bench having regard to the controversy in these cases.
The position in the Supreme Court in relation to Benches is unlike that in the case of the Court of Appeal in UK. The Court of Appeal is one court though it usually sits in two or three divisions and each division has coordinate jurisdiction but the full court has no greater powers or jurisdiction than any division of the court (see Young v. Bristol Aeroplane Co. Ltd.22). In the Indian Supreme Court a hierarchy of Benches within the Court is recognised as a matter of practice and is now crystallised as a rule of law. This was settled in the Constitution Bench decision23 of A.R. Antulay v. R.S. Nayak9. In consequence, a rule has been evolved that the statement of law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges and only larger Benches may overrule the judgment of smaller Benches. Whilst acknowledging this hierarchical position, a reference by a Division Bench of two Judges of a judgment of a two- or three- or five-Judge Bench to a larger Bench for reconsideration has not been considered as breaching this rule much less considered an act of impropriety.24 Presumably, this is because the Court should sparingly exercise this power to disregard a previous decision of the Court in the interest of consistency and certainty of decisions by the highest court as was held by the Supreme Court in the early decision of Bengal Immunity Co. Ltd. v. State of Bihar25. It is only when the Court is convinced that an earlier decision is manifestly erroneous and has “baneful effects” that the power to consider overruling a previous judgment is to be exercised.
Besides the situation where a Division Bench believes that a previous judgment is manifestly erroneous, there are situations where a Division Bench of two Judges finds conflicting judgments of Judges of coordinate or larger Benches, compelling it to make a reference to a larger Bench for guidance.
The Bharat Petroleum1 & Parija2 rulings themselves recognise a necessity for a two-Judge Bench doubting the correctness of the judgment of a larger Bench in some cases and referring it to a larger Bench but according to the rulings it must be a two-step approach of first referring the doubted judgment to a three-Judge Bench which may then refer it to a five-Judge Bench. If that is permissible, it is difficult to understand the strictures in these two rulings on the referring court of two Judges committing acts of indiscipline and impropriety in doubting the correctness of judgments of larger Bench and referring them for reconsideration.
Thirdly, if the hierarchical discipline scheme requires a Bench of two Judges to follow the judgment of three Judges, ex hypothesi the same discipline would oblige a three-Judge Bench to follow the judgment of five Judges. Yet the Bharat Petroleum1 ruling concedes that a three-Judge Bench may refer the correctness of a judgment of a five-Judge Bench for reconsideration. This seems illogical.
The Parija2 ruling refers to an order of a Constitution Bench in SubCommittee of Judicial Accountability v. Union of India26 where it was observed:
“[N]o coordinate Bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench.”
With respect, the reference to this order is inapt. No question of following judicial precedents was involved in that case. The Court in that case was urged to make a judicial order to take away certain cases being decided by Mr Justice V. Ramaswamy of those Advocates-on-Record and parties who did not wish to have their matters decided and heard by Mr Justice V. Ramaswamy who was facing an inquiry before a Judges Inquiry under the Judges (Inquiry) Act, 1968. The request was considered improper as it was observed that a coordinate Bench had no power to interfere with the judicial work of another Bench. It is in that context that the observations were made in the order which has no bearing to the issue at hand.
Fourthly, for the purpose of references to a larger Bench the power of a Division Bench of two or three Judges is the same. This can be seen from the Supreme Court Rules. Under Article 145(2) of the Constitution,
“rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of Single Judges and Division Courts”.
When the Supreme Court was established in 1950 the number of Supreme Court Judges was eight including the Chief Justice of India.
At that time Order XI Rules 1 and 2 of the Supreme Court Rules of 1950 provided as under:
(1) Subject to the other provisions of these rules, every cause, appeal or matter shall be heard by a Bench consisting of not less than three Judges nominated by the Chief Justice.
(2) Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.
With the increase in the sanctioned strength of Judges of the Supreme Court (presently it is twenty-six) Order VII of the Supreme Court Rules of 1966 provides as under:
(1) Subject to the other provisions of these rules, every cause, appeal or matter shall be heard by a Bench consisting of not less than two Judges nominated by the Chief Justice.
(2) Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.
The Supreme Court Rules are a significant pointer to the fact that Benches are composed of two or three Judges for the convenient disposal of cases as the Chief Justice may direct at any time depending on the exigencies of the Court. No particular status or importance attaches to a Bench of three Judges over a two-Judge Bench in deciding a case unlike a minimum number of Judges required to decide any case involving a substantial question of law involving the interpretation of the Constitution or for the purpose of hearing any reference under Article 143 which has to be five [Article 145(3) of the Constitution]. Most importantly Rule 2 of Order VII does not exclude a twoJudge Bench from referring a case to a larger Bench.
The two-step approach in the rulings in Bharat Petroleum1 and Parija2 necessitates two hearings, one by the referring Bench of two Judges, and the second one by the Bench of three Judges before the reconsideration reaches a larger Bench of five Judges. This would entail unnecessary delay and loss of precious judicial time. Recently, in Prakash Kumar v. State of Gujarat27 where a reference was made to a three-Judge Bench doubting the correctness of another three-Judge Bench, the former three-Judge Bench instead of approving the correctness of the reference with their own reasons as was required by the Parija2 ruling straight away referred the matter to a fiveJudge Bench without any reasons. The Court obviously considered the second step only a formality for transmission of the case to the five-Judge Bench. It is submitted that if this is the result of the two-step approach, there is not much to commend it.
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