Holding

A decision of a larger Supreme Court bench is binding on all subsequent benches of lesser or equal strength, and the present case must be listed before a Constitution Bench of five judges.

Summary

The petition sought a re‑consideration of the five‑Judge Constitution Bench decision in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, which held the Bombay Prevention of Ex‑communication Act, 1949 ultra‑vires. The matter had been listed before a seven‑Judge Bench, but the respondent filed an interim application to have it heard by a normal Division Bench of two judges. The Court examined the doctrine that a decision of a larger bench binds all smaller or co‑equal benches and that a smaller bench cannot dissent from a larger bench’s view, except by seeking a reference to a larger bench or by the Chief Justice’s discretion. Relying on several Constitution Bench rulings, the Court held that the correct procedure was to list the case before a Constitution Bench of five judges, not a seven‑Judge Bench or a Division Bench. Consequently, the interim application was dismissed and IA No. 4 was disposed of, directing the matter to be placed before a Constitution Bench.

Issues considered

The law laid down by a larger Supreme Court bench is binding on benches of lesser or equal strength.
Whether a bench of lesser quorum may dissent from or overrule a decision of a larger bench.
Whether the present matter should be heard by a seven‑Judge Bench, a Division Bench, or a Constitution Bench.
The extent of the Chief Justice's discretion in directing bench composition.

Subjects

binding precedentlarger bench doctrineSupreme Court bench compositionconstitutional lawArticle 32judicial disciplinereference to larger benchChief Justice discretion

Judgment

A CENTRAL BOARD OF DA WOODI BOHRA COMMUNITY AND ANR.
v.
STATE OF MAHARASHTRA AND ANR.

DECEMBER 17, 2004

B [R.C. LAHOTI, CJ., SHIVARAJ V. PATIL, K.G. BALAKRISHNAN,
B.N. SRIKRISHNA AND G.P. MATHUR, JJ.]

Precedent-Law laid down by a larger Bench of Supreme Court-Held,
is binding on any subordinate Bench of lesser or equal strength.

c Practice and Procedure :

Supreme Court of India-Constitution of larger Benches-Held, it will
be open only for a Bench of co-equal strength to get reconsidered the view
taken earlier by Bench of co-equal strength by way of reference to a larger
D Bench-However, the Chief Justice can direct any matter to be placed before
any particular Bench of any strength-Administration of Justice-Consti-
tution of larger Benches in Supreme Court-Supreme Court of India-
Constitution of larger Benches.

In Sardar Svedna Taher Saifuddin Saheb v. State of Bombay a five-
E Judges Bench of this Court ruled by a majority of 4 : 1 that the Bombay
Prevention of Ex-communication Act, 1949 was ultra vires the Consti-
tution as it violated Article 26(b) of the Constitution and was not saved
by Article 25(2). The present petition has been filed seeking reconsid-
eration an overruling of that decision and for issuing a writ of mandamus
directing the respondent-State to give effect to the provisions of the said
F Act.

The matter came up for hearing before a two-Judges Bench of this
Court which directed 'rule nisi' to be issued. Subsequently, a two-
Judges Bench directed the matter to be listed before a seven-Judges
G Bench of hearing. The seven-Judges Bench adjourned the hearing.

Respondent No. 2 filed the present Interim Application seeking a
direction that the matter be listed before a Division Bench of two Judges
as was the normal practice of this Court.

H Disposing of the application, the Court
1054
CENTRAL BD. OF DA WOOD! BOHRA COMMUNITY v. STATE 1055

HELD : 1. The law laid down by this Court in a decision delivered A
by a Bench of larger strength, is binding on any subsequent Bench of
lesser or coequal strength. (p. 13). [1062-H]

2. A Bench of lesser quorum cannot disagree or dissent from th~
view of the law taken by a Bench of larger quorum. In case of doubt B
all that the Bench of lesser quorum can do is to invite the attention of
the Chief Justice and request for the matter being placed for hearing
before a Bench of larger quorum than the Bench whose decisios1 has
come up for consideration. It will be open only for a Bench of coequal
strength to express an opinion doubting the correctness of the view
taken by the earlier Bench of coequal strength, whereupon the matter
c
may be placed for hearing before a Bench consisting of a quorum larger
than the one which pronounced the decision laying down the law the
correctness of which is doubted. (p. 13) [1063-A-B]

3. The above said rules do not bind the discretion of the Chief D
Justice in whom vests the power of framing the roster and who can
direct any particular matter to be placed for hearing before any par-
ticular Bench of any strength: In spite of the rules laid down hereinabove,
if the matter has already come up for hearing before a Bench of larger
quorum and that Bench itself feels that the view of the law taken by a E
Bench of lesser quorum, which view is in doubt, needs correction or
reconsideration then by way of exception (and not as a rule) and for
reasons given by it, it may proceed to hear the case and examine the
correctness of the previous decision in question dispensing with the need .
of a specific reference of the order of Chief Justice constituting the
Bench and such listing. (pp. 13-14) [1063-C-D-E] F

Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, [1962]
Supp. 2 SCR 496; Bharat Petroleum Corpn. Ltd. v. Mumbai Sharmik
Sangha, [2001] 4 SCC 448; Pradip Chandra Parija v. Pramod Chandra
Patnaik, [2002] 1SCC1; Chandra Prakash v. State of UP., [2002] 4 SCC G
234; Vishweshwaraiah Iron and Steel Ltd. v. Abdul Gani, [2002] 10 SCC
437; Arya Sama} Education Trust v. Director of Education, Delhi, [2004)

, . 8 SCC 30; Union of India v. Raghubir Singh, [1989] 2 SCC 754; Union
of India v. Hansoli Devi, [2002] 7 SCC 273 and Sher Singh v. State of
Punjab, [1983] 2 sec 344, referred to. H
1056 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A Jones v. Secretary of State for Social Services, (1972] AC 944b; Ross
Smith v. Ross-Smith, [1963) AC 280; Indvka v. Indvka, [1969) AC 33;
Steadman v. Steadman, [1976] AC 536; Mvers v. DPP, (1965) AC 1001,
Cassell & Co. Ltd. v. Broome, [1975] AC 1027; Haughton v. Smith, [1975]
AC 476 and Knuller v. DPP, (1973) AC 435, cited.
B
4. So far as the present case is concerned, there is no reference
made by any Bench of any strength at any time for hearing by a larger
Bench and doubting the correctness of the Constitution Bench decision
in the case of Sardar Syedna Taher Saifuddin Saheb 's case. The order of
the two-Judges Bench cannot be construed as an Order of Reference.
C At no point of time the Chief Justice of India has directed the matter
to be placed for hearing before a Constitution Bench or a Bench of
seven-Judges. (p. 14) [1063-F-G]

Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, (1962)
D Supp. 2 SCR 496, referred to.

5. In the facts and circumstances of this case, the matter should be
placed for hearing before a Constitution Bench (of five Judges) and not
before a larger Bench of seven Judges. It is only if the Constitution
Bench doubts the correctness of the law laid down in Sardar Syedna
E Taher Saifuddin Saheb 's case that it may opine in favour of hearing by
a larger Bench consisting of seven Judges or such other strength as the
Chief Justice oflndia may in exercise of his power to frame a roster may
deem fit to constitute. (p. 15) [1063-H; 1064-A-B]

Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, [1962]
F Supp. 2 SCR 496.

CIVIL ORIGINAL JURISDICTION : I.A. No. 4 in W.P. (C) No. 740
of 1986.

Under Article 32 of the Constitution of India.
G
Ms. Indra Jaising, Uday U. Lalit, Sanjib Sen, Ms. Nandini Gore, Ms.
Pragya Baghel, R.N. Karanjawala, Ms. Seema Krishnan and Mrs. Manik
Karanjawala for the Petitioners.

H F.S. Nariman, Y.H. Muchhala, S.V. Deshpande, (NP), E.A.K.
CENTRAL BD. OF DA WOO DI BOHRA COMMUNITY v. STA TE [LAHOTI, CJ.) l 057
~

Faizullabhay, B.P. Pandya, .H.A. Ahmadi, Abeezar. E. Faizullabhay, Syed A
Naqvi, H.A. Nasirheala, Ms. H.T. Advani, Mudreka Zaikuddin, E.R. Kumar,
D.P. Mohanty and P.H. Parekh for the Respondents.

K. Parasaran, Shri Narain, E.A.K. Faizullabhay, Sandeep Naraina and
Ms. Anjaly Jha for Mis. S. Narain & Co. for Intervenors.
B
The Judgment of the Court was delivered by

R.C. LAHOTI, CJ.: In Sardar Syedna Taher Saifuddin Saheb v. State
'
ofBombay, [1962] Suppl. 2 SCR 496, a five-Judge Bench of this Court ruled
by a majority of 4: 1 that the Bombay Prevention of Ex-communication Act c
(Act No. 42 of 1949) was ultra vires the Constitution as it violated Article
26 (b) of the Constitution and was not saved by Article 25(2). On 26.2.1986
the present petition has been filed seeking re-consideration, and over-ruling,
of the decision of this Court in Sardar Syedna Taher Saifuddin Saheb 's case
(supra) and then issuing a writ of mandamus directing the State of Maharashtra D
to give effect to the provisions of the Bombay Prevention of Ex-commu-
nication Act, 1949.

The matter came up for hearing before a two-Judge Bench of this Court
which on 25.8.1986 directed 'rule nisi' to be issued. On 18.3.1994 a two-
Judge Bench directed the matter to be listed before a seven-Judge Bench E
for hearing. On 20. 7 .1994 the matter did come up before a seven-Judge
Bench which adjourned the hearing awaiting the decision in W.P.No. 317
of 1993. On 26.7.2004 IA No. 4 has been filed on behalf of respondent no.
2 seeking a direction that the matter be listed before a Division Bench of
two judges. Implicitly, the application seeks a direction for non-listing F
before a Bench of seven Judges and rather the matter being listed for hearing
before a Bench of two or three judges as is the normal practice of this Court.
In the contents of the application reliance has been placed on the Consti-
tution Bench decisions of this Court in Bharat Petroleum Corpn. Ltd. v.
Mumbai Shramik Sangha & Ors., [2001] 4 SCC 448 followed in four
subsequent Constitution Bench decisions namely Pradip Chandra Parija & G
Ors. v. Pramod Chandra Patnaik & Ors., [2002] 1 SCC 1, Chandra Prakash

...
& Ors. v. State of UP. & Anr., [2002] 4 SCC 234, Vishweshwaraiah Iron
& Steel Ltd. v. Abdul Gani & Ors., [2002] 10 SCC 437 and Arya Sama}
Education Trust & Ors. v. Director of Education, Delhi & Ors., [2004] 8
sec 30. H
105.8 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.
,/

A The prayer made on behalf of respondent no. 2 has been opposed by
the petitioners submitting that the matter must come up before seven-Judge
Bench only. Two reasons have been canvassed in opposing the prayer
contained in IA No. 4 by Ms. Indira Jaising, the learned senior counsel for
the petitioners. It was submitted that as the writ petitio:i specifically calls
for reconsideration of a five-Judge Bench decision of this Court wherein
B
'rule nisi' has been issued, the matter must necessarily be heard by a seven-
Judge Bench. Next, it was submitted that the decisions relied on by the
learned counsel for the respondent no. 2 and referred to in IA No. 4 do not
lay down the correct law.

c the prayer
We have heard the learned counsel for the parties at length. In our view,
contained in the application deserves to be allowed only in part.

In Bharat Petroleum Corporation Ltd's case (supra) the Constitution
Bench has ruled that a decision ofa Constitution Bench of this Court binds
a Bench of two learned Judges of this Court and that judicial discipline
D obliges them to follow it, regardless of their doubts about its correctness.
At the most, they could have ordered that the matter be heard by a Bench
of three learned Judges. Following this view of the law what has been
declared by this Court in Pradip Chandra Parija & Ors. 's case (supra)
clinches the issue. The facts in the case were that a Bench of two learned
Judges expressed dissent with another judgment of three learned Judges and
E directed the matter to be placed before a larger Bench of five Judges. The
Constitution Bench considered the rule of'judicial discipline and propriety'
as also the theory of precedents and held that it is only a Bench of the same
quorum which can question the correctness of the decision by another Bench
of the co-ordinate strength in which case the matter may be placed for
F consideration by a Bench oflarger quorum. In other words, a Bench oflesser
quorum cannot express disagreement with, or question the correctness of,
the view taken by a Bench of larger quorum. A view of the law taken by
a Bench of three judges is binding on a Bench of two judges and in case
the Bench of two judges feels not inclined to follow the earlier three-Judge
Bench decision then it is not proper for it to disagree a dissent with the earlier
G view, but doubting correctness of such earlier view, it can only request the
Chief Justice for the matter being placed for hearing before a three-Judge
Bench which may agree or disagree with the view of the law taken earlier
by the three-Judge Bench. As already noted this view has been followed and
~>
reiterated by at least three subsequent Constitution Benches referred to ...

H hereinabove.
CENTRAL BD. OF DAWOOD! BOHRA COMMUNITY v. STA TE (LAHOTI, CJ.] l 059

Ms. Indra Jaisingh, the learned senior counsel for the petitioners sub- A
mitted that the view of the law taken by the abovesaid four Constitution
Benches is per incuriam and is not the correct law as previous decision of
this Court by a Constitution Bench in Union of India and Anr. v. Raghubir
Singh (dead) by Lrs. Etc., [1989] 2 SCC 754 takes a contrary view and being
an earlier decision was binding on the subsequent Benches. We do not agree B
with the submission of the learned senior counsel that the decisions referred
to by the learned counsel for the respondent no. 2/applicant are per incuriam.
She has also placed reliance on a Constitution Bench decision in Union of
India & Anr. v. Hansoli Devi & Ors., [2002] 7 SCC 273 wherein the
Constitution Bench heard a Reference made by two-Judge Bench expressing
disagreement with an earlier three-Judge Bench decision. c
The Constitution Bench in the case of Chandra Prakash and Ors. v.
State of UP. & Anr., [2002] 4 SCC 234 took into consideration the law laid
do~n in Parija 's case and also referred to the decision in Union of India
and Anr. v. Raghubir Singh (dead) by Lrs. Etc. relied on by Ms. Indra
D
Jaising, the learned senior counsel and then reiterated the view takeq in
Parija 's case. Per incuriam means a decision rendered by ignorance of a
previous binding decision such as a decision of its own or of a Court of co-
ordinate or higher jurisdiction or in ignorance of the terms of a statute or
of a rule having the force of law. A ruling making a specific referenctt to
an earlier binding precedent may or may not be correct but cannot be said E
to be per incuriam. It is true that Raghubir Singh 's case was not referred
to in any case other than Chandra Prakash & Ors. ' case but in Chandra
Prakash & Ors. case Raghubir Singh 's case and Parija 's case both have
been referred to and considered and then Parija 's case followed. So the view
of the law taken in series of cases to which Parija 's case belongs cannot F
be said to be per incuriam.

In Raghubir Singh (dead) by Lrs. 's case, Chief Justice Pathak pointed
out that in order to promote consistency and certainty in the law laid down
by the superior Court the ideal condition would be that the entire Court
should sit in all cases to decide questions of law, as is done by the Supreme G
Court of the United States. Yet, His Lordship noticed, that having regard
to the volume of work demanding the attention of the Supreme Court of
India, it has been found necessary as a general rule of practice and conven-
.• ) .
ience that the Court should sit in divisions consisting of judges whose
number may be determined by the exigencies of judicial need, by the nature H
1060 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
~·

A of the case including any statutory mandate relating thereto and by such
other considerations with the Chief Justice, in whom such authority de-
volves by convention, may find most appropriate. The Constitution Bench
reaffirmed the doctrine of binding precedents as it has the merit of promot-
ing certainty and consistency in judicial decisions, and enables an organic
develorment of the law, besides providing assurance to the individuals as
B
to the consequence of transactions forming part of his daily affairs.

Further, the Constitution Bench speaking through Chief Justice Pathak
opined that the question was not whether the Supreme Court is bound by
its own previous decisions; the question was under what circumstances and
c within what limits and in what manner should the highest Court overturn
its own pronouncements. In our opinion, what was working in the mind of
His Lordship was that being the highest Court of the country, it was open
for this Court not to feel bound by its own previous decisions because if
that was not permitted, the march of Judge-made law and the development
D of constitutional jurisprudence would come to a standstill. However, the
doctrine of binding precedent could not be given a go-by. Quoting from Dr.
Alan Paterson's Law Lords (pp.156-157), His Lordship referred to several
criteria articulated by Lord Reid. It may be useful to reproduce herein the
said principles:-

E (I) The freedom granted by the 1966 Practice Statement ought to be
exercised sparingly (the 'use sparingly' criterion) (Jones v. Secretary
of State for Social Services, [1972] AC 944, 966).

(2) A decision ought not to be overruled if to do so w~uld upset the
F legitimate expectations of people who have entered into contracts or
settlements or otherwise regulated their affairs in reliance on the va-
lidity of that decision (the 'legitimate expectations' criterion) (Ross
Smith v. Ross-Smith, [1963] AC 280, 303 and Indyka v. Indyka, [1969]
AC 33, 69).

G (3) A decision concerning questions of construction of statutes or other
documents ought not to be overruled except in rare and exceptional
cases (the 'construction' criterion) [Jones case (supra)].
~ <-
(4) (a) A decision ought not to be overruled if it would be impracticable
H for the Lords to foresee the consequence of departing from it (the
CENTRAL BD. OF DA WOODI BOHRA COMMUNITY v. STATE [LAHOTI, CJ.] 1061

'unforeseeable consequences' criterion) (Steadman v. Steadman, [1976] A
AC 536, 542C). (b) A decision ought not to be overruled if to do so
would involve a change that ought to be part of a comprehensive
reform of the law. Such changes are best done 'by legislation following
on a wide survey of the whole field' (the 'need for comprehensive
reform' criterion) (Myers v. DPP, [1965] AC 1001, 1022; Cassell & B
Co. Ltd. v. Broome, (1972] AC 1027, 1086; Haughton v. Smith, [1975]
AC 476, 500).

(5) In the interest of ce11ainty, a decision ought not to be overruled merely
because the Law Lords consider that it was wrongly decided. There
must be some additional reasons to justify such a step (the 'precedent C
merely wrong' criterion) (Knuller v. DPP, [1973] AC 435, 455). ·

(6) A decision ought to be overruled if it causes such great uncertainty in
practice that the parties' advisers are unable to give any clear indication
as to what the courts will hold the law to be (the 'rectification of D
uncertainty' criterion), (Jones case (supra)); Oldendorff (E.L.) & Co.
GamBHv. Tradax Export SA, [1974] AC 479, 533, 535: (1972] 3 All
ER 420).

(7) A decision ought to be overruled if in relation to some broad issue or
principle it is not considered just or in keeping with contemporary E
social conditions or modern conceptions of public policy (the 'unjust
or outmoded' criterion) (Jones case (supra)); Conway v. Rimmer,
(1968] AC 910, 938).

Reference was also made to the doctrine of stare decisis. His Lordship F
observed by referring to Sher Singh v. State of Punjab, (1983] 2 SCC 344,
that although the Court sits in Divisions of two and three Judges for the sake
of convenience but it would be inappropriate if a Division Bench of two
Judges starts overruling the decisions of Division Benches of three. To do
so would be detrimental not only to the rule of discipline and the doctrine
of binding precedents but it will also lead to inconsistency in decisions on G
points of law; consistency and certainty in the development of law and it$
contemporary status-both would be immediate casualty.

In Raghubir Singh & Ors. case (supra), a Bench of two learned Judges
had made a reference to a larger Bench for reconsideration of the questions H

r
1062 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A decided earlier by two Division Benches of the quorum of two and three
respectively. The Constitution Bench then opined that the matter could be
heard by the Constitution Bench on such reference. It is pertinent to note
that in Raghubir Singh & Ors. case the Constitution Bench has nowhere
approved the practice and propriety of two-Judge Bench making a reference
B straightaway to Constitution Bench disagreeing with a three-Judge Bench
decision. On the contrary, the Constitution Bench had itself felt inclined to
hear the issue arising for decision and therefore did not think it to be
necessary to refer the matter back to a Bench of three Judges. Similar was
the situation in Union ofIndia & Anr. v. Hansoli Devi & Ors., [2002] 7 SCC
C 273. Therein the Constitution Bench has reiterated the principle of judicial
discipline and propriety demanding that a Bench of two learned Judges
should follow the decision ofa Bench of three learned Judges and ifa Bench
of two learned Judges was inclined not to do so then the proper course for
it to adopt would be (i) to refer the matter before it to a Bench of three
learned Judges, and (ii) to set out the reasons why it could not agree with
D the earlier judgment. The Constitution Bench concluded, "then ifthe Bench
of three learned Judges also comes to the conclusion that the earlier judg-
ment ofa Bench of three learned Judges is incorrect then a reference should
be made to a Bench of five learned Judges". The Constitution Bench has
very clearly concluded and recorded, "the very reference itself in the present
E case made by the two-Judge Bench was improper". However, the Consti-
tution Bench then proceeded to observe that as the question involved had
very wide implications affecting a large number of cases, it considered it
appropriate to answer the questions referred instead of sending the matter
back to a Bench of three Judges for consideration. The decision of this Court
in Pradip Chandra Parija (supra) was followed. Thus, the course adopted
F by the Constitution Bench in the case of Hansoli Devi was by way of an
exception and not a rule.

Having carefully considered the submissions made by the learned
senior counsel for the parties and having examined the law laid down by
G the Constitution Benches in the abovesaid decisions, we would like to sum
up the legal position in the following terms :-

(1) The law laid down by this Court in a decision delivered by a Bench
of larger strength is binding on any subsequent Bench of lesser or co-
equal strength.
H
'I
CENTRAL BD. OF DAWOOD! BOHRA COMMUNITY v. STATE [LAHOTI, CJ.] 1063

(2). A Bench oflesser quorum cannot disagree or dissent from of the view A
of the law taken by a Bench of larger quorum. In case of doubt all that
the Bench oflesser quorum can do is to invite the attention of the Chief
Justice and request for the matter being placed for. hearing before a
Bench of larger quorum than the Bench whose decision has come up
for consideration. It will be open only for a Bench of co-equal strength B
to express an opinion doubting the correctness of the view taken by
the earlier Bench of co-equal strength, whereupon the matter may be
placed for hearing before a Bench consisting of a quorum larger than
the one which pronounced the decision laying down the law the cor-
-rectness of which is doubted.
c
(3) The above rules are subject to two exceptions: (i) The abovesaid rules
do not bind the discretion of the Chief Justice in whom vests the power
of framing the roster and who can direct any particular matter to be
placed for hearing before any particular Bench of any strength; and (ii)
In spite of the rules laid down hereinabove, if the matter has already D
come up for hearing before a Bench of larger quorum and that Bench
itself feels that the view of the law taken by a Bench oflesser quorum,
which view is in doubt, needs correction or reconsideration then by
way of exception (and not as a rule) and for reasons given by it may
proceed to hear the case and examine the correctness of the previous
decision in question dispensing with the need of a specific reference E
.or the order of Chief Justice constituting the Bench and such listing.
Such was the situation in Raghubir Singh & Ors. and Hansoli Devi &
Ors.(supra).

So far as the present case is concerned, there is no reference made by F
any Bench of any strength at any time for hearing by a larger Bench and
doubting the correctness of the Constitution Bench decision in the case of
Sardar Syedna Taher Saifuddin Saheb 's case (supra). The order dated
18.3 .1994 by two-Judge Bench cannot be construed as an Order of Refer-
ence. At no point of time the Chief Justice of India has directed the matter
to be placed for hearing before a Constitution Bench or a Bench of seven- G
1 Judges.

In the facts and circumstances of this case, we are satisfied that the
matter should be placed for hearing before a Constitution Bench (of five
Judges) and not before a larger Bench of seven Judges. It is only if the H
1064 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A Constitution Bench doubts the correctness of the law laid down in Sardar
Syedna Taher Saifuddin Saheb 's case (supra) that it may opine in favour
of hearing by a larger Bench consisting of seven Judges or such other
strength as the Chief Justice of India may in exercise of his power to frame
a roster may deem fit to constitute.
B
Ordered accordingly.

I.A. No. 4 is disposed of.

v.s.s. I.A. disposed of.