Competence of Two-Judge Benches of The Supreme Court to Refer Cases to Larger Benches*
by Dr. R. Prakash
Cite as : (2004) 6 SCC (Jour) 75
The Supreme Court of the United States of America consists of nine Judges and every Judge of that court is a party to each of its judgments. But the same is not the case in our Supreme Court. The Supreme Court of India consists of twenty-six Judges including the Chief Justice and sits in Division Courts comprising of two Judges, three Judges, five Judges, or more, and therefore all the Judges do not become party to each of the judgments pronounced by the Supreme Court of India. In view of the fact that our Supreme Court sits in divisions, a practice developed to refer a case to a larger Bench whenever a smaller Bench doubted the correctness of the law declared in the earlier judgment. Further references may go to still larger Benches until the law is settled by a larger Bench. For example, it can be seen as to how Kesavananda Bharati case1 reached a Bench of thirteen Honble Judges. In Shankari Prasad Singh Deo v. Union of India2 a five-Judge Constitution Bench held that an amendment of the Constitution made under Article 368 is not law within the meaning of Article 13(2) of the Constitution. In Sajjan Singh v. State of Rajasthan3 another five-Judge Bench also took the same view (though Hidayatullah and Mudholkar, JJ. did not express any dissent, Their Lordships were dubitant of the majority view taken by Gajendragadkar, C.J.). These two decisions were doubted and the correctness of these decisions was considered by an eleven-Judge Bench in Golak Nath v. State of Punjab4 wherein by a majority of 6:5, the elevenJudge Bench prospectively overruled Shankari Prasad2 and Sajjan Singh3 decisions and it was held that an amendment of the Constitution is law within the meaning of Article 13(2) of the Constitution. After this decision, Articles 13 and 368 were amended so as to exclude the amendments of the Constitution from the purview of Article 13(2). The correctness of Golak Nath case4 and the validity of the Constitution (Twenty-fourth Amendment) Act, 1971 was considered by a larger Bench of thirteen Judges in Kesavananda Bharati v. State of Kerala1 wherein Golak Nath case4 was overruled and the doctrine of basic structure was propounded.
From the commencement of the Supreme Courts functioning under our Constitution, various references have been made by Benches of two Judges to larger Benches of five or more Judges. Reference by smaller Benches of the Supreme Court to larger Benches, as noted above, was necessitated by the fact that the Supreme Court sits in divisions of two or more Judges, and in keeping with the doctrine of stare decisis. The purpose of this article is to examine the recent rulings in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha5 and Pradip Chandra Parija v. Pramod Chandra Patnaik6 under which two-Judge Benches may make a reference only to a three-Judge Bench.
Ruling regarding reference by two-Judge Benches to larger Benches
In Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha7 a Bench of two learned Judges doubted the correctness of a five-Judge Bench decision in Gammon India Ltd. v. Union of India8 and Their Lordships referred the matter to be placed before the Honble Chief Justice of India thus: (SCC p. 755, para 6)
6. We have given our anxious consideration to the rival contentions. It appears to us that the matter is important and also that the observations of the Constitution Bench in Gammon8 (at pp. 669, 671 of SCR : SCC pp. 600, 602) insofar as Section 10 was concerned were indeed not strictly necessary because Gammon8 was not a case dealing with prohibition of contract labour. Whether the restricted scope attributed to Section 10 of the Act given in Gammon8 is correct or not must, in our opinion, be decided independently. We are therefore of the view that this question is to be decided by a Constitution Bench. We, therefore, refer the following questions to be decided by a Constitution Bench of this Court:
After stating the two questions, it was observed as follows: (SCC p. 756, para 7)
7. The Registry is directed to place the matter before My Lord the Chief Justice of India for passing appropriate orders referring to the above question of law to a Constitution Bench.
Accordingly, a five-Judge Bench was constituted to decide the correctness of the law laid down in Gammon India Ltd. v. Union of India8. This five-Judge Bench rendered its decision in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha5. The Court held that judicial discipline obliges the two-Judge Bench to follow the five-Judge Bench decision. It was further held that at the most, the two learned Judges could have ordered that the matter be heard by a Bench of three learned Judges. Holding so, the five-Judge Bench directed the matter to be heard and decided by a two-Judge Bench wherein it was observed9:
2. We are of the view that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline 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.10
It is respectfully submitted that the observations that a Bench of two learned Judges is obliged to follow the decision of a Constitution Bench regardless of its doubts about its correctness, is too wide and is not correct. It is submitted that there is inconsistency in the first and the second statements in the above observations. When it is declared that a two-Judge Bench is bound by a five-Judge Bench decision, how can it be referred to a three-Judge Bench? A two-Judge Bench is required to follow a larger Bench decision, not because it is bound by it, but because judicial propriety and certainty in the law require it. But, when a two-Judge Bench doubts the correctness of a larger Bench decision, it has the competence to refer the matter to a larger Bench to decide the correctness of the law laid down in the previous decision.
Whether the Supreme Court is bound by its own decisions?
Article 141 of the Constitution of India lays down that the law declared by the Supreme Court shall be binding on all courts throughout the territory of India. Does Article 141 comprehend the Supreme Court? This question was answered in the negative in Bengal Immunity Co. Ltd. v. State of Bihar11. In this case it was held that Article 141, which lays down that the law declared by the Supreme Court shall be binding on all courts throughout the territory of India quite obviously refers to courts other than the Supreme Court. The effect of this decision is that a smaller Bench has the competency to doubt the correctness of a larger Bench decision. Once this position is accepted, the said power cannot be restricted by holding that a two-Judge Bench can refer a matter only to a three-Judge Bench. The decision in Bengal Immunity Co. Ltd. case11 makes it amply clear that a two-Judge Bench is not bound by a larger Bench decision. This conclusion is further strengthened if the matter is before the Court under Article 136(1) of the Constitution. Article 136(1) opens with a non obstante clause. It confers discretionary power on the Supreme Court to grant special leave to appeal from any judgment, decree, determination, sentence or order notwithstanding anything contained in Chapter IV of Part V of the Constitution. The said provision reads as follows:
136. Special leave to appeal by the Supreme Court.(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. (emphasis supplied)
It is submitted that the non obstante clause in Article 136(1) excludes Article 141 also from its purview. In Taherakhatoon v. Salambin Mohd.12 it was held that the discretion under Article 136 extends even after the grant of leave. The effect of this decision is that from the stage of filing of a special leave petition till the final disposal of an appeal after grant of leave to appeal is governed by Article 136.
Therefore, it is submitted that if the discretion of the Court is available at the time of final hearing of an appeal arising out of a special leave petition under Article 136, then Article 141 has no application even at the time of final hearing in view of the non obstante clause occurring in Article 136.
There is no provision in the Constitution which says that a smaller Bench of the Supreme Court is bound by its larger Bench decisions. But judicial propriety and the need for certainty in the law require that a smaller Bench follow the law declared by larger Benches. Yet, smaller Benches are competent to doubt the correctness or otherwise of the law laid down by a larger Bench and refer the matter to be placed before the Chief Justice for constituting yet larger Benches to settle the controversy.
Supreme Court Rules on minimum number of Judges required to sit in a Bench of the Supreme Court
Cases involving substantial question of law as to the interpretation of the Constitution are required under Article 145(3) to be decided by a Bench of not less than five Judges.
Order 7 Rule 1 of the Supreme Court Rules, 1966 states that subject to the other provisions of the Rules, every cause, appeal or matter shall be heard by a Bench consisting of not less than two Judges nominated by the Chief Justice. The proviso to Order 7 Rule 1 empowers the Chief Justice to nominate a Single Judge to hear and dispose of certain matters.
Order 35 Rule 1(1) requires every petition under Article 32 of the Constitution to be heard by a Division Court of not less than five Judges and if such petition does not raise any substantial question of law as to the interpretation of the Constitution, it may be heard and decided by a Division Court of less than five Judges. Sub-rule (2) of Rule 1 of Order 35 empowers a Bench of less than five Judges to decide interlocutory and miscellaneous applications filed in a writ petition under Article 32 even though the writ petition may involve substantial question of law as to the interpretation of the Constitution.
Rule 10 of Order 38-A of the Supreme Court Rules requires a reference under Section 257 of the Income Tax Act, 1961 to be heard by a Bench of not less than three Judges.
Order 39 Rule 13 requires the preliminary hearing of an election petition filed challenging the election of President or Vice-President to be heard by a Bench of five Judges and Rule 20 of Order 39 requires not less than five Judges to hear the final hearing of such election petition.
The Apex Court had occasion to examine the Supreme Court Rules to locate the power of the Court to make reference to larger Benches. In Triveniben v. State of Gujarat13, a decision by a five-Judge Constitution Bench, Jagannatha Shetty, J. in his concurring judgment referred to Order 7 Rule 2 of the Supreme Court Rules, 1966 and observed as follows14:
34. In this context, Order 7 Rule 2 of the Supreme Court Rules also needs to be noted. It provides:
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.
35. This is undoubtedly a salutary rule, but it appears to have only a limited operation. It apparently governs the procedure of a smaller Bench when it disagrees with the decision of a larger Bench. If the Bench in the course of hearing of any matter considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice. The Chief Justice shall then constitute a larger Bench for disposal of the matter.
Reference by two-Judge Benches to larger Benches of five or seven Judges some instances
There are instances where Division Benches of two Judges had doubted the correctness of decisions of larger Benches and referred the matter straight away to a larger Bench of five or seven Judges:
1. A two-Judge Bench doubted the correctness of certain directions made by a five-Judge Bench in R.S. Nayak v. A.R. Antulay15 and referred the matter to be decided by a seven-Judge Bench. No exception was taken by the seven-Judge Bench in A.R. Antulay v. R.S. Nayak16 qua the two-Judge Bench doubting the correctness of a five-Judge Bench decision. Ranganath Misra, J. (as he then was) in his concurring judgment made the following observations which are relevant in the present context:17
A two-Judge Bench, of which Mukharji, J., my learned Brother, was a member, granted special leave, whereupon this criminal appeal (No. 468 of 1986) came to be registered. Respondent 1 asked for revocation of special leave in Criminal Miscellaneous Petition No. 4248 of 1986. While rejecting the said revocation application, by order dated 29-10-1986, the two-Judge Bench formulated several questions that arose for consideration and referred the matter for hearing by a Bench of seven Judges of the Court. That is how this seven-Judge Bench has come to be constituted to hear the appeal.
2. A five-Judge Bench entertained and answered the reference in Steel Authority of India Ltd. v. National Union Waterfront Workers18 by a two-Judge Bench in FCI v. Transport and Dock Workers Union19.
3. In Sunder v. Union of India20 a two-Judge Bench referred the question whether the State is liable to pay interest on the amount envisaged under Section 23(2) of the Land Acquisition Act, 1894 which was entertained and answered in the affirmative by a five-Judge Bench in Sunder v. Union of India21.
4. In Sanjay Dutt v. State22 a five-Judge Bench answered the question referred to it by a two-Judge Bench in Sanjay Dutt v. State23.
5. In State Bank of India v. State Bank Staff Union24 a two-Judge Bench referred the question whether workmen who proceed on strike whether legal or illegal are entitled to wages for the period of strike which was answered by a five-Judge Bench in Syndicate Bank v. K. Umesh Nayak25 by holding that to be entitled to wages for the strike period, the strike has to be both legal and justified.
6. In K.S. Pariapoornan v. State of Kerala26 a two-Judge Bench doubted the correctness of Union of India v. Zora Singh27 and referred the matter to a five-Judge Bench which answered the reference in K.S. Paripoornan v. State of Kerala28.
7. Dodsal (P) Ltd. v. Delhi Electric Supply Undertaking of the Municipal Corpn. of Delhi29.
8. CST v. Rewa Coal Fields Ltd.30
9. Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma31.
10. Buta Singh v. Union of India32.
11. New India Assurance Co. Ltd. v. C.M. Jaya33.
While in Mumbai Shramik Sangha case5 a five-Judge Bench dealt with the issue as to the competence of a two-Judge Bench to doubt the correctness of a five-Judge Bench decision, the competence of a two-Judge Bench to doubt the correctness of a three-Judge Bench decision and reference by it by a five-Judge Bench was considered in Pradip Chandra Parija v. Pramod Chandra Patnaik6,.. wherein it was held that judicial discipline and propriety demand that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is very incorrect, that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter to a Bench of three learned Judges setting out 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 the Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified. However, in Karnataka SRTC v. Lakshmidevamma34 a five-Judge Bench entertained a reference by a two-Judge Bench in view of two conflicting decisions by three-Judge Benches. In this case no exception was taken by the five-Judge Bench with regard to the reference made by a two-Judge Bench directly to a five-Judge Bench. A two-Judge Bench in Ador Samia (P) Ltd. v. Peekay Holdings Ltd.35 and a three-Judge Bench in Konkan Rly. Corpn. Ltd. v. Mehul Construction Co.36 held that appointment of arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 cannot be challenged under Article 136 of the Constitution of India. However, a two-Judge Bench doubted the correctness of this view in Konkan Rly. Corpn. Ltd. v. Rani Construction (P) Ltd.37 and referred the matter to a five-Judge Bench38 wherein it was held that an order appointing arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 cannot be challenged under Article 136 of the Constitution of India. The five-Judge Bench in this case though pointed out that the practice of a two-Judge Bench referring the matter to a five-Judge Bench was frowned upon by a Constitution Bench, yet answered the issue referred to it by a two-Judge Bench.
Again, in T.V. Vatheeswaran v. State of T.N.39 a two-Judge Bench speaking through Chinnappa Reddy, J. held that more than two years delay in the execution of death sentence imposed by a trial court is an infraction of Article 21 of the Constitution and commuted the death sentence into imprisonment for life. In Sher Singh v. State of Punjab40 a three-Judge Bench did not agree to the proposition laid down in T.V. Vatheeswaran v. State of T.N.39 In Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra41 a two-Judge Bench speaking through Chinnappa Reddy, J. once again reiterated what was laid down in T.V. Vatheeswaran case39 and observed thus42:
The case also raises the further question whether a Division Bench of three Judges can purport to overrule the judgment of a Division Bench of two Judges merely because three is larger than two. The Court sits in divisions of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to overrule the decision of a Division Bench of two Judges.
To put the matter at rest, the question of law that arose in the above three cases was referred to and decided by a Constitution Bench in Triveniben v. State of Gujarat13. The issue was resolved by the Constitution Bench holding that to determine the delay in execution of death sentence, it must be from the date when the judicial proceedings come to an end.
It is submitted that though a smaller Bench cannot overrule a judgment of a larger Bench, yet it undoubtedly has the power to doubt the correctness of a larger Bench decision. If a smaller Bench is convinced of an error in a larger Bench decision and its baneful effect on the general interests of the public, it is not bound by such a decision. While the principle of stare decisis et non quieta movere, meaning that settled decisions should not be unsettled, has become a well-accepted principle in our jurisprudence, and consistency in the law may be a guiding factor, in Waman Rao v. Union of India43 Chandrachud, C.J. observed that future perpetration of illegality is no part of stare decisis. Hence, the twin factors that settled decisions should not be unsettled and the perpetration of illegality is no part of stare decisis may be the guiding factors for a smaller Bench which refers the matter to a larger Bench.
Constitution of larger Benches
Though the Chief Justice of India constitutes Benches in his administrative capacity, it is submitted that there should be a judicial order of reference to a larger Bench. A thirteen-Judge Bench was constituted to reconsider Kesavananda Bharati case1. This Bench was constituted without there being any judicial order of reference to reconsider Kesavananda Bharati case wherein Khanna, J. pointed out that the question as to whether the correctness of a previous decision should be reconsidered and the matter should be heard by a larger Bench could only arise in pursuance of some judicial order. The thirteenJudge Bench which was constituted to reconsider the correctness of Kesavananda Bharati case was dissolved and thus ended the attempt to reconsider the correctness of Kesavananda44 decision.
In the light of the above discussion it is submitted that there can be only two options available to a smaller Bench. Either it has to follow a larger Bench decision (as stated above, not because it is bound by a larger Bench decision but because judicial propriety and certainty in the law require it) or if it doubts the correctness of a larger Bench decision, it has to refer the matter to the Chief Justice of India for constituting a larger Bench. The Chief Justice acting on the administrative side would constitute a larger Bench. After all this exercise, can the larger Bench to which the matter is referred, refuse to decide the questions referred and send it back to the smaller Bench on the ground that the smaller Bench is bound by the earlier larger Bench decision? Here also judicial propriety requires that the larger Bench, which is constituted as per the judicial order of reference by a smaller Bench, does decide the questions referred to it, by either agreeing with the earlier larger Bench decision or by overruling it.
It is respectfully submitted that it is not necessary for a Bench of two learned Judges to refer a matter to a three-Judge Bench if it doubts the correctness or otherwise of the law laid down by a five-Judge Bench or by a three-Judge Bench. A two-Judge Bench may directly refer the matter to be decided by a five-Judge Bench or still a larger Bench by placing the matter before the Chief Justice to constitute such a larger Bench. There is nothing in the Constitution or in the Supreme Court Rules which prohibits a two-Judge Bench from making a direct reference to a Bench consisting of five or more Judges. When a matter is so referred by a judicial order and when a larger Bench is constituted, the larger Bench does not sit in appeal over the reference order. Therefore, it is submitted with utmost respect that the view taken in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha5 and Pradip Chandra Parija v. Pramod Chandra Patnaik6 requires reconsideration.
In this context one may consider the suggestion of Chief Justice R.S. Pathak while presiding over a five-Judge Bench in Union of India v. Raghubir Singh45. In this case also, the competence of a two-Judge Bench to refer a case to a five-Judge Bench was questioned. The five-Judge Bench overruled the preliminary objection and proceeded to determine the question of law referred. The learned Chief Justice pointed out the practice followed by the US Supreme Court wherein the entire Court is responsible for each of its decisions and how such a practice is impracticable in our country. Chief Justice R.S. Pathak suggested that to avoid the problems of two-Judge Benches and three-Judge Benches taking contrary views and the binding effect of such judgments, the Benches may be constituted with a minimum of three learned Judges, if possible.