Full Judgment Text
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CASE NO.:
Writ Petition (civil) 740 of 1986
PETITIONER:
Central Board of Dawoodi Bohra Community & Anr.
RESPONDENT:
State of Maharashtra & Anr.
DATE OF JUDGMENT: 17/12/2004
BENCH:
R.C.LAHOTI CJI & S.V.PATIL & K.G.BALAKRISHNAN & B.N.SRIKRISHNA & A.K.MATHUR
JUDGMENT:
JUDGMENT
DELIVERED BY:
R.C.LAHOTI,CJI
R.C. LAHOTI, CJI
In Sardar Syedna Taher Saifuddin Saheb Vs. State of
Bombay \026 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 (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 to give effect to the
provisions of the Bombay Prevention of Ex-communication 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 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 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 Constitution Bench decisions of this Court in
Bharat Petroleum Corpn. Ltd. Vs. Mumbai Shramik Sangha &
Ors. (2001) 4 SCC 448 followed in four subsequent
Constitution Bench decisions namely Pradip Chandra Parija &
Ors. Vs. Pramod Chandra Patnaik & Ors. - (2002) 1 SCC 1,
Chandra Prakash & Ors. Vs. State of U.P. & Anr., (2002) 4
SCC 234, Vishweshwaraiah Iron & Steel Ltd. Vs. Abdul
Gani & Ors. - (2002) 10 SCC 437 and Arya Samaj Education
Trust & Ors. Vs. Director of Education, Delhi & Ors. -
(2004) 8 SCC 30.
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
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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 petition specifically calls for
reconsideration of a five-Judge Bench decision of this Court
wherein ’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.
We have heard the learned counsel for the parties at
length. In our view, the prayer 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 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. 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 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 consideration by a Bench of
larger quorum. In other words, a Bench of lesser 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 express such disagreement; 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 hereinabove.
Ms. Indra Jaisingh, the learned senior counsel for the
petitioners submitted 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. Vs. Raghubir
Singh (dead) by Lrs. etc. \026 (1989) 2 SCC 754 takes a contrary
view and being an earlier decision was binding on the
subsequent Benches. We do not agree 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. Vs. Hansoli Devi & Ors. \026
(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.
The Constitution Bench in the case of Chandra Prakash
and Ors. Vs. State of U.P. & Anr. \026 (2002) 4 SCC 234 took
into consideration the law laid down in Parija’s case and also
referred to the decision in Union of India and Anr. Vs.
Raghubir Singh (dead) by Lrs. etc. relied on by Ms. Indra
Jaising, the learned senior counsel and then reiterated the view
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taken 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 reference to an earlier binding
precedent may or may not be correct but cannot be said 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 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 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 convenience that the Court should sit in divisions
consisting of judges whose number may be determined by the
exigencies of judicial need, by the nature of the case including
any statutory mandate related thereto and by such other
considerations with the Chief Justices, in whom such authority
devolves by convention, may find most appropriate. The
Constitution Bench reaffirmed the doctrine of binding precedents
as it has the merit of promoting certainty and consistency in
judicial decisions, and enables an organic development of the
law, besides providing assurance to the individuals as 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 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 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:-
(1) The freedom granted by the 1966 Practice Statement
ought to be exercised sparingly (the ’use sparingly’
criterion) (Jones Vs. Secretary of State for Social
Services, 1972 AC 944, 966).
(2) A decision ought not to be overruled if to do so would
upset the legitimate expectations of people who have
entered into contracts or settlements or otherwise
regulated their affairs in reliance on the validity of that
decision (the ’legitimate expectations’ criterion) (Ross
Smith Vs. Ross-Smith, 1963 AC 280, 303 and Indyka
Vs. Indyka, (1969) AC 33, 69).
(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)
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(Jones case (supra))
(4) (a) A decision ought not to be overruled if it would be
impracticable for the Lords to foresee the consequence of
departing from it (the ’unforeseeable consequences’
criterion) (Steadman Vs. Steadman, 1976 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 Vs. DPP, 1965 AC 1001, 1022; Cassell & Co.
Ltd. Vs. Broome, 1972 AC 1027, 1086; Haughton Vs.
Smith, 1975 AC 476, 500).
(5) In the interest of certainty, 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 merely
wrong’ criterion) (Knuller Vs. 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 uncertainty’ criterion),
(Jones case (supra)); Oldendorff (E.L.) & Co. GamBH
Vs. 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 social conditions or modern
conceptions of public policy (the ’unjust or outmoded’
criterion) (Jones case (supra)); Conway Vs. Rimmer,
(1968) AC 910, 938).
Reference was also made to the doctrine of stare decisis.
His Lordship observed by referring to Sher Singh Vs. 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 points of law; consistency and
certainty in the development of law and its contemporary status
\026 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 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 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 of India & Anr. Vs. Hansoli
Devi & Ors., (2002) 7 SCC 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
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decision of a Bench of three learned Judges and if a 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 the earlier judgment. The
Constitution Bench concluded, "then if the Bench of three
learned Judges also comes to the conclusion that the earlier
judgment of a 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 case made by the two-
Judge Bench was improper". However, the Constitution 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 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 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.
(2) A Bench of lesser quorum cannot doubt the correctness of
the view of the law taken by a Bench of larger quorum. In
case of doubt 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 decision has come up
for consideration. It will be open only for a Bench of co-
equal strength 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 correctness of which is doubted.
(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 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 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 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 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).
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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 (supra). The order dated
18.3.1994 by two-Judge Bench cannot be construed as an
Order of Reference. 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.
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 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.
Ordered accordingly.
I.A. No.4 is disposed of.