17 December 2004
Supreme Court


Case number: W.P.(C) No.-000740-000740 / 1986
Diary number: 65986 / 1986



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


JUDGMENT: J  U  D  G  M  E  N  T  

I.A. NO. 4 in W.P. (C)740 OF 1986


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  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  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)  (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  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).

       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.