Larger Bench Rulings Bind Smaller Benches: Supreme Court Restates the Rules on References

For the second respondent. The petition should be listed before a Bench of two Judges, in effect two or three as is the normal practice, relying on Bharat Petroleum, followed by four later Constitution Benches (para 2).

For the petitioners. A petition that specifically seeks reconsideration of a five-Judge decision, in which rule nisi had been issued, must be heard by seven Judges; the rulings relied on were per incuriam because the earlier Constitution Bench in Raghubir Singh had taken a contrary view; and in Hansoli Devi a Constitution Bench had heard a reference made by a two-Judge Bench doubting a three-Judge decision (paras 3, 6).

Smaller Benches follow larger ones

The prayer in I.A. No. 4 deserved to be granted only in part (para 4). A Constitution Bench decision binds a two-Judge Bench, which must follow it whatever its doubts and can at most ask for three Judges; under Parija, only a Bench of the same quorum can question a co-ordinate Bench, and a smaller Bench can only request the Chief Justice to list the matter before a larger one (para 5).

The later rulings were not per incuriam

A decision is per incuriam when it is given in ignorance of a binding precedent or a statute; a ruling that refers to an earlier binding precedent may be wrong, but it is not per incuriam. Chandra Prakash had considered both Raghubir Singh and Parija and followed Parija, so that line of cases could not be called per incuriam (para 7). Raghubir Singh itself reaffirmed binding precedent for its certainty and consistency (paras 8-9), and it nowhere approved a two-Judge Bench referring a question straight to a Constitution Bench (para 11). Hansoli Devi called such a reference improper and answered it only because of its wide implications, by way of an exception and not a rule (para 11).

The rules on doubting a precedent

The Court summed up the law in three propositions (para 12). The law laid down by a Bench of larger strength binds any later Bench of lesser or co-equal strength. A Bench of lesser quorum cannot doubt it; it can only invite the Chief Justice to place the matter before a Bench larger than the one whose decision is in question. Only a Bench of co-equal strength may express doubt, and the matter may then go to a larger quorum. Two exceptions apply: the Chief Justice’s power to frame the roster, and a larger Bench already hearing a matter, which may, by way of exception and for reasons, re-examine a smaller Bench’s view without a specific reference.

Five Judges first

No Bench had ever referred the 1962 decision for reconsideration; the two-Judge order of 1994 was not an order of reference, and the Chief Justice had never directed a hearing by a Constitution Bench or by seven Judges (para 13). The petition was to be heard by a Constitution Bench of five Judges, which could opine in favour of seven Judges, or such strength as the Chief Justice may constitute, only if it doubted the 1962 decision (para 14).