M J Antony: The arithmetic of court benches

OUT OF COURT

The Supreme Court is final not because it is infallible; it is infallible only because it is final, said a US judge. The court revises its opinion quite often.

Sometimes it even finds that some of its earlier judgements were made out of ignorance or negligence (per incuriam). The problem is compounded by the fact that judges sit in division benches and not all together (en banc) as in some countries.

Therefore, one set of judges might differ from another of the same court.

As this problem recurs too often, the Supreme Court of India last month laid down certain guidelines for reviewing its earlier judgements. They were set down in a writ petition, Central Board of Dawoodi Bohra Community vs State of Maharashtra.

This petition was moved in 1986, seeking the overruling of a decision by a five-judge bench in a 1962 case, dealing with the power of ex-communication by certain religious authorities.

In 1994, a two-judge bench admitted the petition and directed the case to be heard by a seven-judge bench. A decade later, one party objected to the hearing of the case by a seven-judge bench and moved an application arguing that it should go back to a two-judge bench.

It contended that since the five-judge bench has decided the issue in 1962, the two-judge bench could not have referred it to a larger bench. On the contrary, it was argued that since the five-judge bench has decided the question, only a larger bench of seven judges could review that judgement.

Since this problem has arisen in several recent cases, there are a few Constitution bench decisions on the practice to be followed by the court in such cases.

In Bharat Petroleum Corp Ltd vs Mumbai Shramik Sangha (2001), the Constitution bench ruled that a two-judge bench is obliged to follow the decision of a larger bench, regardless of their doubts about the correctness of the judgement because judicial discipline demanded so.

In Pradip Chandra vs Pramod Chandra (2002), another Constitution bench discussed the rule of "judicial discipline and propriety" and the theory of precedents and emphasised that only a bench of the same quorum which could question the correctness of the decision of a bench of coordinate strength.

In that situation, the matter may be placed for reconsideration before a bench of larger quorum. The other side quoted another set of judgements to assert that the opposite view was per incuriam.

The dilemma before the highest court of the land is that while precedents should be followed, it should not be bound by its own previous decisions lest the march of judge-made law should come to a standstill. This is a problem facing the judiciary in several countries.

Gulliver landed in an island where precedents were meticulously followed.

"It is a maxim among these lawyers that whatever has been done before may legally be done again, and, therefore, they take special care to record all the decisions formerly made against the common justice and general reason of mankind. These, under the name of precedents, they produce as authorities to justify the most iniquitous opinions and the judges never fail to direct accordingly."

The Supreme Court of India tried to set certain norms to balance the supremacy of precedents with the need for change. The first rule is that the law laid down by a larger bench is binding on any subsequent bench of lesser or co-equal strength.

Second, a bench of lesser quorum cannot doubt the correctness of the view of law taken by a larger bench. In case of doubt, it can only draw the attention of the Chief Justice and request him to place the matter before a larger bench for reconsideration.

However, the Chief Justice has the discretion to form any bench to hear any matter. These rules should hopefully hold good, except that it is the seventh Constitution bench decision on this subject in three years.