THE SUPREME COURT OF INDIA’S PRACTICE OF REFERRING CASES TO LARGER BENCHES:

A NEED FOR REVIEW

- Chintan Chandrachud∗

‘The law is the painting of a picture - not the doing of a sum’1

-Oliver Wendell Holmes

I. INTRODUCTION
More than three decades have elapsed since thirteen judges of the Supreme Court of India sat en
banc in Kesavananda2 and twenty-eight judges of the Allahabad High Court effected an
affirmation of solidarity with their brethren in Keshav Singh’s case3. It was in 1955 that the
Supreme Court first recognized that it was free to depart from its own decisions and that the web
of Article 141 did not encompass itself.4 This assertion is in consonance with the practice of the
House of Lords in the U.K., the High Court of Australia, and the Supreme Courts of South
Africa and Canada.

However, since the Court usually sits in divisions, a practice was developed according to which
benches which expressed doubts as to the correctness of panels of co-ordinate strength, could
only refer matters to larger benches for reconsideration, without venturing into the question
itself.5 The hierarchy of benches within the framework of the Supreme Court has crystallized as a
rule of law6, and Order VII Rule 2 of the Supreme Court Rules paves an avenue for carrying out
this objective7.

∗
The author is a student of the Government Law College, Mumbai, and is presently studying in the fourth year of
the five year law course. He can be contacted at chintan.dc@gmail.com.
1
Wallace Mendelson, Supreme Court Statecraft (Asian Books New Delhi 1987) 275.
2
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
3
See Reference No. 1 of 1964, AIR 1965 SC 745 (under Article 143 of the Constitution).
4
Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661.
5
See Dr. R. Prakash, “Competence of Two-judge benches of the Supreme Court to Refer Cases to Larger Benches”
(2004) 6 SCC(Jour) 75.
6
T. R. Andhyarujina, “Disciplining Division Benches of Two Judges of the Supreme Court” (2004) 6 SCC(Jour) 85.
7
Order VII, Rule 2 of the Supreme Court Rules, 1966, reads: “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.”

Electronic copy available at: http://ssrn.com/abstract=1837484

Presently, in India, every decision is treated as a ruling of the entire bench, even if there are one
or more dissenting opinions. This fiction of law effectively implies that a nine-judge bench with
four dissenting opinions is deemed to be a decision of nine judges, and would override even a
unanimous verdict of seven judges. Notwithstanding the fact that the number of concurring
views in the judgment of a larger bench is less than that of a smaller bench; the finding of the
former prevails.

The issue which is sought to be examined in this article is why this peculiar practice prevails in
India. It is observed that the principle of referring matters to larger benches for reconsideration is
neither theoretically nor practically sound. The corresponding systems in operation in several
jurisdictions are also examined as an index of comparison. The last section of this article sets out
a blueprint for the Supreme Court which is more appropriate and feasible than the prevailing
system.

II. JURISPRUDENTIAL RECOGNITION OF THE RULE REQUIRING REFERENCE TO LARGER BENCHES

It is an established position of law that benches of a numerically larger strength overrule the
decisions arrived at by smaller ones, unless the former can be distinguished.8 The Supreme Court
has also unanimously accepted that no bench can question the judgment of another bench of co-
ordinate strength.9 On several occasions, the Court has frowned upon attempts to bypass this
‘rule of propriety’.10 The words of Gajendragadkar J. highlight this11:
“It is hardly necessary to emphasise that considerations of judicial propriety and decorum require
that if a learned single Judge hearing a matter is inclined to take the view that the earlier
decisions of the High Court, whether of a Division Bench or of a single Judge, need to be
reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer
the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief
Justice to enable him to constitute a larger Bench to examine the question. That is the proper and

8
V. N. Shukla, Constitution of India (Eastern Book Company Lucknow 2004) 455-56; Union of India v. K.S.
Subramanium, (1976) 3 SCC 677 : AIR 1976 SC 2433; State of U.P. v. Ram Chandra Trivedi, (1976) 4 SCC 52.
9
Narendra Prasadji v. State of Gujarat, (1975) 1 SCC 11 : AIR 1974 SC 2098.
10
Indian Oil Corporation Ltd. v. Municipal Corporation, (1995) 4 SCC 96 (para 8): AIR 1995 SC 1480.
11
Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767 : [1965] 3 SCR 218. See also Sundarjas Kanyalal Bhathija v.
Collector, Thane, AIR 1990 SC 261 : (1989) 3 SCC 396.

Electronic copy available at: http://ssrn.com/abstract=1837484

traditional way to deal with such matters and it is founded on healthy principles of judicial
decorum and propriety.”

Article 141 of the Constitution has also been interpreted by the Supreme Court so as to suggest
that a bench cannot overrule or even express doubts as regards the decision of a bench of larger
or co-ordinate strength.12 The only option available to judges when they are bound by precedent
which requires reconsideration, is to invite the attention of the Chief Justice to the matter. The
Chief Justice may, at his discretion, refer the matter to a larger bench.13

III. INCONGRUITY OF THE RULE

Notwithstanding the number of concurring opinions therein, a judgment is deemed to be that of
the bench as a whole, rather than that of the judges in the majority. Initially, it is observed that
such a system grossly devalues the significance of dissenting opinions.

Notably, a practice of this nature may give rise to situations where larger benches, which
comprise of less concurring opinions than a smaller bench, override the latter nonetheless. This
leads to a peculiarity in which, in truth, a smaller number of judges overrule the decision of a
larger number of judges, only by virtue of being in the majority of a larger bench of judges. Such
an interpretation of the doctrine of precedent is misconceived and hinges on untenable grounds.

The Supreme Court has acknowledged that if a two judge bench is of the view that the law laid
down by a three judge bench is incorrect and cannot be followed, the appropriate procedure is to
refer the matter to another three judge bench, which, in turn, may refer it to a five judge bench.
However, the two judge bench cannot refer the matter directly to a panel of five judges.14 This
leads to an almost ludicrous situation as such a procedure is neither theoretically nor practically
sound.

12
Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1 at 3: AIR 2002 SC 296; Sub-Committee of
Judicial Accountability v. Union of India, AIR 1992 SC 63.
13
See Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673 : AIR 2005 SC 752.
14
Union of India v. Hansoli Devi, (2002) 7 SCC 273 : AIR 2002 SC 3240; Pardip Chandra Parija v. Pramod
Chandra Patnaik, (2002) 1 SCC 1.
It is interesting to observe that these discrepancies have not formed the subject of much judicial
investigation or scrutiny. Perhaps the lone voice of question15 has been that of Beaumont C.J. in
Emperor v. Ningapa Kurbar16:
“Apparently it was considered that five Judges, by a majority of four to one, could overrule a
unanimous decision of four Judges, the net result being that the opinion of four Judges prevailed
over the opinion of five Judges of co-ordinate jurisdiction. There seems to be very little authority
on the powers and constitution of a full bench. There can be no doubt that a full bench can
overrule a division bench, and that a full bench must consist of three or more Judges; but it
would seem anomalous to hold that a later full bench can overrule an earlier full bench, merely
because the later bench consists of more Judges than the earlier. If that were the rule, it would
mean that a bench of seven Judges, by a majority of four to three, could overrule a unanimous
decision of a bench of six Judges, though all the Judges were of co-ordinate jurisdiction.”

IV. CHALLENGING THE UNDERPINNINGS OF THE RULE REQUIRING REFERENCE TO A LARGER

BENCH
The fundamental issue which requires analysis is the rationale behind the rule requiring
constitution of larger benches to overrule precedent. Various justifications have been enunciated
by the Supreme Court to buttress the existence of this rule:

(A) Consistency, Certainty & Predictability in the Administration of Justice

Time and again, it has been suggested that adopting the prerequisite of a larger bench to
overrule a decided case ensures consistency in the decisions of the Apex Court. In Union of
India v. Paras Laminates17, it was asserted that “Persons affected by decisions of Tribunals
or Courts have a right to expect that those exercising judicial functions will follow the reason
or ground of the judicial decision in the earlier cases on identical matters”. It has been opined
that in the absence of such a strict rule of precedent, litigants would take every case to the

15
Note that Beaumont C.J. referred to the rule of constituting larger benches in the context of the High Court.
However, the procedure being identical at the levels of the Supreme Court and High court, his statements are no less
significant.
16
(1941) Bom. L.R. 864. See Rohinton Mehta, 50 Lectures on Jurisprudence (2nd edn Snow White 2000) 114. See
also G.C. Venkata Subbarao, Jurisprudence and Legal Theory (Eastern Book Company Lucknow 1997) 136.
17
AIR 1991 SC 696 : (1990) 4 SCC 453. See Harendra Prasad Sahu v. Orissa Sales Tax Tribunal, [1996] 103 STC
333; Ram Sewak Coal Depot v. Commissioner of Trade Tax, [2004] 138 STC 16 (All).
 highest court, in spite of a ruling to the contrary, in the hope that the decision may be
overruled.18

There is serious doubt about whether this objective is actually fulfilled. References to larger
benches have been ubiquitous in the history of the Supreme Court.19 The finality of orders is
always vulnerable of being overruled by a larger bench. In fact, the very purpose of dividing
the Court into benches is defeated if a bench of co-equal strength cannot overrule another
one. A circumstance such as this only leads to further delays, and reduces the volume of
work that can be processed by the Court, as a larger number of judges may be required to
deliberate on a particular matter. The situation at the ground level reflects the fact that larger
benches have neither encouraged consistency in decision making, nor reduced litigation on
appeal.20

Taking the example of the amendment of fundamental rights, from Shankari Prasad’s case21
to Kesavananda Bharati22, benches have become larger and larger and the law has been
transfigured on several occasions. The question one must ask is: if an adventurous attempt is
made to overrule Kesavananda, would it be necessary to constitute an unprecedented 15-
judge bench? Further, would there be any greater probability of the law remaining constant if
this is done? Empirical evidence itself proves otherwise. The practice of the highest court of
the land has made it apparent that the constitution of larger benches does not increase
certainty or uniformity in decisions.

(B) Judicial Decorum & Propriety

It has been asserted that the rule in question is a direct corollary of judicial propriety and is
meant to ensure that courts of co-ordinate jurisdiction, more often than not, adhere to the
cannons established by their predecessors. In the words of the Supreme Court itself, “[i]n a

18
Justice Mahavir Singh, “Precedent in Theory and Practice: A New Suggestion” (1980) 1 SCC(Jour) 52. See also
Roger E. Meiners, Al H. Ringleb, Frances L. Edwards, The Legal Environment of Business (9th edn Cengage
Learning 2006) 12.
19
P. Raja Ram, Jurisprudence (Ashwin Publications Chennai 1997) 145; Dr. S. Muralidhar, “Public Interest
Litigation” (1999) 35 Annual Survey of Indian Law 477.
20
Ibid.
21
AIR 1951 SC 458.
22
AIR 1973 SC 1461.
 multi-judge court, the Judges are bound by precedents and procedure. They could use their
discretion only when there is no declared principle to be found, no rule and no authority. The
judicial decorum and legal propriety demand that where a learned single judge or a Division
Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter
shall be referred to larger Bench. It is a subversion of judicial process not to follow this
procedure”23. Adherence to precedent enunciated by co-ordinate benches has been described
as a tradition followed by generations of judges.24

This justification does not seem to consider the deeper implications of conformity with
precedent. Judicial decorum in terms of maintaining consistency in decision-making is
ensured through discipline and self restraint of individual judges rather than the numerical
strength of benches. Cardozo emphasized this in his celebrated work, The Nature of the
Judicial Process, where, with reference to the Supreme Court of the United States of
America, he stated25:
“We have had ten judges, of whom only seven sit at a time. It happens again and again,
where the question is a close one, that a case which one week is decided one way might be
decided another way the next if it were then heard for the first time. The situation, would
however, be intolerable if the weekly changes in the composition of the court were
accompanied by changes in its rulings. In such circumstances, there is nothing to do but stand
by the errors of our brethren of the week before, whether we relish them or not.”

It is an individual judge’s institutional propriety and sense of professional ethos that must act
as a constraint in the process of ensuring consistency by abiding to established precedent.26
Cardozo then further asserts:
“A judge, even when he is free, is not wholly free. He is not to innovate at pleasure. He is not
a knight-errant roaming at will in pursuit of his ideal of beauty or of goodness. He is to draw

23
Sundarjas Kanyalal Bhathija v. Collector, Thane, AIR 1990 SC 261 : (1989) 3 SCC 396. See also Mahadeolal
Kanodia v. The Administrator General of West Bengal, AIR 1960 SC 926; Shri Bhagwan v. Ram Chand, AIR 1965
SC 1767 : [1965] 3 SCR 218.
24
Union of India v. Raghubir Singh, (1989) 2 SCC 754 at para 28.
25
Benjamin Cardozo, The Nature of the Judicial Process (Yale University Press 1995) 149-150.
26
Edward Wilfrid Thomas, The Judicial Process (Cambridge University Press 2005) 246; Dias, Jurisprudence
(Butterworths London 1985) 158. See also dissenting opinion of Sutherland J. in West Coast Hotel Co. v. Parrish,
300 U.S. 379, where it was recognized that “Self-restraint belongs in the domain of will and not of judgment”.
 his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to
vague and unregulated benevolence. He is to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system, and subordinated to the ‘primordial necessity
of order in the social life’.”27

Hence, it is observed that adherence to the principles of stare decisis is ensured primarily
through the discipline and the psyche of judges, rather than the size of benches constituted
for adjudication. It is submitted that notwithstanding the size of the bench, in the absence of
such judicial self-restraint, consistency in decision-making will be a distant dream.

(C) Increased Accuracy in Decision-making

Although no Indian court or authority has offered this justification, some authors have
employed the ‘Condorcet Jury Theorem’ to advance the fact that larger benches are more
likely to arrive at the ‘correct’ decision. The theory assumes that individual judges come to
the correct verdict in more cases than not. This thereby augments the probability of panels
comprising a larger number of judges arriving at sound decisions.28

However, this argument does not make an effective case, particularly in India. It is only a
blinkered perception of the ground reality that would lead anyone to suggest that bench sizes
should be continually incremented, considering the immense pressure of pendency on the
judiciary. Additionally, authors have put forth a counter-view that mathematically speaking,
expanding panels of judges when precedent is questioned is not worthwhile.29

Nevertheless it is palpable, however, that the practice of constituting larger benches to

reconsider precedent in India is based primarily on theoretical considerations of judicial
discipline and propriety rather than the practical aspect of accuracy in decision-making.30

27
Supra fn 25 at 141.
28
See Lewis A. Kornhauser, Lawrence G. Sager, “Unpacking the Court” (1986) 96 Yale L.J. 82. See also Benjamin
Alarie, Andrew Green and Edward Lacobucci, “Is Bigger Always Better? On Opitmal Panel Size, with Evidence
from the Supreme Court of Canada” Legal Studies Research Series, No. 08-15, available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1152322.
29
See, for example, Benjamin Alarie, supra fn 28.
30
See Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767 : [1965] 3 SCR 218.
 Hence, it is evident that the multifarious grounds put forth to justify a reference to larger
benches are misconceived.

V. PRINCIPLES GOVERNING RECONSIDERATION OF PRECEDENT IN OTHER NATIONS

Although the socio-political climate in other jurisdictions is divergent from that in India, an
examination of the corresponding practice in other jurisdictions forms a useful guide in
understanding the concept of adherence to precedent and evaluating a suitable model tuned to the
Indian setup.

(A) United States of America

Since the Supreme Court of USA sits en banc in every case, the question of referring
contentious precedent to larger benches does not arise. The Supreme Court has overruled
itself on several occasions,31 but it is only inclined to do so based on a ‘special
justification’32. The Supreme Court emphasized the force of its precedents when it
recognized:33
“it is the duty of a court of appeals to follow the precedents of the Supreme Court until the
Court itself chooses to expressly overrule them. Thus, even where a Supreme Court
precedent contains many ‘infirmities’ and rests upon ‘wobbly, moth-eaten foundations,’ it
remains the Court’s prerogative alone to overrule one of its precedents.” This position is
similar to that in India.

In spite of being vested with the power to overrule itself, the Supreme Court has ensured
sufficient consistency in the administration of justice by recognizing that adherence to
precedent is ordinarily a cardinal principle of adjudication.34 In fact, Brandeis J. has
categorically asserted that “in some cases it is more important that the applicable rule of law
be settled rather than be settled right”.35

31
State of Washington v. Dasan & Co., 264 US 219.
32
Dickerson v. United States, 530 US 428 at 443; Harris v. United States, 536 US 545; Arizona v. Rumsey, 467 US
203.
33
State Oil Co. v. Khan, 522 US 3.
34
California v. F.E.R.C., 495 US 490.
35
Burnett v. Coronado Oil & Gas Co., 285 US 393 at 406.
 The US Supreme Court offers a functional model of a system where adequate consistency in
decision-making is maintained in a Court which permits a co-ordinate bench to overrule its
predecessors, by means of the self-restraint and discipline exercised by the judges
themselves.

Interestingly, in Union of India v. Raghubir Singh36, Chief Justice Pathak asserted that the
practice followed by US Supreme Court is ideal in form. The issue in contention was
whether a division bench of two judges is bound by a bench of three judges. While affirming
that precedents bind benches of a lesser numerical strength, he stated that in such a scenario,
it is permissible for the smaller bench to refer the matter to a larger bench for
reconsideration. Pathak C.J. opined that it is only the volume of work which encumbers the
Courts which has lead to the division of the Supreme Court of India into benches. He
thereafter recognized that the rule requiring reference to larger benches is to ensure
uniformity in adjudication.37

However, it may be noticed that His Lordship was not mindful of the fact that in the US
Supreme Court, bench strength remaining constant, it is the number of concurring opinions
which is decisive. In other words, the practice adopted by the Supreme Court of India is one
of considerable divergence from that of USA.

(B) United Kingdom

For a large segment of the twentieth century, the House of Lords regarded itself to be
absolutely bound by its own decisions. Subsequently, by virtue of the 1966 Practice
Statement, it has conferred upon itself the power to overrule its previous judgments. In
practice, however, this power is exercised sparingly and after heavy deliberation.38

It is unprecedented for the House of Lords to sit en banc to adjudicate upon matters. Usually,
it is divided into Appellate Committees consisting of five judges each. Although an Appellate

36
Union of India v. Raghubir Singh, (1989) 2 SCC 754 at para 28.
37
Ibid.
38
See, for eg., Conway v. Rimmer, [1968] AC 910, which overruled Duncan v. Cammell Laird & Co., [1942] AC
624.
 Committee hearing a significant case may consist of a larger number of members, there is no
strict requirement of constituting larger panels when precedent is to be reconsidered.

Despite the absence of a stringent practice of referring matters in which precedent is

questioned to larger panels, adherence to previous decisions is maintained through judicial
forbearance, conservatism and comity. Brett M.R. expounded this in The Vera Cruz:39

“… there is no common law or statutory rule to oblige a court to bow to its own decision. It
does so… on the grounds of judicial comity.”

(C) Australia
The High Court of Australia is similar to the Supreme Court of India, in that it is bifurcated
into divisions of judges. Though the Court has vested itself with the power to reconsider its
own judgments, a catena of cases has established that this discretion is to be exercised with
caution and circumspection.40 Overruling, and even distinguishing precedent has been
described as involving a ‘grave judicial responsibility’.41

The momentous case which transformed the process of challenging precedent in Australia is
Evda Nominees Pty Ltd. v. Victoria.42 It was affirmed that counsel wishing to submit that a
High Court decision be reopened must seek leave to do so, and once such leave has been
given, the submission is required to be heard by a full bench of available justices.43 The High
court offered justification for this metamorphic change in the following words:
“Although the Court is not bound by its own decisions, that does not mean that the Court will
hear full argument on every occasion when counsel wishes to contend that a previous case
was wrongly decided.”44

39
The Vera Cruz (No. 2), (1884) 9 PD 96, CA.
40
See HC Sleigh v. South Australia, (1977) 136 CLR 475; Federated Engine-Drivers and Firemen’s Association of
Australasia v. Broken Hill Co. Pty Ltd, (1913) 16 CLR 245; Australian Agricultural Co. v. Federated Engine-
Drivers and Firemen’s Association of Australasia, (1913) 17 CLR 261; Queensland v. Commonwealth, (1977) 139
CLR 585.
41
Victoria v. Commonwealth, (1957) 99 CLR 575.
42
(1984) 154 CLR 311.
43
See also Allders International Pty. Ltd. v. Commissioner of State Revenue, (1996) 186 CLR 630.
44
Evda Nominees Pty Ltd. v. Victoria, (1984) 154 CLR 311.
 The only exception to this process is when the decision in question consisted of a tied vote, as
such decisions do not enjoy the status of a precedent.45

It is significant to mention that at least the strict requirements for challenging established
precedent meets the goal set out to be achieved: adequate consistency and certainty in the
administration of justice. In India, however, challenging of precedent is permitted unfettered,
encouraging ambitious and enterprising litigation.

(D) South Africa

The Constitutional Court of South Africa sits en banc to adjudicate upon every case. It
ordinarily considers itself bound by its previous decisions. However, the Court has ventured
to overrule precedent when it has believed that the erstwhile decision is clearly incorrect.46
The Supreme Court of Appeal, which is the highest court in all matters other than those
concerning the Constitution, also follows a similar practice.47

In South Africa, while the judgments of a larger panel of judges absolutely binds decisions of
a smaller number of judges, a co-ordinate bench of equal numerical strength is only
presumptively bound by the same, and may choose to overrule its precedent if it is found to
be manifestly erroneous.48 The absence of any requirement for composing larger benches to
overrule precedent is conspicuous.

(E) Canada
The Supreme Court of Canada, which consists of nine judges, sits in panels of five, seven or
nine judges, as determined by the Chief Justice for each case. Initially, when appeals were
available from the Canadian Supreme Court to the Judicial Committee of the Privy Council,
barring in exceptional circumstances, the Court regarded itself as bound by its own rulings.49

45
FCT v. St Helens Farm, (1981) 146 CLR 336; Re Wakim (1999) 163 ALR 270.
46
C. G. Van der Merwe, J. E. Du Plessis, Introduction to the Law of South Africa (Kluwer Law International 2004)
45. See also Ex parte Ministry of Safety and Security: In re S v. Walters, 2002 (4) SA 613 (CC); Shabalala v.
Attorney-General, Transvaal, and Another, 1995 (1) SA 608 (T); Gumede and Others v. Attorney-General,
Transvaal, 1994 (6) BCLR 85 (T).
47
National Media Ltd. v. Bogoshi, 1998 (4) SA 1196 (SCA).
48
C. G. Van der Merwe, supra fn 46 at 44.
49
Stuart v. Bank of Montreal, (1909) 41 SCR 516.
 In recent times, however, the Court has rendered itself free to depart from its own
decisions.50

As is the case with the United Kingdom and South Africa, in spite of the possibility of
constituting larger benches falling within the institutional framework of the Apex Court,
there is no stringent requisite of forming a larger bench to overrule established precedent.

VI. PROBING THE POSSIBILITY OF ACCORDING WIDER POWERS TO BENCHES OF EQUIVALENT

STRENGTH
There are two approaches that may be adopted to determine bench strength in cases where
precedent is called into question: the theoretical and the practical. The theoretical approach is
postulated on the fact that a bench should not be able to overrule a past decision if the number of
concurring opinions in the latter is greater than that in the former. At the other end of the
spectrum, the practical approach considers the feasibility of determining bench size and
composition in the light of the volume of work which the Supreme Court is burdened with and
the pressure of pendency on the judicial system. Striking a delicate balance between these
competing values is essential.

Three possible systems that may be followed in India are examined hereinbelow. None of them
is flawless. However, the system which ensures the attainment of a sufficient equilibrium
between the theoretical and the practical considerations is proposed as a model most suited to
India.

(i) When precedent is called into question, a bench comprised of a larger number of judges
should be formed, such that a simple majority of the same would be greater than or equal to
the number of concurring opinions in the previous decision. For example, if there are four
concurring opinions in the decision of a five judge bench, a seven judge bench should be
constituted. Similarly, in a scenario where a unanimous decision of a five judge bench is to
be reconsidered, a nine judge bench should be formed for the purpose.

50
Re Farm Products, Marketing Act (1957), 7 DLR (2nd) 257. See Michael Zander, The Law Making Process (6th
edn Cambridge University Press 2004) 261; R. v. Salituro, (1991) 3 6 SCR 654.
 Fallacy – Although the theoretical element of a greater number of concurring opinions is
satisfied perfectly, this system would not be practically sound in India, where a large
backlog of cases and several rules of procedure would lead to a further increase in the
incubation period between the commencement of legal proceedings and the declaration of
the verdict.

(ii) A bench comprising the same number of judges as the precedent being reconsidered should
be constituted, and the decision of the majority of the later bench shall prevail,
notwithstanding the number of concurring opinions in that bench or the previous one. Some
argue that such a system is consistent with the interpretation placed upon Article 141 in
Bengal Immunity51 which postulates that the Apex Court is not bound by its own
judgments.52
Fallacy – The number of concurring opinions may still be lower than that in the overruled
decision, resulting in the same anomaly that exists in the Indian judicial system today. This
system tilts much too heavily towards the practical aspect of constituting benches.

(iii) A bench consisting of the same number of judges (as that in the precedent) may be
constituted, with the previous case only standing overruled if there is an equal or greater
number of concurring opinions. For example, a unanimous decision of a bench of five
judges would only be overruled by a unanimous decision of a later bench of the same
number of judges.
Fallacy – This system could lead to situations where in a subsequent case, judges may be in
a majority in the bench itself, but their decision still may not stand as authoritative. This
would undermine the dignity and authority of the panel of judges and the weightage placed
upon their opinions.
Advantage – Unlike the other systems, the fallacy in this one may also prove to be
beneficial, as judgments which are unequivocally passed by the court would only be
overruled only if the opposite view is equally unanimous. It is illogical for a bench which is
divided on thin lines to overrule a previous decision which was unanimous in its verdict.

51
AIR 1955 SC 661.
52
P. Raja Ram, supra fn 19 at 147.
 Further, a practice of this nature seems to attain a felicitous blend between the theoretical
and the practical considerations, as concurring opinions rather than bench sizes would
prevail, and, at the same time, bench strength would be reduced to a minimum rather than
continually expanding.

Therefore, it is evident that the third proposition specified above is conducive to the conditions
prevalent in the Indian judicial system, and should be adopted to enhance the efficiency and
efficacy of adjudicating upon cases involving the reconsideration of precedent.

VII. CONCLUSION
The system of referring cases in which precedent is questioned to larger benches is not suited to
the peculiar conditions prevailing in India. With a copious corpus of pending litigation, and the
widest conceivable range of discretionary jurisdiction being conferred upon the Supreme Court
by Article 13653; it is desirable that benches of co-equal strength be permitted to overrule
previous decisions.

The time has come for the fiction created by law that a decision is that of the bench rather than
the number of opinions in the majority, to succumb to the truth and accord greater respect to
dissent expressed by judges. The touchstone of referring matters to larger panels of judges,
which is to ensure uniformity in the administration of justice, has proved to be substantially
unfounded. As elucidated upon previously, consistency is brought about by judicial comity and
discipline rather than bench strength and composition. In the words of Justice Michael Kirby,
himself an acclaimed dissenter, “[j]udges, like other public officials, wield power, even great
power. With that power comes commensurate responsibility.” 54 It is this responsibility which
would infuse consistency into a streamlined system of composition of benches.

53
Rajeev Dhavan, R. Sudarshan, Salman Khurshid, Judges and the Judicial Power (N.M. Tripathi Bombay 1985)
329.
54
Justice Michael Kirby, The Judges (Australian Broadcasting Corporation Sydney 1983) 45.