Central Board of Dawoodi
Bohra Community & ANR Vs. State of Maharashtra & Anr  Insc 771 (17
Cji R.C. Lahoti, Shivaraj
V. Patil, K.G.Balakrishnan, B.N.Srikrishna & G.P.Mathur.
J U D G M E N T I.A. NO. 4 in W.P. (C)740 OF 1986 R.C. LAHOTI, CJI Bombay 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 & Ors. (2001) 4 SCC 448 followed in four
subsequent Constitution Bench decisions namely Pradip Chandra Parija & Gani
& Ors. - (2002) 10 SCC 437 and Arya Samaj Education (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
Singh (dead) by Lrs. etc. (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 (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 into consideration the
law laid down in Parija's case and also 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
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' 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 (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' 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) 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 (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 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'
(1968) AC 910, 938).
Reference was also made to the doctrine of stare decisis.
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 both would be immediate
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.
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
I.A. No.4 is disposed of.