A five-judge Bench led by the Chief Justice will Tuesday
take up for resolution a conflict between two orders passed by the court.
Why is there a difference in the size of the Benches of
the Supreme Court?
In his original draft of the Constitution, Sir B N Rau,
Advisor to the Constituent Assembly, proposed (on the advice of Justice Felix
Frankfurter of the US Supreme Court) that India’s Supreme Court should exercise
its jurisdiction as a full court, and not as separate Benches. But this was not
endorsed by the Constituent Assembly, which was keen to make optimal use of
judicial time.
At the time of the commencement of the Constitution in 1950,
the Supreme Court was envisaged as having a Chief Justice and seven puisne
judges, with Parliament having the power to increase this number. In the early
years, all judges sat together, but as the work of the court increased and a
backlog accumulated, Parliament increased the number of judges from eight in
1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2008 (the
current strength). Judges started sitting in smaller Benches of two or three,
coming together in larger Benches of five or more only in certain cases.
This is different from the US, where all nine Supreme Court
judges sit together. In the UK, Australia, Canada and South Africa, too, judges
generally sit together, or in large Benches. Since most of these courts have
seven to nine judges, even five- or seven-judge judgments reflect the opinion
of the majority.
What sort of cases are heard by the larger Benches?
Under Article 145(3), “any case involving a substantial
question of law as to the interpretation of the Constitution” must be decided
by a Bench of at least five judges. Such a Bench is called a Constitution
Bench. However, in several cases, constitutional issues have been decided by
smaller Benches as well.
Who constitutes the Benches, and who sits on them?
Even though the Chief Justice of India is the head of the
judiciary, he is only the first among equals. The Constitution does not make
him the “Master of Rolls”; it is the Supreme Court Rules that vest in him the
power to constitute Benches as part of his administrative responsibilities.
Though all judges, including the CJI, are equal in their judicial powers,
ideally, the vast experience of senior judges should be used in Constitution
Benches. However, legally speaking, junior judges too, can be picked.
Is the Supreme Court bound by its own decisions?
In Bengal Immunity Co. Ltd vs State of Bihar & Ors
(September 6, 1955), the Supreme Court affirmed the power to overrule its own
decisions, but stressed that this power must be exercised sparingly and with
caution.
Are smaller Benches bound by judgments of larger Benches?
This matter is fairly settled — a Bench of the Supreme Court
must follow a decision delivered by a Bench of a larger or even equal strength.
In case of inability to agree, the only option available is to refer the matter
to the CJI, requesting that a larger Bench be constituted to resolve the
conflict.
* The law laid down by a larger Bench of the SC is binding
on any subsequent Bench of lesser or co-equal strength.
* A Bench of lesser quorum cannot doubt the correctness of
the view of the law taken by a Bench of larger quorum, and in case of doubt all
that the Bench of lesser quorum can do is to request the CJI to place the
matter before a Bench of larger quorum than the Bench whose decision has come
up for consideration.
* It will be open only to 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.
That said, this is only a question of judicial propriety and
the need for certainty in law — there is no provision in the Constitution to
the effect that a smaller Bench of the Supreme Court is bound by judgments of
larger Benches.
What are some examples of Benches overruling decisions of
smaller Benches?
The emphasis on the doctrine of stare decisis (see box
above) notwithstanding, the Supreme Court has overruled itself in a large
number of cases:
* An 11-judge Bench in I C Golaknath & Ors vs State Of
Punjab & Anr (February 27, 1967) overruled two earlier judgments of
Constitution Benches — Shankari Prasad Singh Deo vs Union of India (October 5,
1951) and Sajjan Singh vs State of Rajasthan (October 30, 1964). The decision
of the 11-judge Bench was itself overruled by a 13-judge Bench in Kesavananda
Bharati vs State Of Kerala and Anr (April 24, 1973). While Shankari Prasad and
Sajjan Singh had given unlimited powers to Parliament to amend the
Constitution, Golaknath said Parliament could not amend the Constitution.
Kesavananda Bharati held Parliament could amend any provision of the
Constitution, but could not destroy its basic structure.
* In Maneka Gandhi vs Union of India (January 25, 1978), the
Supreme Court overruled A K Gopalan vs State of Madras (May 19, 1950). It said
that to deny personal liberty under Article 21, a mere law will not suffice (as
had been held in Gopalan); such a law must also be reasonable, fair, just, and
non-arbitrary.
Has a smaller Bench ever overruled the judgment of a
larger Bench?
The primacy of the CJI’s opinion was not explicitly held as
part of the basic structure by Justice J S Verma in the nine-judge Bench
decision in the Second Judges’ Case (Supreme Court Advocates on Record
Association vs Union of India, October 6, 1993), but a five-judge Bench held so
in the NJAC judgment of October 16, 2015. In several cases, smaller Benches
have not followed the doctrine of procedural due process laid down in Maneka
Gandhi.
Meaning: Key legal terms
Stare decisis: Latin; stare decisis et non
quieta movere is to not disturb settled matters. Like other common law countries
(where precedent is important), in India, too, there is a high degree of
predictability in judicial decisions, as cases are decided based on past
decisions in similar cases.
Ratio decidendi: Latin; refers to the reason or
rationale for a decision. It is that part of a judgment by which lower courts
are bound.
Obiter dictum: Latin, plural obiter dicta;
refers to remarks made in passing. High Courts by and large agree that obiter
dicta, too, come within the purview of Article 141 of the Constitution (“The
law declared by the Supreme Court shall be binding on all courts within the
territory of India.”), provided they aren’t mere casual observations.
Ex cathedra: Latin; “with the full authority of
office”. Not everything a judge says is ex cathedra. Mere casual expression carry no weight at all.
Nor every passing expression of a judge, however eminent, can be treated as an
ex cathedra statement having the weight of authority.”
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