Can a two judges bench of the Supreme Court doubt the correctness of an earlier larger bench judgment? The answer to this question can be found in the Constitution Bench judgment in Central Board of Dawoodi Bohra Community v. State of Maharashtra:
The Judgments rendered by a Bench of larger strength are binding on Benches of a less or equal strength.
If a Bench of lower strength is doubtful about the correctness of a judgment delivered by a Bench of larger strength, it cannot disagree or dissent from the view taken by the larger Bench. In case of doubt, it can invite the attention of the Chief Justice of India to its opinion and request the Chief Justice to list the matter before a Bench, the strength of which is greater than that which delivered the judgment which has been doubted. The correctness of the view taken by any Bench can only be doubted by a Bench of equal strength. The matter will then be placed for hearing before a Bench of greater strength.
However, in Aligarh Muslim University vs Naresh Agarwal 2024 INSC 856, the Union of India raised a preliminary objection and contended that the two judges bench in Anjuman-e-Rahmaniya v. District Inspector of Schools could not have referred the correctness of the decision rendered by the Constitution Bench in S Azeez Basha v. Union of India directly to a Bench of seven Judges. It was suggested that the two-Judge Bench ought to have referred the matter to a Bench of equal strength to the decision the correctness of which is doubted, that is, a Bench of five Judges. However, the CJI, speaking for the majority, observed that, in Anjuman, the two-Judge Bench requested that the matter be placed before the Chief Justice of India for being heard by a Bench of seven Judges. This falls within the permissible limits laid down in the Central Board of Dawoodi Bohra Community, the Court said.
Justice Dipankar Datta, in his dissenting opinion, said that a bench sitting in a combination of 2 (two) Judges is bound by what is laid down by a Constitution Bench of 5 (five) Judges. Should the bench of lesser strength have valid reasons to disagree with the view expressed by the latter bench of 5 (five), the former bench of 2 (two) cannot straightway make a reference for being placed before a Constitution Bench of greater numerical strength, the judge added.
“If “doubting the correctness of the opinion in Azeez Basha (supra), without disagreeing with it” could permit the bench in Anjuman-eRahmania (supra) to request the Chief Justice of India to place the matter for being heard by a bench of 7 (seven) Judges and such a course of action were held to be permissible and within the limits of Central Board of Dawoodi Bohra Community (supra), as proposed in the majority opinion (paragraph 39 of the revised draft) – I am afraid, tomorrow, a bench of 2 (two) Judges, referring to opinions of jurists [as in Anjuman-e-Rahmania (supra)] could well doubt the ‘basic structure’ doctrine and request the Chief Justice of India to constitute a bench of 15 (fifteen) Judges.”, the judge said.
The judge further observed that the reasoning in CJI’s majority judgment appears to be based on an incomplete reading of paragraph 12(2) of Central Board of Dawoodi Bohra Community (supra). “Though the second sentence of the said paragraph is a bit ambiguous, but the same – read harmoniously with the other sentences – would lead to the inevitable conclusion that even in case of a doubt being expressed by a bench of 2 (two) Judges in respect of the ratio laid down by a bench of 5 (five) Judges, the case on a reference being made (with sufficient reasons) ought to be first placed before a bench of 3 (three) Judges, and not to a bench of either 5 (five) or 7 (seven) Judges. If, indeed, the proposed view in the majority opinion were accepted, all the precedents referred to above would stand overruled and a legal principle, which hitherto no bench of this Court did, would be laid down and, in the process, the floodgates for unmeritorious references opened. In my humble view, that would be an incorrect and improper approach.”, the judge said.
Justice Satish Chandra Sharma also opined that the reference order in Anjuman was not wholly appropriate.
Reading together the majority judgment and the dissenting opinions in AMU case, it is clear that the Supreme Court has fumbled with the doctrine of judicial discipline. What if we have a Chief Justice of India and a two judges bench who ‘doubt’ the correctness of Kesavananda Bharati judgment? Will we see a Fifteen Judges Bench hearing this reference?
This column is written by Advocate Ashok Kini, an Advocate Practicing in High Court Of Kerala.