New Delhi: Five judges decide an issue unanimously. Can this judgment be overruled by a 4:3 majority? Will the unanimous decision of five judges have lesser strength than the four judges on the subsequent bench?
The answer is yes since the latter is a seven-judge bench.
As a matter of practice, the Supreme Court has been of the opinion that views of four judges will prevail over five judges in such a situation.
But decades on, a Supreme Court bench has questioned the rationale of deciding judicial precedents in this manner as it appealed for a review of the convention.
"Has the time come to tear the judicial veil and hold that in reality a view of five learned Judges cannot be overruled by a view of four learned judges speaking for a bench of seven learned judges? This is a question which needs to be addressed and answered," held a bench of justices Rohinton F Nariman and Sanjay K Kaul.
In a recent judgment, the two judges have noted that it is high time that an authoritative principle is laid down on how and when a judgment is to be considered as overruled by a larger bench since numeric strength of judges apparently is the basis of determining precedents.
According to the bench, the time has come to "tear the judicial veil" and examine that views expresses by a certain number of judges should matter and not the strength of the bench that delivers judgment at a later time.
As majority opinion is the law as envisaged under Article 145(5) of the Constitution, the court has now questioned if the majority of only the subsequent benches should be the guiding factor.
Justices Nariman and Kaul have referred the issue to a larger bench, requesting the Chief Justice of India to constitute an appropriate bench. In all likelihood, a Constitution Bench, comprising at least five judges, will now decide.
The question came up before the two-judge bench as it dealt with a batch of taxation cases. The cases involved two lines of judgments by the apex court.
Interestingly, the bench discovered that numerically, the views were divided by 9:6 if one went by the number of judges. But since the view taken by six judges included a larger bench, what the nine judges had held was not the precedent on the point of law.
The two judges said that this “conundrum in so far as the doctrine of precedent qua this court is concerned,” should be resolved by setting up an appropriate bench so that a more suitable rule of procedure is arrived at by the top court, which is the final word in pronouncing judicial precedents.
This bench referred to similar issues raised by Justice Madan B Lokur in his separately authored judgment in the National Judicial Appointments Commission (NJAC) case.
Justice Lokur had then questioned whether only the numbers in a subsequent bench are what really matters. He had also cited the dangers of following this rule by pointing out that if this were to hold the field then unanimous opinion by nine judges in the Third Judges Case (that established primacy of the Chief Justice of India in appointing judges) could be conveniently overruled by only six judges in a 11-judge bench.
Justices Nariman and Kaul referred to this “anomalous” situation referred to by Justice Lokur in his 2015 judgment and said that the larger bench should now remove all the incongruities and lay down a principle to guide the judges in future.
Interestingly, during a more recent hearing, another Supreme Court bench headed by Justice Ranjan Gogoi also came across a similar situation while hearing a PIL that has sought lifetime ban on convicted legislators.
Justice Gogoi, too, noticed that although a particular view had been adopted by more number of judges, their judgment was treated as overruled by a divided opinion of majority in the larger bench.
Senior advocate V Mohana had then apprised Justice Gogoi that the issue now stood referred to the Constitution Bench by Justice Nariman’s bench.