Supreme Court: Bench’s size matters, not number of concurring judges

Published on Sep 19, 2022 11:51 PM IST

Settling the legal conundrum, the constitution bench led by Justice Indira Banerjee said: “The majority decision of a bench of larger strength would prevail over the decision of a bench of lesser strength, irrespective of the number of judges constituting the majority.”

The size of a bench matters, a constitution bench of the Supreme Court ruled on Monday (HT File)
The size of a bench matters, a constitution bench of the Supreme Court ruled on Monday (HT File)
By, New Delhi

The size of a bench matters, a constitution bench of the Supreme Court ruled on Monday, holding that the majority view of a larger bench will always prevail over a bench of lesser strength even if the latter saw a greater number of judges agreeing with each other.

Simply put , the court verdict establishes that a 4-3 majority view will overrule a unanimous view of a bench of 5 judges -- only because the former is a numerically superior bench.

Settling the legal conundrum, the constitution bench led by Justice Indira Banerjee said: “The majority decision of a bench of larger strength would prevail over the decision of a bench of lesser strength, irrespective of the number of judges constituting the majority.”

The bench, which also included justices Hemant Gupta, Surya Kant, MM Sundresh and Sudhanshu Dhulia, also relied upon a 2021 judgment by a coordinate five-judge bench on the issue. The 2021 judgment laid down that precedential legitimacy of a larger bench ruling must be considered a thumb rule for stability in the law.

Borrowing from the 2021 ruling, the court on Monday declared that the overall headcount of judges on a bench will guide the doctrine of precedence irrespective of the number of judges constituting the majority in the smaller bench. “In view of Article 145(5) of the Constitution of India, concurrence of a majority of the judges at the hearing will be considered as a judgment or opinion of the court,” it said.

Article 145(5) states that no judgment shall be delivered by the Supreme Court without the concurrence of a majority of the judges present at the hearing of the case, but nothing in this clause shall prevent a judge from delivering a dissenting judgment.

Justice Hemant Gupta, writing a separate but concurring opinion, added: “It is the strength of the bench and not the number of judges who have taken a particular view which is said to be relevant. Thus, it has been rightly concluded that the numerical strength of the judges taking a particular view is not relevant, but the bench strength is determinative of the binding nature of the judgment.”

The five-judge bench was called upon to decide the issue following a reference made by a two-judge bench in 2017. This bench questioned the rationale of deciding judicial precedents based only on the numerical strength of the bench while not taking into account the number of judges adopting a view.

“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,” the two-judge bench, in its November 2017 order, had said.

The question came up before the two-judge bench as it dealt with a batch of taxation cases, which involved two lines of judgments by the apex court. During adjudication, this bench discovered that numerically, the opinion was 9-6 if one went simply by the number of judges across benches. But since the view taken by six judges included a larger bench, what the nine judges separately held (in separate orders) was not considered precedent on the point of law.

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