Judicial comity over arithmetic

Source: The post is based on an article “Judicial comity over arithmetic” published in The Hindu on 18^th October 2022.

Syllabus: GS 2 – Governance

Relevance: Supreme Court judgement

News:  A Constitution Bench of the Supreme Court has held that a judgment delivered by a larger Bench will prevail over the decision of a smaller Bench if the decision is given by the majority of the judges of the larger bench.

This means that out of 7 judges of the larger bench even if 4 judges give the ruling then it would overrule the judgment of the smaller bench. Even if all the judges of the smaller bench have given the judgment unanimously.

What is the present rule?

It is a well-established fact in law that the decision of a superior court will always be binding on a lower court and that the decision of a larger Bench will always prevail over a smaller Bench of the same court.

This has been done to ensure stability and consistency in the decisions of the court.

A vast majority of cases before the Supreme Court is heard and decided by a Bench of two judges (Division Bench) or three (full Bench).

The bench with equal number of judges cannot overrule or reconsider a decision of a coordinate Bench.

Further, the doubt and conflict between decisions of co-equal Benches is referred to the Chief Justice of India and this leads to the formation of larger benches.

What are the problems associated with the larger bench?

The decision of the majority of the judges is treated as the decision of entire judges of the bench.

This raises the issue whether number of judges supporting the judgment should be given priority over the larger bench.

SC cleared this doubt that if number judges is given importance and not the strength of the bench then every decision of a larger bench could be doubted and overruled.

This could make the decisions of the larger bench to fall and be instable. Therefore, the current decision of the SC highlights the Rule of Precedents.

What is the Doctrine of Precedents and what are the problems associated with it?

The Doctrine of Precedents states that “a decision that has already been taken by a higher court is binding to the lower court and at it also stands as an example to the lower court judgment which cannot be altered by a lower court.”

If this doctrine is followed blindly then it could have serious consequences as the correctness of a decision will be dependent on the decision of the higher court’s bench rather than based on reasons.

However, SC has also said that a decision merely considered by a greater number of judges does not mean that it is correct, especially in the case of decision that has been arrived by a slim majority (4:3).

Therefore, the Doctrine of Precedents holds importance in India but this does not mean that the larger bench/higher court is always correct and there is a way to review its judgment.

How the Doctrine of Precedents is followed in other countries?

The issue of the precedent is generally avoided in countries like the US and South Africa.

Whereas, the U.K. and Australia follow a system similar to that of India but the entire act of ‘reconsidering a precedent’ is viewed as a delicate and grave judicial responsibility in these countries.

What is the way forward?

A certain change is required in the composition of larger bench to avoid conflicts arising out of the number judges supporting a ruling.

For example, if a five-judge unanimous decision is referred to a larger Bench, it should be considered by a nine-judge Bench rather than seven, so that it would in any case be decided by a majority of at least five judges.

This will ensure a quorum with a greater majority coming up to the decision than the lower Bench.