TMI Blog2004 (12) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... of, 1949) was ultra vires the Constitution as it violated Article 26(b) of the Constitution and was not saved by Article 25(2). On 26-2-1986 the-present petition has been filed seeking re-consideration, and over-ruling, of the decision of this Court in Sardar Syedna Taher Saifuddin Saheb's case (supra) and then issuing a writ of mandamus directing the State of Maharashtra to give effect to the provisions of the Bombay Prevention of Ex-communication Act, 1949. 2. The matter came up for hearing before a two-Judge Bench of this Court which on 25-8-1986 directed 'rule nisi' to be issued. On 18-3-1994 a two-Judge Bench directed the matter to be listed, before a seven-Judge Bench for hearing. On 20-7-1994 the matter did come up before a seven-Judge Bench which adjourned the hearing awaiting the decision in W.P. No. 317 of 1993. On 26-7-2004 IA No. 4 has been filed on behalf of respondent No. 2 seeking a direction that the matter be listed before a Division Bench of two judges. Implicitly, the application seeks a direction for non-listing before a Bench of seven Judges and rather the matter being listed for hearing before a Bench of two or three judges as is the normal practice of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the co-ordinate strength in which case the matter may be placed for consideration by a Bench of larger quorum. In other words, a Bench of lesser quorum cannot express disagreement with, or question the correctness of, the view taken by a Bench of larger quorum. A view of the law taken by a Bench of three judges is binding on a Bench of two judges and in case the Bench of two judges feels not inclined to follow the earlier three-Judge Bench decision then it is not proper for it to express such disagreement; it can only request the Chief Justice for the matter being placed for hearing before a three-Judge Bench which may agree or disagree with the view of the law taken earlier by the three-Judge Bench. As already noted this view has been followed and reiterated by at leasts three subsequent Constitution Benches referred to hereinabove. 6. Ms. Indra Jaisingh, the learned senior counsel for the petitioners submitted that the view of the law taken by the abovesaid four Constitution Benches is per incuriam and is not the correct law as previous decision of this Court by a Constitution Bench in Union of India and Anr. v. Raghubir Singh (dead) by Lrs. etc. (1989) 2 SCC 754 takes a cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r considerations with the Chief Justices, in whom such authority devolves by convention, may find most appropriate. The Constitution Bench reaffirmed the doctrine of binding precedents as it has the merit of promoting certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individuals as to the consequence of transactions forming part of his daily affairs. 9. Further, the Constitution Bench speaking through Chief Justice Pathak opined that the question was not whether the Supreme Court is bound by its own previous decisions; the question was under what circumstances and within what limits and in what manner should the highest Court overturn its own pronouncements. In our opinion, what was working in the mind of His Lordship was that being the highest Court of the country, it was open for this Court not to feel bound by its own previous decisions because if that was not permitted, the march of Judge-made law and the development of constitutional jurisprudence would come to a standstill. However, the doctrine of binding precedent could not be given a go-by. Quoting from Dr. Alan Paterson's Law Lords (pp.156- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (supra); Conway v. Rimmer, (1968) AC 910, 938). 10. Reference was also made to the doctrine of stare decisis. His Lordship observed by referring to Sher Singh v. State of Punjab, (1983) 2 SCC 344, that although the Court sits in Divisions of two and three Judges for the sake of convenience but it would be inappropriate if a Division Bench of two Judges starts overruling the decisions of Division Benches of three. To do so would be detrimental not only to the rule of discipline and the doctrine of binding precedents but it will also lead to inconsistency in decisions on points of law; consistency and certainty in the development of law and its contemporary status, both would be immediate casualty. 11. In Raghubir Singh Ors. case (supra), a Bench of two learned Judges had made a reference to a Larger Bench for reconsideration of the questions decided earlier by two Division Benches of the quorum of two and three respectively. The Constitution Bench then opined that the matter could be heard by the Constitution Bench on such reference. It is pertinent to note that in Raghubir Singh Ors. case the Constitution Bench has nowhere approved the practice and propriety of two-Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Chief Justice and request for the matter being placed for hearing, before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for 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, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. (3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons it may proceed to hear the case and examine the correctness ..... X X X X Extracts X X X X X X X X Extracts X X X X
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