TMI Blog2001 (12) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned judges also comes to the conclusion that the earlier judgment of a Bench of three learned judges is incorrect, reference to a Bench of five learned judges is justified. Thus are of the view that these matters could only have been referred to a Bench of three learned judges. We, accordingly, order that they shall be placed before a Bench of three learned judges. Having regard to the lapse of time, they shall be so placed in January, 2002. - C.A. 791 OF 1993 - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly, referred the matter before them directly to a Constitution Bench. The Constitution Bench that then heard the matter took the view that the decision of a Constitution Bench binds a Bench of two learned judges and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, the Bench of two learned judges could have ordered that the matter be heard by a Bench of three learned judges. Learned counsel for the appellants drew our attention to the provisions of article 145, clauses (2) and (3) of the Constitution of India. Clause (2) empowers the making of rules to fix the minimum number of judges of this court to sit for any purpose. Clause (3) says that the minimum number of jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judge Bench was per incuriam. In learned counsel's submission, the present was a case which justified the reference directly to a Constitution Bench. The learned Attorney-General submitted that a Constitution Bench judgment of this court was binding on smaller Benches and a judgment of three learned judges was binding on Benches of two learned judges--a proposition that learned counsel for the appellants did not dispute. The learned AttorneyGeneral drew our attention to the judgment of a Constitution Bench in SubCommittee of Judicial Accountability v. Union of India [1992] 4 SCC 97 where it has been said that 'no co-ordinate Bench of this court can even comment upon, let alone sit in judgment over the discretion exercised or judgment ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not necessary for us to go into the hypothetical cases spoken of by learned counsel for the appellants where a reference directly by a Bench of two learned judges to a Constitution Bench would be justified. Suffice it to say that, for the present, we find it very difficult to accept the correctness of such hypothesis. The only situation when a two-judge Bench may refer a matter directly to a Constitution Bench is when the provisions of clause (3) of article 145 are attracted. We have quoted the relevant portion of the referral order in the present case. By a judicial order the matters before the Bench of two learned judges were ordered to be placed before a Bench of five learned judges. The Chief justice, as master of the cause lists, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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