Summaries the article competence of two judge benches of supreme court to refer cases to larger benches – dr. r. prakash (2004) 6 scc (jour) 75
1. Summarise the article "Competence of Two Judge
Benches of Supreme Court to Refer cases to Larger
Benches – Dr. R. Prakash (2004) 6 SCC (Jour) 75
• The Supreme Court of the United States is made up of nine judges, and each judge of that
court is involved in each of its judgments. However, this is not the case in our Supreme Court.
The Supreme Court of India is composed of 26 judges, including the Chief Justice, and sits in
county courts composed of two judges, three judges, five judges or more. Therefore, not all
judges will be parties to the Supreme Court of India. Since our Supreme Court sits in
divisions, a practice has developed to refer a case to a larger bank
• when a small bank questioned the validity of the law set out in the previous judgment.
Further referrals may go to even larger banks until the law is determined by a larger bank. For
example, the Kesavananda Bharati case can be considered to affect a bank of thirteen
honorable judges. In Shankari Prasad Singh Deo v. Union of India, a five-member
constitutional bank ruled that an amendment to the constitution under Article 368 was "not
a law" within the meaning of Article 13 (2) of the Constitution. In the state of Sajjan Singh v
Rajasthan, another bank consisting of five judges also shared the same opinion (although
Justices Hidayatullah and Mudholkar, JJ., Did not disagree, their lordships doubted the
majority opinion of Gajendragadkar , CJ) These two decisions were called into question and
the veracity of these decisions was examined by a bank of eleven judges from Golak Nath
against the State of Punjab, with the bank of eleven by a majority of to except for the
decisions of Shankari Prasad and Sajjan Singh prospectively, Force continued to change.
3. • The Constitution is a law within the meaning of Article 13,
paragraph 2, of the Constitution. As a result of this decision, Articles
13 and 368 were amended to exclude amendments to the
Constitution from the scope of Article 13, paragraph 2. The veracity
of the Golak Nath case and the validity of the law Constitution of
1971 (Twenty-Fourth Amendment) were considered by a large bank
of thirteen judges at Kesavananda Bharati against the State of
Kerala, which abrogated the Golak Nath case, and the basic
structure of a doctrine was proposed.
• Since the Supreme Court began working under our Constitution,
benches of two judges have made various references to larger
benches of five or more judges. The reference from smaller
Supreme Court benches to larger benches, as noted above, was
necessary because the Supreme Court sits in departments of two or
more judges and adheres to a rigid ruling doctrine. The purpose of
this article is to review recent decisions taken by Bharat Petroleum
Corpn. Ltd. against Mumbai Shramik Sangha and Pradip Chandra
Parija against Pramod Chandra Patnaik, among which the two-judge
benches can only designate one three-judge bench.
4. Decision on the reference of two-judge
benches to larger benches
• In Bharat Petroleum Corpn. Ltd. v Mumbai Shramik Sangha, a bank
with two learned judges, questioned the validity of a five-judge
ruling in Gammon India Ltd. v Union of India, and their Lordships
emphasized that the case should be referred to the Chief Justice of
India as follows:
• We have carefully considered the competing objections. It seems
to us that the question is important and that the observations of
the constitutional bench in Gammon in relation to section 10 were
in fact not strictly necessary because Gammon was not a case,
which dealt with the ban on contract labor. Whether the narrow
scope set out in section 10 of the Act in Gammon is correct, in our
view, must be determined independently. We therefore believe that
this issue should be decided by a constitutional bank. We therefore
refer to the following questions to be decided by a constitutional
bank of this court.
5. After answering the two questions, the
following was observed:
• The Registry is responsible for bringing the matter before my Lord, the Chief Justice of India, in
order to transmit the appropriate orders to a constitutional bank in relation to the above legal
• As a result, a bank with five judges was established to assess the accuracy of Gammon India Ltd.
against the Union of India law established. This bank of five judges rendered its decision in Bharat
Petroleum Corpn. Ltd. v Mumbai Shramik Sangha . The court ruled that legal discipline requires the
two-judge bank to follow the decision of the five-judge bank. It was also found that the two learned
judges could at most have ordered that the case be heard by a bank of three learned judges. The
bank of five judges ordered the case to be heard and decided by a judge of two judges Bench on
which it was observed. We believe that a decision of a constitutional bank of this court binds a bank
of two learned judges of this court and that legal discipline compels them to obey it regardless of
their doubts as to its correctness. At the most, they could have ordered that the case be heard by a
bank of three learned judges. It is respectfully argued that the observation that a bank of two
learned judges is obliged to obey the decision of a constitutional bank regardless of its doubts as to
its correctness is too broad and incorrect. He will be subject to it is an inconsistency in the first and
second statements of the above observations. If a bench of two judges can be determined to be
related to a bench of five judges, how can it be referred to a bench of three? A bank with two
judges must obey a major banking decision, not because it is linked to it, but because it is necessary
because of the adequacy and legal certainty of the judiciary. However, if a two-judge bank doubts
the accuracy of a major banking decision, it can refer the case to a larger bank to determine the
accuracy of the law set out in the previous decision.
6. Is the Supreme Court bound by its own
• Article 141 of the Constitution of India provides that the law declared by the
Supreme Court is binding on all courts in Indian territory. Does article 141 cover
the Supreme Court? This issue was raised in Bengal Immunity Co. Ltd. against State
of Bihar in the negative. In this case, it was found that Article 141, which states
that the law declared by the Supreme Court is binding on all courts in India, clearly
relates to courts other than the Supreme Court. As a result of this decision, a small
bank has the power to question the merits of a larger banking decision. Once this
position is accepted, said performance can no longer be limited by
• Noting that a bench of two judges can only refer a case to a bench of three judges.
The decision in Bengal Immunity Co. Ltd. makes it clear that a bank composed of
two judges is not bound by a major banking decision. This conclusion will be
further reinforced when the case is brought before the Court of Justice under
Article 136 (1) of the Constitution. Article 136, paragraph 1, begins with a non-
obstinacy clause. It gives the Supreme Court a margin of appreciation to grant any
special leave to appeal.
• Judgment, decree, disposition, sentence or ordinance, notwithstanding the
provisions of Part IV, Chapter IV of the Constitution. This provision reads as
7. • "136. Special leave to appeal by the Supreme Court. “(1) Notwithstanding
anything in this chapter, the Supreme Court may, in its sole discretion,
grant special leave to appeal a judgment, order, decision, judgment or
order on any cause or matter made or rendered by a court in India.
“(Emphasis added) This is the case, asserting that the non-obstante clause
in section 136 (1) also excludes section 141 from its scope. In
Taherakhatoon v Salambin Mohd. , it was found that the discretion in
section 136 persists even after permission has been granted. The effect of
decision is that from the stage of submitting a request for special leave
until the final decision on an appeal after the granting of the appeal
permit, section 136 is regulated. Therefore, it is argued that the discretion
of the Court is available at this time. For the final hearing of a complaint
arising from a request for special leave under section 136, section 141 also
does not apply at the time of the final hearing.
• There is no provision in the constitution that states that a small Supreme
Court bank is bound by its larger banking decisions. However, the
adequacy of justice and the need for legal certainty require that a small
bank obey the law declared by the big banks. However, small banks have
the power to question the veracity or the contrary of the law established
by a large bank and send the matter back to the chief justice to form even
larger banks. Settlement of the controversy.
8. The Supreme Court decides on the minimum number
of judges to sit on a bench of the Supreme Court
• In accordance with Article 145, paragraph 3, cases which concern an
essential legal question with regard to the interpretation of the
Constitution must be decided by a bank of at least five judges. In
accordance with order 7, Rule 1 of the Supreme Court Rules of 1966,
subject to the other provisions of the Rules, any case, appeal or case must
be heard by a bank composed of at least two judges appointed by the
judge in chief. The reservation in order 7, rule 1, empowers the chief judge
to appoint a single judge to hear and resolve certain questions.
• According to order 35, rule 1, any petition under Article 32 of the
Constitution must be heard by a departmental court composed of at least
five judges. If such a request does not raise an essential legal question
concerning the interpretation of the Constitution, it can be heard and
decided by a departmental court of less than five judges. order 35 Rule 1,
sub-rule (2) empowers a bank of less than five judges to rule on
provisional motions and various petitions filed in a written petition under
article 32, although the written petition may raise an important legal
question as to the interpretation of the Constitution.
9. • According to order 10 of Rule 38-A of the Rules of the Supreme Court, a reprimand
under section 257 of the Income Tax Act 1961 must be heard by a bank with at
least three judges. According to order 39 of the preliminary hearing of an
electoral motion presented contesting the election of the president or vice-
president must be heard by a bank composed of five judges. Rule 20 of Rule 39
requires at least five judges to hear the final hearing of such a motion. The
Supreme Court has had the opportunity to review the rules of the Supreme Court
to determine the power of the court to refer to broader pews. In Triveniben v.
Gujarat State, a decision of a constitutional bank composed of five judges,
Jagannatha Shetty, J., referred to Order 7, Rule 2 of the Supreme Court Rules,
1966, in its judgment concordant, stating thatfollows:
• "In this context, order 7, Rule 2 of the Rules of the Supreme Court must also be
observed. It provides: "If, during a hearing for a reason, appeal or other
proceeding, the bank considers that the case should be handled by a large bank, it
will submit it to the Chief Justice who will take the necessary measures. . a bank to
hear about it. "
• This is undoubtedly a sound rule, but it seems to have only a limited effect. It
apparently regulates the procedure of a smaller bank if it disagrees with the
decision of a larger bank. If, during the hearing of a case, the bank feels that the
case should be handled by a large bank, it will submit the case to the Chief Justice.
The chief justice then forms a large bank to settle the case.
10. Reference from benches of two judges to larger
benches with five or seven judges - some cases
• There have been cases where departmental banks have asked two judges
to question the accuracy of decisions made by big banks and immediately
referred the case to a larger bank of five or seven judges:
– A bench of two has questioned the accuracy of certain instructions given by a
bench of five in R.S. Nayak v. A.R. Antulay and referred the case to a bank of
seven judges for a decision. The bench of seven judges in A.R. Antulay v. R.S.
Nayak as a bench of two judges doubts the correctness of a decision of the
bench of five judges. Ranganath Misra, J. (as he then was) made the following
observations in his consensus judgment, which are relevant in the current
• “A bank of two judges, which included Mukharji, J., my colleague, obtained special
authorization and this appeal (No. 468 of 1986) was recorded. Respondent 1 requested in
Petition 4248 of 1986 that the special leave be revoked. With the rejection of the
aforementioned revocation request, the Zwei-Richter-Bank formulated several questions
with a resolution of October 29, 1986 which were raised for consideration and referred
the case to a hearing of a Bank of seven judges of the court. This bank was therefore
created with seven judges to hear the appeal. "
11. • A bank of five judges maintained and responded to the reference in Steel
Authority of India Ltd. v National Union Waterfront Workers by a bench of two
judges in FCI v Transport and Dock Workers Union
• In Sunder v Union of India a two-judge bank raised the issue of whether the state
was required to pay interest on the amount provided for in Section 23 (2) of the
Land Acquisition Act of 1894 , which was upheld and confirmed by a bench of five
judges in Sunder v Union of India
• In the Sanjay Dutt / State case, a five-judge bank responded to the question posed
by a two-judge bank in the Sanjay Dutt / State case.
• In State Bank of India v State Bank Staff Union, a two-judge bank raised the issue
of whether workers who strike legally or illegally are entitled to a salary for the
duration of the strike paid by a bank with five judges in Syndicate Bank v. K. Umesh
Nayak stating that the strike must be both legal and justified in order to be entitled
to a salary for the strike period.
• In KS Pariapoornan v Kerala State a two-judge bank questioned the veracity of the
Union of India against Zora Singh and referred the case to a five-judge bank which
took the opinion in the case of KS Paripoornan v State of Kerala
• Dodsal (P) Ltd. against the Delhi Electricity Supply Company by Municipal Corpn.
• CST v Rewa Coal Fields Ltd.
• Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. against Ram Gopal Sharma
• Buta Singh v Union of India
• New India Assurance Co. Ltd. against C.M. Jaya
12. • While in the Mumbai Shramik Sangha case, a bank with five judges
considered whether a bank with two judges can doubt the merits of
a decision with five judges, the competence of a bank with two
judges against the accuracy of In Pradip Chandra Parija Pramod
Chandra Patnaik A decision on a bank of three judges and its
dismissal was reviewed by a bank of five judges Following a decision
of a bank of three learned judges. However, if a bank with two
learned judges concludes that a previous judgment with three
learned judges is very false and cannot be obeyed under any
circumstances, the correct course is to refer the matter to a bank
with three learned judges.
• Reasons why he could not agree with the previous judgment. Then,
if the bank of three learned judges also concludes that the previous
judgment of the bank of three learned judges is in error, then the
reference to a bank of five learned judges is justified. In Karnataka
SRTC / Lakshmidevamma, a five-judge bank maintained a two-judge
banking benchmark in the face of two conflicting decisions from
three-judge banks. In the present case, no exception was made by
the bench of five judges with regard to the referral of a bench of
two judges directly to a bench of five judges.
13. • Bank. A bench with two judges in Ador Samia (P) Ltd. v Peekay Holdings Ltd. and a bank of
three judges in Konkan Rly.Corpn. Ltd. v Mehul Construction Co. held that the appointment of
an arbitrator under section 11 of the Arbitration and Conciliation Act 1996 was not
contestable under section 136 of the Constitution of India. However, a bench of two
questioned the correctness of this point of view in Konkan Rly. Corpn. Ltd. v Rani
Construction (P) Ltd. , who referred the case to a bank of five judges who concluded that a
decision to appoint an arbitrator under section 11 of the Arbitration and Conciliation Act
1996 would not be challenged under of Section 136 of the Act may constitute India.
However, the five-judge bank in that case pointed out that the practice of a two-judge bank
referring the case to a five-judge bank was frowned upon by a constitutional bank, but
responded that with a two-judge bank question. judges raised.
• In TV Vatheeswaran v State of TN, a two-judge bank which spoke about Chinnappa Reddy, J.
reiterated that a delay of more than two years in the execution of the death sentence by the
court was in violation of the Article 21 represents the constitution and commuted the death
penalty to life imprisonment.
• In Sher Singh v State of Punjab, a bench of three voted against T.V. Vatheeswaran against
State of T.N. in Javed Ahmed Abdul's proposal not to Hamid Pawala versus“The case also
raises the question of whether a three-judge division bench can claim to overturn the
judgment of a two-judge division bench simply because three is greater than two. The
Tribunal has two and three divisions of judges for convenience and it may not be appropriate
for a three-judge division to be expected to override the decision of a two-judge division. “
• In order to calm the situation, the legal question raised in the three cases above was raised
and decided by a Constitutional Bank of Triveniben against the State of Gujarat . The problem
was resolved by the Constitutional Bank, which decided that the delay in the execution of the
death penalty should start from the date on which the legal proceedings were concluded.
14. • It is argued that if a small bank cannot overrule the judgment of a
large bank, it can undoubtedly doubt the correctness of the
decision of a large bank. If a small bank believes that there is an
error in a major banking decision and its negative impact on the
general public interest, it is not bound by that decision. While the
principle of rigid decision and non-breastfeeding, which means that
specific decisions should not be overturned, has become a generally
accepted principle in our case law and consistency of law in Waman
Rao v Union of India may be a deciding factor Chandrachud, CJ
noted that prosecution of illegality in the future is not part of the
rigid decision. Therefore, the two factors on which decisions are
made cannot be clarified and the practice of illegality is not part of
the rigid decision. These can guide a small bank to refer the case to
a larger bank.
15. Construction of large banks
• Although the Chief Justice of India is banks in his
administrative function, it is argued that there should be a
judicial referral system for a large bank. A bank of thirteen
judges was created to review the Kesavananda Bharati
case. This bank was formed without a court order to
reconsider the Kesavananda Bharati case, in which Khanna,
J., indicated that the question of whether the veracity of an
earlier ruling would be reconsidered and the case heard by
a greater bank should be reviewed. , could only arise in the
context of a judicial decision. The Thirteen Bank of Judges
created to reconsider the veracity of the Kesavananda
Bharati case has been dissolved, putting an end to attempts
to reconsider the veracity of the Kesavananda decision.
• In light of the above discussion, it is argued that a small bank can only have two options.
Either it must follow a major banking decision (as mentioned above, not because it is linked
to a major banking decision, but because it requires the correctness and legal certainty of the
court), or if it doubts the accuracy of a major banking decision, he made the case on Expel
Chief Justice of India for creating a big bank. The chief justice, acting administratively, would
represent a larger bank. After all this exercise, can the larger bank to which the case relates
refuse to decide the issues raised and refer them to the smaller bank because the smaller
bank is bound by the earlier decision of the larger bank? ? Here too, judicial adequacy
requires that the larger bank, which is formed by a smaller bank in accordance with the
judicial referral system, decide on the questions put to it, either by approving the earlier
decision of the larger bank or by canceling it.
• It is respectfully argued that it is not necessary for a bank of judges formed of two judges to
refer a case to a bank of three judges if this is the correctness or otherwise of the law
established by a bank of five. judges or a judge of three judges doubt Bank. A two-judge bank
may refer directly to the matter to be decided by a five-judge bank or a larger bank by taking
the matter to the chief justice to form an equally larger bank. Nothing in the constitution or
in the rules of the Supreme Court prevents a two-judge bank from referring directly to a bank
of five or more people
17. • Judge. If a matter is so settled by court order and a larger bank is
formed, the larger bank has no recourse against the removal order.
It is therefore with the greatest respect that the opinion of Bharat
Petroleum Corpn. Ltd. v Mumbai Shramik Sangha and Pradip
Chandra Parija v Pramod Chandra Patnaik must be reconsidered.
• In this context, the proposal of Chief Justice R.S. Pathak presided
over a bank of five judges in the Union of India v Raghubir Singh.
Again, the competence of a two-judge bank to refer a case to a five-
judge bank was called into question. The bank of five judges lifted
the preliminary objection and decided the relevant legal issue. The
learned chief justice highlighted the practice of the Supreme Court
of the United States
• The whole Court of Justice is responsible for each of its decisions
and for the way in which such a practice is impracticable in our
• Judge R.S. Pathak suggested that the benches consist of at least
three learned judges, if possible, to avoid the problems of benches
with two and three judges having differing opinions and the binding
nature of those judgments.