The large and small of it: the Supreme Court on bench sizes

In recent weeks, Supreme Court Justices B.V. Nagarathna and Bela Trivedi brought up a similar concern in their dissents in the mineral royalty and sub-classification judgements respectively. The concern has to do with bench size. In their opinion, it was inappropriate for smaller benches in their cases to have played a role in overturning the judgements of previous, larger benches. 

The seven-judge bench in State of Punjab v Davinder Singh overturned the five-judge bench decision in E.V. Chinnaiah v State of Andhra Pradesh (2004). The matter had reached the seven-judge bench after initially being referred by a three-judge bench. Justice Trivedi took particular issue with the fact that the three judges had not provided any reasoning for why the five judges in E.V. Chinnaiah were wrong. A smaller bench should usually follow the ruling of a larger one, wrote Trivedi, but in the event that it could not, it ought to list the reasons why. 

Similarly, in Mineral Area Development Authority v Steel Authority of India (2024), Justice Nagarathna also recognised circumstances where a smaller bench could question the judgement of a larger bench. But those circumstances were limited to “flagrant violation[s] of law, a patent error[s] or a blatantly erroneous approach,” as well as cases where the law is silent or where the larger bench disregards the law it must apply. Justice Nagarathna noted that the bench in State Of West Bengal v Kesoram Industries Ltd. (2004) disregarded India Cement Ltd v State Of Tamil Nadu (1989) based on a typographical error—falling short of the patent error or erroneous approach needed to overturn a ruling. 

Both Justices Trivedi and Nagarathna paid deference to the opinions of larger benches. Justice Trivedi observed that Constitution Benches spend substantial time and resources on references; Justice Nagarathna noted that court judgements are typically “pregnant with reasoning” and subsequent smaller benches would have to wrestle with this reasoning if they wished to rule differently. 

This eagerness to follow the lead of larger benches is a topic that the Supreme Court has discussed in piecemeal but without making a definitive ruling, so it is worth looking at the traces of this idea in the Court’s past judgements. 

The development of bench size jurisprudence

One of the earliest cases that dealt with this issue was Union Of India & Anr v Raghubir Singh (1989). The case cleared up some confusion created by Javed Ahmed Abdul Hamid Pawala v State Of Maharashtra (1984), which had stated that Division Benches sat in two- or three- judge benches only for the sake of convenience, and that therefore it was inappropriate for a three-judge bench to overrule a two-judge bench simply by virtue of its numerical advantage. 

In Raghubir Singh, the Court stated that while there is no answer to this issue in the Constitution or in statute, the issue is addressed in the “practice in India of the Courts sanctified by repeated affirmation over a century of time.” The Court noted that ideally the entire strength would sit for every case. But the sheer volume of cases it received necessitated division of work. The Court noted that the practice of smaller benches following the precedent set by larger benches was developed over time to limit inconsistent rulings. 

Nevertheless, there are examples of smaller benches overruling larger ones, of which R. Thiruvirkolam v The Presiding Officer (1996) is one. Ordinarily, the two-judge bench in Thiruvirkolam would have followed the judgement of the three-judge bench in Gujarat Steel Tubes Ltd v Gujarat Steel Tubes (1979). But the Thiruvirkolam Court noticed that the Gujarat Steel case had contravened the precedent set by a Constitution Bench in P. H. Kalyani v M/S. Air France Calcutta (1963). In that sense, the Thiruvirkolam court did not overrule Gujarat Steel because of any disagreement it had with the case itself, but because Gujarat Steel had deviated from the precedent laid down by a bench it could not overrule. But despite straying from general court practice, it’s worth noting that Thiruvirkolam overruled a larger bench under one of those few circumstances that Justice Nagarathna had noted in her Mineral Area Development Authority dissent—where the larger bench disregards the law it must apply.

Other cases worth mentioning are Bharat Petroleum Corporation Ltd v Mumbai Shramik Sangha (2001), Pradip Chandra Parija v Pramod Chandra Patanaik (2001), and Central Board Of Dawoodi Bohra Community v State Of Maharashtra (2004). In Bharat Petroleum, a Constitution Bench issued an order saying that a two-judge bench must follow the precedent of a Constitution Bench, “regardless of their doubts about its correctness.” The most a two-judge bench can do, the Court said, was to refer the matter to a three-judge bench. 

In Pradip Chandra Parija, the Court went even further, saying that two-judge benches must also follow the precedent of three-judge benches, and that only in cases where the two judges determine that a three-judge precedent cannot be followed under any circumstances could they refer the case; even then, it could only be referred to a three-judge bench, indirectly calling the Thiruvirkolam ruling into question. Only if that second three-judge bench agrees with the assessment of the two-judge bench could the matter be referred to a Constitution Bench.

Central Board helped to sum up the jurisprudence on bench sizes up to that point: that the decisions of larger benches are binding on benches of equal number and a smaller bench cannot doubt the correctness of a larger bench’s opinion and can only refer the matter to a “Bench of larger quorum than the Bench whose decision has come up for consideration” (differing from the Pradip Chandra Parija decision). However, Central Board allowed for the Chief Justice to use their discretion and direct references to be heard by benches of any size. 

Recently, the Supreme Court has grappled with a slightly different issue, too: the effect of dissents on a judgement’s strength and whether the way a subsequent bench votes has any effect on precedent. In Jaishri Laxmanrao Patil v The Chief Minister (2021), Justice Ashok Bhushan ruled that the fact that a judgement had a “plurality of opinions or a narrow majority” was not, by itself, grounds for it to be ignored in favour of a previous ruling of a smaller but unanimous bench. 

The Court more recently fleshed out the issues in Jaishri Laxmanrao Patil in M/S Trimurthi Fragrances (P) Ltd. v Govt. Of N.C.T. Of Delhi (2022). In it, Justice Indira Banerjee posed a hypothetical that was the basis of the ruling—a seven-judge issuing a 4:3 judgement, contradicting an earlier five-judge bench that ruled 5:0, such that the net result was a 4:8 vote. Justice Banerjee noted the net vote would be irrelevant, since the 4:3 judgement was issued by a bench that had more judges. Any larger bench’s judgement, said Justice Banerjee, would rule the day over a smaller bench, regardless of how the two benches voted in tandem.

What to make of the Court’s discussions on bench size?

With each judgement, the Supreme Court has added more substance to the law of bench sizes. While it’s more or less settled that it would be improper for a smaller bench to overrule a larger one (even in the Thiruvirkolam sense), there’s now less certainty about the “cannot doubt the correctness” formulation of Central Board. 

In their recent dissents in high-profile Constitution Bench matters, even as they cautioned smaller benches against challenging decisions of larger ones, Justices Nagarathna and Trivedi recognised smaller benches’ limited powers of questioning. One of the takeaways from both these dissents could be that smaller benches need to apply their mind and record the reasons for their doubt. 

Justice Nagarathna went a step further and prescribed certain circumstances that could justify the questioning of a larger bench decision (flagrant violation of law, patent error, blatantly erroneous approach, cases where the law is silent or has been disregarded). The threshold is high, but there is a threshold.

As evidenced by the dissents and majority opinions in Mineral Area Development Authority and Davinder Singh, arguments over the effect of bench size on precedent are likely to change and evolve, at least as long as there is no definitive ruling on the matter. This stems from an issue first noted in Raghubir Singh—that the rules surrounding bench size are merely court practice instead of anything found in the Constitution or in statute. 

All the Constitution says about bench sizes can be found in Article 145 (3): the minimum number of judges to decide a constitutional issue or an issue referred by the President is five. The gap is filled by Article 145 (1), which gives the Supreme Court discretion, if it complies with Parliament’s laws, in crafting its own rules. Such roles are reflected in Chapter IV of the Court’s ‘Handbook on Practice and Procedure and Office Procedure’ and Order VI of the Supreme Court Rules. So long as court practice is left to the judges to decide, it is likely to change as frequently as judges do.

Kevin is an intern at the Supreme Court Observer.