A constitution bench of the Supreme Court ruled that the size of a bench matters, and the majority view of a larger bench will always prevail over a bench of lesser strength, regardless of the number of judges taking the majority view.

In simple words, a 4-3 majority view will overrule a unanimous view of a bench of 5 judges.

What is the case about?

• The five-judge bench was called upon to decide the issue following a reference made by a two-judge bench in 2017. This bench questioned the rationale of deciding judicial precedents based only on the numerical strength of the bench while not taking into account the number of judges adopting a view.

• “Has the time come to tear the judicial veil and hold that in reality a view of five learned judges cannot be overruled by a view of four learned judges speaking for a bench of seven learned judges? This is a question which needs to be addressed and answered,” held a bench of justices Rohinton F. Nariman and Sanjay K. Kaul in its November 2017 order.

• The question came up before the two-judge bench as it dealt with a batch of taxation cases.

What the constitution bench said?

• A five-judge constitution bench, headed by Justice Indira Banerjee, said: “In view of Article 145(5) of the Constitution of India, concurrence of a majority of the judges at the hearing will be considered as a judgment or opinion of the court. It is settled that the majority decision of a bench of larger strength would prevail over the decision of a bench of lesser strength, irrespective of the number of judges constituting the majority.”

• Justice Indira Banerjee authored the judgment on behalf of herself and also for Justices Surya Kant, M.M. Sundresh, and Sudhanshu Dhulia.

• Justice Hemant Gupta, in his separate and concurring judgment, said that a decision delivered by a bench of largest strength is binding on any subsequent bench of lesser or coequal strength.

• He noted that senior advocate Gopal Sankaranarayanan referred to Article 145(5) to contend that a judgment of this court is mandated to be delivered with the concurrence of a majority of the judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a judge who does not concur from delivering a dissenting judgment or opinion. Thus, the Constitution itself envisaged that the judgment is by the majority of the judges.

• Justice Gupta said a bench of lesser quorum cannot disagree or dissent from the view of law taken by a bench of larger quorum. Quorum means the bench strength which was hearing the matter.

• He said it has been rightly concluded that the numerical strength of the judges taking a particular view is not relevant, but the bench strength is determinative of the binding nature of the judgment.

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