Judicial comity over arithmetic

• A Constitution Bench of the Supreme Court has unanimously held that a judgement delivered by a larger Bench will prevail over the decision of a smaller Bench, irrespective of the number of judges constituting the majority in the larger Bench.
• This principle stems from the assumption that a Bench with more strength is more likely to arrive at a correct decision.

Understanding Bench strength

• It is a settled position that a Bench of equal strength cannot overrule or reconsider a decision of a coordinate Bench; it can, at best, doubt the correctness of it.
• The larger Benches examine the question or correctness of the decision and the majority opinion expressed by them becomes the verdict, which is binding on the lower Benches.
• The Supreme Court, while considering the same question, held that if the number of judges is to have salience and not Bench strength, then every decision of a larger bench could be doubted and overruled on the ground of plurality of opinions, thereby toppling the certainty and stability of decisions.
• However, a blanket adherence to the Doctrine of Precedents as enunciated by the Supreme Court can have serious consequences, as the correctness of a decision would become a game of numbers rather than reasons.
• The Supreme Court justified the binding nature of the larger Bench’s view saying that this view was arrived at after deliberation by more judges.
• After all, it is natural that a decision by a larger majority is perceived to be correct over a decision considered by a larger number.
• Such an anomaly is usually avoided in the U.S. and in South Africa owing to the fact that any reconsideration of a precedent is a matter deliberated by the entire sitting strength of the court as opposed to division(s).

Recommendations

• Changes are required in terms of how larger Benches are constituted.
• The term ‘larger Bench’ be understood not in the strict sense of being merely greater in strength than the lower Bench.
• Instead, there should be an endeavour to have a quorum with a break-even or a greater majority than the lower Bench.