ByUtkasrh Anand, New Delhi
Nov 09, 2024 10:32 AM IST
The two-judge bench’s decision to request a larger bench review was in line with the Central Board of Dawoodi Bohra CommVs State of Maha (2005) case.
The Supreme Court’s majority decision in the AMU case on Friday sparked a significant judicial debate, bringing forward stark dissenting opinions by justices Surya Kant, Dipankar Datta and Satish Chandra Sharma. While Chief Justice of India (CJI) Dhananjaya Y Chandrachud, writing for himself and three other judges, defended the procedural validity of the case’s referral to a seven-judge bench, the dissenting judges warned that the referral compromised judicial propriety, respect for established precedents and the CJI’s administrative authority.
The CJI, supported by the majority, upheld the referral order made by a two-judge bench in Anjuman-e-Rahmania (1981), which raised doubts about the five-judge bench Azeez Basha judgment (which decided against AMU’s minority status) and requested a review by a larger bench. According to CJI Chandrachud, the two-judge bench’s decision to request a larger bench review was in line with the exceptions outlined in the Central Board of Dawoodi Bohra Community Vs State of Maharashtra (2005). This case permits lower-strength benches to make larger bench referrals when there are substantial doubts about an existing ruling’s correctness.
Asserting that as the “master of the roster,” the CJI said that he retained the discretion to assign cases to benches of varying sizes, remarking that “judicial discipline and propriety dictate that benches of lower strength must adhere to such decisions” and that “the exceptions… must remain exceptions and not transmogrify into the rule”. By affirming this discretionary power, CJI Chandrachud dismissed the Union’s objection to the referral order and asserted that a review of Azeez Basha’s ruling was warranted, given the importance of the issues surrounding AMU’s minority status.
In sharp contrast, justices Kant, Datta and Sharma raised substantive concerns about the manner in which the two-judge bench had referred to the Azeez Basha case. Their dissent centered on principles of judicial hierarchy, the role of stare decisis and the sanctity of the CJI’s administrative role.
Justice Kant held that the two-judge bench had overstepped its bounds by questioning a five-judge bench ruling and referring it to a larger bench without adhering to procedural requirements. He criticised the Anjuman-e-Rahmania referral as an “inconsistent” use of judicial power, stating: “The two-judge bench in Anjuman (supra)… lacked the authority to explicitly question the correctness of Azeez Basha (supra) and refer the matter to a seven-judge bench.”
Justice Kant further emphasised that the two-judge bench’s actions encroached upon the CJI’s prerogative as the master of the roster, which he warned could have broad implications for judicial coherence and stability. He noted that allowing smaller benches to question higher-bench decisions would open “floodgates” for procedural abuses, undermining the predictability and finality essential to judicial authority.
Stressing that allowing such precedents would disrupt the principle of stare decisis and compromise the CJI’s authority, justice Kant warned of “procedural complications and embarrassment” should smaller benches assume powers typically reserved for higher benches.
“Allowing such a practice would enable benches of lesser strength, such as a two-judge bench, to undermine the decisions of larger benches, potentially even an 11-judge bench. This would also place the Chief Justice in an untenable position, who would be bound by a judicial order while acting in an administrative role, leading to procedural complications and embarrassment,” he added.
Disagreeing with the CJI on the point that the reference order passes muster, justice Kant underscored: “Such a reading risks opening the floodgates to further complexity and disruption, where smaller benches could disregard established principles and overturn decisions of larger benches. This would erode the concept of well-settled principles and destabilize the legal framework, as each judgment would strive to chart new directions, undermining legal certainty and continuity.”
Justice Datta defended Azeez Basha as a well-reasoned decision that had “withstood… the vagaries of wind and weather”. He argued that judicial precedents, especially longstanding ones like Azeez Basha, should not be casually overturned. According to him: “The mere fact of this Bench having a numerical strength of seven… does not necessarily make it competent to decide the re-reference.”
The judge held: “It is also well known that it is the power of the Chief Justice of India, on the administrative side, to determine appropriate numerical strength of the benches. However, the mere fact of this bench having a numerical strength of seven judges and presided over by none other than the Chief Justice of India does not necessarily make it competent to decide the re-reference, if the orders of reference/re-reference are found to be seriously flawed.”
For justice Datta, the referral by a smaller bench not only disregarded proper judicial hierarchy but also eroded the stability of longstanding legal principles. He cautioned that such a review would challenge the finality of past decisions and threaten the coherence of the legal system.
“I am afraid, tomorrow, a bench of two judges, referring to opinions of jurists (as in Anjuman-e-Rahmania) could well doubt the ‘basic structure’ doctrine (evolved by a nine-judge bench) and request the Chief Justice of India to constitute a bench of 15 judges,” said the judge, holding the reference to be “impermissible” and “completely flawed”.
The judge also disagreed with a three-judge reference order in 2019 that took into account the observations in the Anjuman-e-Rahmania case and recommended a seven-judge bench should adjudicate the issue.
“With due respect and utmost humility at my command, although the Chief Justice of India is primus inter pares (first among equals) and on the administrative side has powers and authority which no puisne Judge has, the Chief Justice of India while discharging judicial functions on the bench with a puisne judge or judges may not enjoy any power greater than what the puisne judge or judges forming the quorum has/have in authoring judgments/ passing orders. Therefore, the re-referral order merely by reason of the presence of the Chief Justice on the bench did not get sanctified,” said justice Datta.
Justice Sharma, in his judgment, noted that a two-judge bench’s referral to review a five-judge decision, especially without the CJI’s explicit involvement, was “plainly impermissible in law”. He observed: “The approach adopted… was not wholly appropriate.”
He underscored that the Anjuman-e-Rahmania bench had bypassed the Dawoodi Bohra principle requiring that only benches of equal or larger strength could question the correctness of previous rulings. This failure, he held, risked undermining judicial discipline and opened avenues for procedural inconsistencies that could destabilize the Supreme Court’s hierarchical structure.
While the CJI’s majority opinion reasoned that the referral’s validity rested on a careful reading of precedent and that the decision’s broader implications for minority rights at AMU warranted a full examination by a larger bench, the dissenting opinions flagged serious concerns about the implications of this decision for judicial consistency. By allowing a two-judge bench to prompt a seven-judge review, they warned, the Supreme Court risked diluting the authority of its larger-bench precedents, potentially even allowing lower benches to question landmark rulings.
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