Central Board of Dawoodi Bohra Community v State of Maharashtra (2004)

This is not a labour case on its facts — it arose from a religious-freedom petition. You study it in labour law because of what it settled about precedent and Bench strength, and that is exactly what mattered in the great "industry" controversy. When later Benches wanted to revisit Bangalore Water Supply and Sewerage Board v A. Rajappa (a seven-Judge decision), the question was always: who may doubt a larger Bench, and how does a case reach a still larger one? Dawoodi Bohra gives the answer in a numbered summary that you can reproduce almost word for word.

In State of U.P. v Jai Bir Singh (2005), a five-Judge Bench noted that, on this decision, it had been open to the Chief Justice to constitute the larger Bench — and that in any case nothing inhibited a five-Judge Bench from hearing the matter. That is the practical link to Unit 4.

In Sardar Syedna Taher Saifuddin Saheb v State of Bombay (1962), a five-Judge Bench had held by a majority of 4 : 1 that the Bombay Prevention of Ex-communication Act 1949 was ultra vires as it violated Article 26(b) and was not saved by Article 25(2).

On 26 February 1986 the petitioners filed a writ petition seeking reconsideration and overruling of that decision, and a mandamus directing the State of Maharashtra to give effect to the 1949 Act. A two-Judge Bench issued rule nisi on 25 August 1986. On 18 March 1994 a two-Judge Bench directed the matter to be listed before a seven-Judge Bench. On 20 July 1994 a seven-Judge Bench adjourned the hearing to await another decision.

On 26 July 2004 respondent no. 2 filed I.A. No. 4 asking that the matter be listed before a Bench of two Judges, relying on Bharat Petroleum Corpn. Ltd v Mumbai Shramik Sangha (2001) and four later Constitution Bench decisions, including Pradip Chandra Parija v Pramod Chandra Patnaik (2002). The petitioners opposed: a petition seeking reconsideration of a five-Judge decision must go to seven Judges, and the decisions relied on were per incuriam because of Union of India v Raghubir Singh (1989).

1. Can a Bench of lesser strength doubt or disagree with a decision of a Bench of larger strength?
2. What is the correct route for a case to reach a larger Bench — and what are the exceptions?
3. Were Parija and the cases following it per incuriam?
4. Before what Bench should the Dawoodi Bohra petition be heard?

I.A. No. 4 was allowed only in part. In the Court's words, "the prayer contained in the application deserves to be allowed only in part." The matter was not to go to two Judges, nor to seven: it was to be heard by a Constitution Bench of five Judges.

Not per incuriam

The Court rejected the argument that Parija and the cases following it were per incuriam. It explained the term: "Per incuriam means a decision rendered by ignorance of a previous binding decision such as a decision of its own or of a Court of co-ordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law." And: "A ruling making a specific reference to an earlier binding precedent may or may not be correct but cannot be said to be per incuriam." Since Chandra Prakash v State of U.P. (2002) had considered both Raghubir Singh and Parija and then followed Parija, the line of cases stood.

Raghubir Singh and Hansoli Devi explained

In Raghubir Singh the Constitution Bench had "nowhere approved the practice and propriety of two- Judge Bench making a reference straightaway to Constitution Bench disagreeing with a three-Judge Bench decision." In Union of India v Hansoli Devi (2002) the Constitution Bench had itself said the reference by two Judges was improper, but answered the questions because of their wide implications. So "the course adopted by the Constitution Bench in the case of Hansoli Devi was by way of an exception and not a rule."

The summary of the law

The Court summed up the legal position in three propositions. Learn them in this order.

1. "The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength."
2. "A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum." In case of doubt, all it can do "is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration." Only a Bench of co-equal strength may express doubt about an earlier Bench of co-equal strength, whereupon the matter may go to a larger Bench.
3. Two exceptions. First, these rules "do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength". Second, if the matter has already come before a Bench of larger quorum and that Bench itself feels the earlier view needs correction, it may "by way of exception (and not as a rule) and for reasons" hear the case and examine the earlier decision, dispensing with a specific reference or the Chief Justice's order.

Application to the petition

No Bench had ever referred the matter doubting Sardar Syedna. "The order dated 18.3.1994 by two-Judge Bench cannot be construed as an Order of Reference." Nor had the Chief Justice ever directed it to a Constitution Bench or seven Judges. The matter was to go to five Judges, and "It is only if the Constitution Bench doubts the correctness of the law laid down in Sardar Syedna Taher Saifuddin Saheb's case (supra) that it may opine in favour of hearing by a larger Bench consisting of seven Judges or such other strength as the Chief Justice of India may in exercise of his power to frame a roster may deem fit to constitute."

A decision of a larger Bench binds every later Bench of lesser or equal strength. A smaller Bench cannot doubt a larger Bench; it can only ask the Chief Justice to place the matter before a Bench larger than the one whose decision is doubted. Only a co-equal Bench may doubt a co-equal Bench and send the matter up. These rules yield to two exceptions: the Chief Justice's power over the roster, and a larger Bench already seized of the matter which may, exceptionally and for reasons, re-examine the earlier view itself. A two-Judge direction to list before seven Judges is not an order of reference.

• Unit 4 link: in any answer on the definition of "industry" after Bangalore Water Supply, explain how the question of reconsidering a seven-Judge decision reached a larger Bench. Cite Dawoodi Bohra for the rule that a smaller Bench cannot doubt a larger one and that the Chief Justice controls the roster; then note that in Jai Bir Singh the five-Judge Bench relied on it.
• Short note: Write a short note on the rules governing reference to a larger Bench of the Supreme Court. Reproduce the three propositions and both exceptions.
• Short note: What is a decision per incuriam? Give the Court's definition and its rider that a ruling which expressly considers an earlier precedent cannot be per incuriam.
• Trap to avoid: this was an order on an interlocutory application, not a decision on the merits of Sardar Syedna. The Court decided only which Bench should hear the petition.