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Precedents on Precedents; Choice between Conflicting Ratios of Equal Strength; An Area

of Precedential Chaos

Nizam Azeez Sait

In Jurisprudence, Precedent means judgment or decision of a court of law cited as an authority

for the legal principle embodied in it. Article 141 of the Constitution of India reads as below:

"The law declared by the Supreme Court shall be binding on all courts within the territory of
India."

But as regards the application of Precedents of the High Courts there is no direct Constitutional
provision as Article 141. A three Judges Bench of the Supreme Court considered the question
in M/s. East India Commercial Co. Ltd. Calcutta and Another v. Collector of Customs,
Calcutta AIR 1962 SC 1893, the Court referred Articles 215, 226 and 227 of the Constitution
and held as below:

"It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals
subject to its supervision should conform to the law laid down by it. Such obedience would also
be conducive to their smooth working: otherwise, there would be confusion in the administration
of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared
by the highest court in the State is binding on authorities or tribunals under its superintendence."

Judgments of Courts of law are not computer out puts ensuring consistency and absolute
precision, but they are the products of human thoughts based on the given set of facts and the
interpretation of the applicable law. Generally our Superior courts have been incumbent by
erudite and scholarly Judges (Both Pre and Post Collegium eras), whose thoughts go great
heights and result in fascinatingly sound verdicts, of course aided by able lawyers. Unlike
Preprogrammed Computers, such human thoughts trek new terrains in interpreting the law and
are capable of coming out with ideal innovative rulings/declarations of law in furtherance of
justice as the situations demand. Therefore on many areas of Law we have doubtlessly
authoritative judgments of Superior Courts with remarkable clarity and acceptability, which in
addition to resolving the dispute between the parties in that case, also serve as beacon lights or
precedents for the Subordinate Courts on subsequent similar issues. But Law is an immensely
vast canvass and there are lots of blurred areas in it, both Statutory and Precedential. Legislature
cannot conceive and directly provide for all the practical exigencies that may arise in future.
Language of statutes has its limitations, hence at times it fails to convey with clarity the intention
of the legislature giving rise to ambiguity. Justice is an abstract concept and it can become judge
centric. Hence instances are countless when equally learned and competent judges of the
Superior Courts tend to put entirely different interpretation on the same provisions of law. There
are also instances when the same judge takes different views on the same question in different
cases, mostly because of better wisdom of the future day and rarely even due to forgetfulness of
the earlier judgment. Absolute objectivity in court rulings will remain a dream only.
Benjamin Cardozo explains this phenomenon as below:

"It is said to be the product of the judge's philosophy, his logic, his understanding of history,
social reality, his sense of right and his perceptions of justice" (The Nature of the Judicial
Process)

I would add one more attribute to the above, ie, the persuasive caliber of the Lawyers appearing
in the case. The ways in which cases are presented by the lawyers greatly influence the verdicts
and the quality of judgments. Referring the heights to which the art of advocacy rose in the
landmark Kesavananda Bharati case, it is often said that the legendry lawyer Nani Palkivala
saved the Indian Constitution. In this regard Justice Hans Raj Khanna said in his book 'Neither
Roses Nor Thorns', as under:

"The height of eloquence to which Palkivala rose on that day had seldom been equaled and never
surpassed in the history of the Supreme court."

Justice Khanna also said: "The Judges in fact, shine with reflected glory, for their judgments
verily reflect the industry of the counsel appearing before them."

Conflicts Within a Bench

In the landmark 'Basic Structure case' (Kesavanandabharati v.State of Kerala, AIR 1973 SC
1461), which upheld the general power to amend but put an embargo on the amendment powers
of the Parliament to alter the Basic Structure of the Constitution, the Supreme Court was split
from the middle and the case was decided by a narrowest majority of 7: 6. All the 13 judges
wrote their own Separate Judgments. The famous dissenting Judgment rendered by Justice
Khanna in the otherwise infamous Habeas Corpus case (Addl. Dist. Magistrate v. Shivakanth
Shukla AIR 1976 SC 1207) presents a classical instance of righteous dissenting judgment where
a selfless Judge lost Chief Justiceship of India for deciding a case fearlessly according to his
conscience. To the displeasure of the Government of the day Justice Khanna held that:

…….Art.21 cannot be considered to be the sole repository of the right to life and personal
liberty, even in the absence of Art.21 in the Constitution, the State has got no power to deprive a
person of his life or personal liberty without the authority of law and that is the essential
postulate and basic assumption of the rule of law in every civilised society…

Khanna. J quoted Chief Justice Hughes in the concluding part of his dissenting Judgment as
under:

"A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence
of a future day, when a later decision may possibly correct the error into which the dissenting
Judge believes the court to have been betrayed."
In the above case the error was in fact erased by the parliament itself by the 44th Constitutional
Amendment which curtailed the power of the President to suspend Art. 21 during the
Emergency. We have seen dissenting judgments in many other important verdicts also.

Conflicts Between Benches

Now there is no dispute that a larger bench decision will prevail over a smaller bench decision.
But the conflicting judgments on a particular point by coequal benches cause enormous difficulty
to lower court judges who are bound by the ratio of the law enunciated by the superior Courts. In
the absence of Constitutional or Statutory guidance in this regard, the precedents and practice
have not been uniform and consistent. There have been three mutually repugnant streams of
judgments/precedents on this very important and oft recurring question of law. One view is that
in case of conflict between two judgments, later decision should be followed; another view says
that decision earlier in point of time should be followed; yet another view is that the Court
should follow the decision which is more accurate and better in point of law, whether it be earlier
or later. This Article is an attempt to analyse the above three tier conflict of precedents on the
issue. The above views are examined below.

Some of the Judgments Expressing the View that Subordinate Courts are Bound to Follow
the Earlier precedent.

Sundeep Kumar Bafna v. State of Maharashtra and another (K. S. Radhakrishnan; Vikramajit
Sen, JJ.) 2014 (2) KLT 809 : AIR 2014 SC 1745:-

In this recent case, the question before the 2 Judges Bench of the Supreme Court was whether
the High Court could consider an application for permission to surrender before the court and for
regular bail under Section 439 of CrPC. The single bench of the Bombay High Court had
rejected the application and held as under:

"..the Appellant is required to be arrested or otherwise he has to surrender before the Court
which can send him to remand either to the police custody or to the Magisterial custody and this
can only be done under S.167 of CrPC by the Magistrate and that order cannot be passed at the
High Court level."

The Two Judges Bench of the Supreme Court setaside the above order of the High Court inter
alia relying on Niranjan Singh v. Prabhakar Rajaram Kharote (1980 (2) SCC 559 )(3 judge
bench), wherein Krishna Iyer, J. speaking for the Bench observed that:

"He can be in custody not merely when the police arrests him, produces him before a Magistrate
and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he
surrenders before the Court and submits to its directions."

Another 3 judges bench, Directorate of Enforcement v. Deepak Mahajan, AIR 1994 SC 1775 ;
later to 'Niranjan Singh' observed as under.
"Thus the Code gives power of arrest not only to a Police Officer and a Magistrate but also under
certain circumstances or given situations to private persons. Further, when an accused person
appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that
accused person into custody and deal with him according to law. Needless to emphasize that the
arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it
differently, the taking of the person into judicial custody is followed after the arrest of the person
concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to
note that in every arrest, there is custody but not vice versa and that both the words 'custody' and
'arrest' are not synonymous terms."

In 'Sundeep Kumar Bafna' the Division Bench of 2 judges held:

"If the third sentence of para 48 is discordant to Niranjan Singh, the view of the coordinate
Bench of earlier vintage must prevail, and this discipline demands and constrains us also to
adhere to Niranjan Singh; ergo, we reiterate that a person is in custody no sooner he surrenders
before the police or before the appropriate Court."

The bench further stated as under:

"It is often encountered in High Courts that two or more mutually irreconcilable decisions of the
Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest
view as the succeeding ones would fall in the category of per incuriam."

An Analysis of the Correctness of 'Sundeep Kumar Bafna'

There has been a traditional practice, since a long time, in the High courts and the Supreme court
to the effect that when a smaller bench notices conflicting ratios of coequal larger benches,
having direct bearing on the issue before that bench, it refers the matter to its immediate larger
bench or places the matter before the Chief Justice with a plea to constitute a sufficiently larger
bench in order to have an authoritative pronouncement to resolve the inconsistency between
Coequal benches. In this regard it was held as early as in 1961, by a 4 judges bench of the
Supreme court in Jaisri Sahu v.Dubey AIR 1962 SC 83, as follows:

" Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of
conflicting decisions, and it is therefore desirable that in case of difference of opinion, the
question should be authoritatively settled. It sometimes happens that an earlier decision given by
a Bench is not brought to the notice of a Bench hearing the same question, and a contrary
decision is given without reference to the earlier decision. The question has also been discussed
as to the correct procedure to be followed when two such conflicting decisions are placed before
a later Bench….The better course would be for the Bench hearing the case to refer the matter to a
Full Bench in view of the conflicting authorities without taking upon itself to decide whether it
should follow the one Bench decision or the other. We have no doubt that when such situations
arise, the Bench hearing cases would refer the matter for the decision of a Full bench."
In, Delhi Development Authority v. Ashok Kumar Bahel AIR 2002 SC 2940 ; also, the Supreme
court emphasized the need to refer the case to a larger bench when conflicting views of
coordinate benches are noticed, the court observed as under:-

" Inconsistency and contradiction in the orders passed by the same Court on the same point
regarding the same scheme cannot be allowed to be continued or perpetuated…. It is a cardinal
principle of rule of law that inconsistency and contradiction in the orders has to be avoided at all
costs to bring about a certainty in the mind of the Subordinate courts and the litigant public. This
principle would stand violated in case two binding principles on the same point of the same
Court are allowed to operate simultaneously."

It is also to be noted that now it is well settled that a 2 judges bench cannot directly refer a case
to the Constitutional Bench of 5 judges but it can only refer the case to a three judges bench or
place the matter before the Chief Justice. See, Pradip Chandra Parija and Others v. Pramod
Chandra Patnaik and Others: AIR 2002 SC 296), Hansoli Devi, 2002 (7) SCC 273 and
also Central Board of Dawoodi Bohra - Community and Another v. State of Maharashtra and
Another 2005 (1) KLT 486 : AIR 2005 SC 752, where in it is held as under;

" 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 that the Bench of lesser quorum 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."

See also the Full Bench Decision of High Court of Kerala in Peter v. Sara 2006 (4) KLT 219,
which exhaustively dealt with the importance of adherence to precedents and the scope and
limitations of the power of reference. In this case the full bench observed:

"..where a precedent is not followed and another decision rendered, in view of the conflicting
position, the legal antinomy must be resolved by a Division Bench, Full Bench, Larger Bench, as
the case may be, where one view would have to be formally overruled."

It can be said that the above proposition/principle pointed out in 'Jaisri Sahu' has by its long
recognition and adherence definitely metamorphosed into a rule of compelling stare decisis and
the said practice have been followed in the High courts and the Supreme court for more than 5
decades now.

With due respect, it is submitted that, in 'Sundeep Kumar Bafna' inspite of having such an
established option of reference, the division bench of 2 judges took upon itself to decide the
correctness of a 3 judges bench in 'Deepak Mahajan' and concluded that as regards the
discordance of the third sentence of the para 48 in 'Deepak Mahajan' with 'Niranjan Singh' the
earlier vintage must prevail, which is 'Niranjan Singh'.

It is submitted that may be the proposition laid down in 'Niranjan' is correct and uncomplicated
and is more appealing over the proposition in 'Deepak Mahajan' that 'mandatorily arrest should
precede judicial custody' on the basis of discussions on the powers of arrest of Magistrate under
S. 44 of CrPC. It is doubtful whether S. 44 confers general power of arrest to a Magistrate at the
Pre- cognizance stage (crime stage) except when the offence is committed in his immediate
presence. But the larger question is whether a division bench of 2 judges by itself could declare a
3 judges bench decision as per incurium and of no precedential consequence, inview of a
contrary 3 judges decision which is earlier in time. The situation would be different when a
Division Bench finds a larger bench's decision as per incuriam of a statutory provision or of the
decision of a further larger bench. In view of the above discussion, it is respectfully submitted
that the Learned Judges in 'Bafna' missed to take note of the above well established proposition
enunciated in a 4 judges bench in 'Jaisri Sahu'(supra) and the course adopted by the 2 judges
bench is not in accordance with the conventional principles of judicial discipline. Therefore,
with due respect, it could very well be concluded that the decision in 'Bafna' holding that 'earlier
vintage must prevail' by adjudging the interse legalities of two larger (3 judges) coordinate bench
decisions, itself suffers from the vice of per incurium of earlier larger bench decisions and is not
in accordance with the settled ethos of Judicial discipline.

In 'Bafna' the two Judges Bench relied on the following passage in the Constitutional Bench
decision in Union of India v. Raghubir Singh, 1989 (2) SCC 754 : 1989 (2) KLT 168,

"What then should be the position in regard to the effect of the law pronounced by a Division
Bench in relation to a case raising the same point subsequently before a Division Bench of a
smaller number of Judges? There is no constitutional or statutory prescription in the matter, and
the point is governed entirely by the practice in India of the Courts sanctified by repeated
affirmation over a century of time. It cannot be doubted that in order to promote consistency and
certainty in the law laid down by a Superior Court, the ideal condition would be that the entire
Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of
the United States does so. But having regard to the volume of work demanding the attention of
the Court, it has been found necessary in India as a general rule of practice and convenience that
the Court should sit in Divisions, each Division being constituted of Judges whose number may
be determined by the exigencies of judicial need, by the nature of the case including any
statutory mandate relative thereto, and by such other considerations which the Chief Justice, in
whom such authority devolves by convention, may find most appropriate. It is in order to guard
against the possibility of inconsistent decisions on points of law by different Division Benches
that the Rule has been evolved, in order to promote consistency and certainty in the development
of the law and its contemporary status, that the statement of the law by a Division Bench is
considered binding on a Division Bench of the same or lesser number of Judges. This principle
has been followed in India by several generations of Judges.…"

There is no doubt that a Division Bench is bound by the law laid down by an earlier Division
Bench decision of the same strength, when such decision is brought to its notice and if the later
bench is of the view that the decision of earlier coequal bench ought to be overruled it can only
refer the case to a larger bench. But it cannot be said that the above passage in 'Raghubir Singh'
covers a situations where the earlier decision evades notice of a Coequal Bench hearing the same
question and a contrary decision is given without reference to the earlier decision and as laying
down a proposition that in such a case of existence of conflicting judgments, only the earlier one
would prevail. It is submitted that such an issue did not at all arise before the Court in 'Raghubir
Singh' and was never addressed or decided.

It needs no reiteration that "a decision is an authority for what it decides and not what can
logically be deduced there from."

In the subsequent part of the very same paragraph in 'Raghubir Singh' it is stated as follows,
which the learned Judges in 'Bafna' missed to take note of: "This Court also laid down
in Acharaya Maharajshri Narandraprasadji Anandprasadji Maharaj etc. etc. v. State of Gujarat
and Others 1975 (1) SCC 11, that even where the strength of two differing Division Benches
consisted of the same number of Judges, it was not open to one Division Bench to decide the
correctness or otherwise of the views of the other."

In 'Acharaya Maharajshri' (5 Judges Bench), it was contended that some observations

in Khajamian Wakf Estates' case, (5 Judges Bench) AIR 1971 SC 161 are inconsistent with
Rustom Cavasjee Cooper's case, popularly known as the Bank Nationalisation case(7 Judges
Bench), the Court held:

"It is difficult to accept the submission that the views expressed in Khajamian Wakf Estates'
case, are contrary to Rustom Cavasjee Cooper's case. Apart from that this Bench cannot pass
upon the correctness or otherwise of the views expressed in Khajamian Wakf Estates' case.
Besides, we do not even think that the submission is well founded even to merit reconsideration
of the Khajamian Wakf Estates' case."

In view of the above discussions, it is submitted that the preposition put forth in 'Bafna' that 'the
earlier vintage must prevail' cannot be considered as a binding precedent as it was rendered 'per
incurium' of the larger bench decisions. Moreover in 'Bafna' the matter was inadequately
considered, it appears that the other point of views (later judgment proposition or matching
authority proposition) were neither raised nor argued or considered, hence not even much
persuasive value can be ascribed to the observation in 'Bafna'

In this context it is apposite to mention that the Kerala High Court in Raman Gopi and Another
v. Kunju Raman Uthaman, 2011 (4) KLT 458, after referring to some Supreme Court Judgments,
observed as under

"The caution expressed by the Apex Court in various cases mentioned above, that the High Court
cannot refuse to follow a binding decision of the Apex Court, is important in this context. The
application of the rule of subsilentio and that of per incuriam should be guarded…."

The above caution is in such sharp language that any Judge would think many times and some
would possibly hesitate to decide that a judgment of the Superior Court is per incuriam. Judges
may even attempt to resort to other means like "distinguishing" the judgment to avoid the use of
the phrase 'per incuriam'. There is no doubt that the Judgments of the Superior Courts are
entitled to utmost respect and the subordinate Court should keep themselves with in the limits of
judicial discipline and decorum and cannot critisise Superior Courts. But it is also the judicial
duty of a Judge to say so when a Judgment of the Superior Court is plainly found to be per
incuriam and decide the case before him accordingly. The above cautions should not work as
absolute deterrence.

Ganga C v. Lakshmi Ammal and Another (R. Basant, J.) (Kerala High Court), 2008 (2) KLT
306:-

In this case the issue before Justice R. Basant, was as under;

"Are the Criminal Courts jurisdictionally competent to impose a sentence of imprisonment in

default of a direction to pay compensation under S. 357(3) CrPC?

After referring to the principles of victimology implicit in Section 357(3) CrPC and a threadbare
analysis as to what ought to be the correct law, the Court favoured the view in Harikrishnan v.
Sukhbir Singh and Others, AIR 1988 SC 2127, holding that a sentence of imprisonment in
default of a direction to pay compensation under S. 357(3) CrPC is permissible. The Court also
held that the contrary view in 'Ettappadan Ahammedkutty v. E. P. Abdullakoya and Another,
2008 (1) KLT 851 SC ' was per incurium and not binding and laid down the following
proposition:

"If any smaller or coordinate bench unfortunately overlooks or omits to refer to an earlier
binding precedent of a larger or coordinate bench and a conflict… exists such later decision has
no binding sway and must be reckoned as rendered per incurium. Such decisions per incurium
cannot be followed. Subordinate Courts with respect must choose to follow the earlier binding
precedents notwithstanding the later per incurium decision of the smaller or coordinate bench."

In coming to the said conclusion the court relied on some general observations of the Supreme
Court, emphasysing adherence to precedence including the one in Mamaleshwar Prasad v
Kanhaiya Lal (Dead), AIR 1975 SC 907, where Justice V.R Krishna Iyer, as a passing reference
observed as follows:

"Certainty of the law, consistency of rulings and comity of courts all flowering from the same
principle converge to the conclusion that a decision once rendered must later bind like cases. We
do not intend to detract from the rule that, in exceptional instances where by obvious
inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory
authority running counter to the reasoning and result reached, it may not have the sway of
binding precedents. It should be a glaring case, an obtrusive omission. No such situation
presents itself here and we do not embark on the principle of judgment per incuriam"

With due respect, it is submitted that the above passing passage or any of the Judgments of the
Supreme Court referred in 'Ganga', cannot be taken as laying down the proposition that in case
of conflict between coequal benches the earlier one will prevail.
Jabalpur Bus Operators Association and Ors. Vs. State of M.P. and Anr . [AIR 2003 Madh Pra
81; A Full Bench of Madhya Pradesh High Court, comprising of 5 Judges elaborately dealt with
the issue and laid down as follows;

"In case of conflict between two decisions of the Apex Court, Benches comprising of equal
number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of
equal strength, in which case the later decision is binding.…No decision of Apex Court has been
brought to our notice which holds that in case of conflict between the two decisions by equal
number of Judges, the later decision is binding in all circumstances, or the High Courts and
Subordinate Courts can follow any decision which is found correct and accurate to the case
under consideration. High Courts and Subordinate Courts should lack competence to interpret
decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of
the Constitution of India but also militate hierarchical supremacy of Courts."

It is submitted that the above view is hypertechnical. Choosing between two conflicting ratios of
equal strength of the Superior Courts for the purpose of dispensing Justice at the grass root
level, per se, would not militate against the hierarchical supremacy of superior Courts.

Some of the Judgments Expressing the View that the Decision Later in Point of Time, Will
Prevail Over the Earlier One

Joseph v. Special Tahsildar, 2001 (1) KLT 958(FB) A. V. Savant; CJ, K. S. Radhakrishnan; R.
Rajendra Babu, JJ(High Court of Kerala):-

The case related to the requirement of proof of protest under the 2nd proviso of Section 31(2) of
the Land Acquisition Act 1894. In Writ Appeal No. 599 of 1994,Special Tahsildar, Land
Acquisition v. Kariyamparambil Raghavan, a Division Bench of the High Court referred the
decisions of the Apex Court in Wardington Lyngdoh v. Collector, Mawkyrwat (AIR 1995 SC
2340) and Land Acquisition Officer v. Shivabai 1997 (9) SCC 710 and came to the conclusion
that oral protest was necessary before the claimant could make an application under S.18 of the
Act and on the basis of lack of proof of such protest, dismissed the claim. Whereas another
Division Bench in Kannan v. Land Acquisition Officer (1999 (2) KLT 643), preferred to rely
upon the earlier decision of the Apex Court in Ajit Singh v. State of Punjab 1994 (4) SCC 67 and
took a liberal view and allowed the claim. In view of the above conflict of views, case was
referred to full bench and the main question involved in the reference was as follows:

"Can an oral protest be inferred to have been made merely because, subsequently, an application
for reference has been made under S.18 of the Act?"

The Court after an independent analysis of the Provisions and also a survey of case laws held
that the observation in para 5 in Ajit Singh's case viz "5...........Inasmuch as the appellants have
filed an application for reference under S.18 of the Act that will manifest their intention.
Therefore, the protest against the award of the Collector is implied notwithstanding the
acceptance of compensation", can neither be construed as the ratio or even an obiter in that case."
To come to such a conclusion the court relied on the various observations of the Supreme as
reiterated in United India Insurance Co. Ltd. v. Alavi ((1998 (1) KLT 951) viz.

"…a decision which is not expressed and is not found on reasons nor proceeds on consideration
of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by
Art.141 of the Constitution" (Delhi Transport Corporation v. D. T. C. Mazdoor
Congress ((1991) Supp. SCC 600)

"Any declaration or conclusion arrived without application of mind or preceded without any
reason cannot be deemed to be declaration of law or authority of a general nature binding as a
precedent….A conclusion without reference to relevant provision of law is weaker than even
casual observation". (State of U.P. v. Synthetics & Chemicals Ltd. 1991 (4) SCC 139).

Then the Court incidentally expressed the view that the later decision must prevail over the
earlier decision in a situation where an apparent conflict between an earlier and a later decision
of the Apex Court by Benches consisting of equal number of judges is pointed out. The Court
also referred to the following decisions inorder to prefer 'Wardington' and 'Shivabai' over 'Ajit
Singh'

(i) In Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari (AIR 1980 Bombay 341), a Division
Bench of the Bombay High Court was dealing with a similar question under Art.141. It was held
that in case of a clear conflict between two decisions of the Apex Court of equal number of
Judges, the later decision would be binding on the High Court.

(ii) In Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd.(AIR 1980 Karnataka 92) a Full
Bench of five learned Judges of the Karnataka High Court held that if two decisions of the Apex
Court on a question of law cannot be reconciled and one of them was by a larger Bench while the
other is by a smaller Bench, the decision of the larger Bench, whether it is earlier or later in point
of time, should be followed by the High Courts and other Courts. However, if both such Benches
of the Apex Court consists of equal number of Judges, the later of the two decision should be
followed by the High Courts and other Courts. This opinion of the Full Bench is to be found in
para 12 at page 95.

Strangely the Court also relied on the diametrically opposite proposition laid down by S.S.
Sandhawalia, C. J. in the Full Bench decision in Amar Singh Yadav v. Shanti Devi (AIR 1987
Patna 191) to prefer 'Wardington' and 'Shivabai' over 'Ajit Singh'. The Court in 'Joseph' observed
as follows;

"(iii) In Amar Singh Yadav v. Shanti Devi (AIR 1987 Patna 191 (F.B.)), a Full Bench of the
Patna High Court held that where there is a direct conflict between two decisions of the Apex
Court rendered by Benches of equal strength, the High Court must follow that judgment which
appears to it to state the law more elaborately and accurately. The said observations are to be
found in para 24 of the judgment at page 201.)"
Raman Gopi and Another v. Kunju Raman Uthaman, 2011 (4) KLT 458(3 Judges Bench) :-

The question involved in the case was whether 'merger' will apply for deciding the limitation
period for filing Execution Petition, when the petition for condonation of delay is dismissed and
consequentially appeal is also dismissed.

In Chandi Prasad v. Jagdish Prasad , 2004 (3) KLT 654 (SC) : 2004 (8) SCC 724 , Supreme
Court observed as follows:

"However, when an appeal is dismissed on the ground that delay in filing the same is not
condoned, the doctrine of merger shall not apply."

Whereas in Shyam Sunder Sarma v. Pannalal Jaiswal, 2005 (1) KLT 198: AIR 2005 SC 226, the
Supreme Court expressed a contrary view as quoted below:

"An appeal registered under R.9 of O.41 of the Code had to be disposed of according to law and
a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an
application for condoning the delay, is in substance and effect a confirmation of the decree
appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal
filed along with an application for condoning the delay in filing that appeal when dismissed on
the refusal to condone the delay is never the less a decision in the appeal."

In 'Raman Gopi' the Court held:

"Therefore, the conflicting decisions rendered in Chandi Prasad's case and Shyam Sunder
Sarma's case, are by coequal Benches. What shall be the principle to be followed by this Court
and the subordinate Courts in such circumstances is the question that has arisen for consideration
herein, especially in the light of Art.141 of the Constitution of India.

In fact, as far as this Court is concerned, the very same legal issue is concluded by a Full Bench
of this Court in Joseph v. Special Tahsildar (supra) wherein it was held that in a case of conflict
between two decisions of Benches of equal strength of Judges of the Apex Court, the decision
later in time will be binding."

The Court also cited the following Judgments which expressed the view that in case of such
conflict the later decision will prevail, viz, Gujarat Housing Board, Ahmedabad v.
Nagajibhai, AIR 1986 Guj. 81(FB), Gopal Krishna Indley v. 5th Addl. District Judge, Kanpur
and Others, AIR 1981 All. 300(Allahabad High Court), Govindanaik G. Kalaghatigi v. West
Patent Press Co. Ltd., AIR 1980 Kar. 92(FB), Deputy Commissioner v. Anandan, 1987 (1) KLT
192 :(DB), Krishnan Namboodiri's case, 1992 (2) KLT 803. Etc

Analysis of 'Joseph' and 'Raman Gopi'

In 'Raman Gopi', the court extensively dealt with the ancillary aspects which have a bearing on
the main issue, viz, the distinction between 'ratio' and 'obiter' and what constitute a binding
precedent, the expression 'law declared' under Art. 141, doctrines of "subsilentio" and "per
incuriam", Principle of 'stare decisis' and the circumstance under which the Superior Courts
could overrule its own decisions etc etc and in the process surveyed through innumerable
Judgments of the Supreme Court and High Courts. It is submitted that the Judgment in 'Raman
Gopi' is a very worthy single point referencer on all the above aspects. But regarding the main
issue, even though an argument was raised by the Counsel, that the subordinate courts would
have the freedom to choose the judgment which it considers to be better in point of law and a
few Judgments of other High Courts were cited in support, it appears from the tenor of the
judgment that the Court did not go in to the intrinsic merit of such a contention but on coming
across the bald observation in the coequal bench (three judges) in 'Joseph',(supra) perfunctorily
endorsed the view that the later decision will prevail. In 'Raman Gopi' the Court observed:

"In fact, as far as this Court is concerned, the very same legal issue is concluded by a Full Bench
of this Court in Joseph v. Special Tahsildar, 2001 (1) KLT 958(FB)"

But a close reading of 'Joseph' would show that the main point on which it preferred
'Wardington' and 'Shivabai' cases over 'Ajit Singh' is on the analysis of the provisions of the
Land Acquisition Act 1894 and on the finding that the observation in 'Ajit Singh' was not a 'ratio'
as referred above. The Bench in 'Joseph' observed as under:

"..to say that making of an application under S.18(1) is, by itself, enough evidence to hold that
protest must have been lodged at the time of receiving the payment is, in our view, wholly
impermissible in the scheme of S.31 and 18. We are, therefore, unable to agree with the broad
proposition stated by the Division Bench of this Court in Kannan's case as indicated above."

In coming to the conclusion that 'Ajith Singh' is not binding, the court as an ancillary/second
reason, observed that 'later decision will prevail', but the court also relied on the diametrically
opposite proposition laid down by S.S. Sandhawalia, C. J. in the Full Bench decision in Amar
Singh Yadav v. Shanti Devi (AIR 1987 Patna 191) as yet another reason. In this circumstance it is
submitted that the precedential status of the observation that 'later decision will prevail' is in
serious jeopardy as it cannot stand together with the proposition in 'Amar Singh', which confers
option to choose from the conflicting judgments, though both the propositions supported the
ultimate decision in 'Joseph'

It is submitted that the observation in 'Joseph' that the 'later decision will prevail' cannot be
considered as laying down an authoritative precedent in view of the circumstances mentioned
above.

In this context it is worth referring to the following observation of Delvin J, in Behrens v.

Pertraman Mills, (1957 (2) QB 25):
 "If the Judge gives two reasons for his decisions, both are binding. It is not permissible to pick
out one as being supposedly the better reason and ignore the other one; nor does it matter for this
purpose which comes first and which comes second. But the practice of making judicial
observation obiter is also well established. A judge may often give additional reasons for his
decision without wishing to make them part of the ratio decidendi; he may not be sufficiently
convinced of their cogency as to want them to have the full authority of the precedent, and yet
may wish to state them so that those who later may have the duty of investigating the same point
will start with some guidance. This is the matter which Judge himself is alone capable of
deciding, and any Judge who comes after him must ascertain which course he has adopted from
the language used and not by consulting his own preference."

The plea that 'Joseph' requires reconsideration was rejected in 'Raman Gopi', in this regard it was
observed as under;

"….the learned counsel is not right in submitting that in all cases where a co - equal Bench did
not notice an earlier decision of another Bench, it will be per incuriam and hence need not be
followed by the High Courts and Subordinate Courts. That is not the only test laid down by the
Apex Court in various decisions, we have discussed above. Therefore, we do not find any reason
to refer the matter to a larger Bench."

It is submitted that, neither 'Joseph' nor 'Raman Gopi' gave any reasons for holding that the ratio
in the later decision will/must prevail, except stating that some other High courts have held so. It
has to be realized that mechanical adherence to later decision will hinder the cause of justice in
many cases and the issue needs to be revisited by a larger bench.

Some of the Judgments Expressing the View that Subordinate Courts Would Have the
Option to Choose the One Which is Better in Point of Law.(Matching Authority
Proposition)

Indo Swiss Time Limited v. Umrao And Ors . AIR 1981 P H 213:- The question involved in this
case before the full bench of Punjab & Haryana High court was whether a company for whose
benefit land is acquired under the provisions of the Land Acquisition Act, 1894, can be
impleaded as a party in the Court of the District Judge in a reference preferred under Section 18
of the Act. The court considered the apparent conflict of views of the Coequal benches of the
Supreme Court in this regard.

In Himalayan Tiles and Marbles (P) Ltd. Case (AIR 1980 SC 1118), the Supreme Court
observed as under;

"…since under the agreement the company had to pay the compensation, it was most certainly
interested in seeing that a proper quantum of compensation was fixed so that the company may
not have to pay a very heavy amount of money. For this purpose, the company could
undoubtedly appear and adduce evidence on the question of the quantum of compensation."
Whereas in Municipal Corporation of the City of Ahmedabad v. Chandulal Shamaldas Patel,
(1970) 1 SCWR 183, the Supreme court negating the locus standi of the Municipal Corporation,
had held that the Municipal Corporation for whose benefit the land had been acquired could not
maintain an appeal in the Supreme Court against the judgment of the High Court.

In view of the above, the full bench of the High Court considered the principles to be followed
on the question of choice between the conflicting views of the coequal benches of the Apex
Court. Chief Justice S Sandhawalia, held as below:

" Now the contention that the latest judgment of a co-ordinate Bench is to be mechanically
followed and must have pre-eminence irrespective of any other consideration does not commend
itself to me. When judgments of the superior court are of co-equal benches and therefore of
matching authority then their weight inevitably must be considered by the rationale and the logic
thereof and not by the mere fortuitous circumstances of the time and date on which they were
rendered. It is manifest that when two directly conflicting judgments of the superior Court and of
equal authority are extent than both of them cannot be binding on the courts below. Inevitably a
choice though a difficult one has to be made in such a situation. On principles, it appears to me
that the high Court must follow the judgment which appears to it to lay down the law more
elaborately and accurately. The mere incidence of time whether the judgments of co-equal
Benches of the Superior Court are earlier or later is a consideration which appears to me as
hardly relevant."

In coming to the above conclusion the Chief Justice inter alia relied on a few High English
Authorities including, Hampton v. Holman, (1877) 5 Ch D 183(Jessel M. R), Miles v. Jarvis,
(1883) 24 Ch D 633, (Kay, J) and Young v. Bristol Aeroplane Co. Ltd., (1944) KB 718.

Further the Chief Justice quoted with high regard and approval the view of the great
constitutional visionary Sri. H.M Seervai, as under:

"Even though it is perhaps unconventional to quote a living authority, it deserves recalling that
Mr. Seervai in his latest edition of his authoritative work in the Constitutional Law of India has
opined as follows :- "*** But judgments of the Supreme Court, which cannot stand together,
present a serious problem to the high Courts and to subordinate Courts. It is submitted that in
such circumstances the correct thing is to follow that judgment which appears to the court to
state the law accurately or more accurately than the other conflicting judgments."

The Chief Justice also observed:

"I am keenly aware of the great difficulty of making a choice between the decisions of a Superior
Court when they are in direct conflict with each other. However, when such divergence arises
and the litigants' fortune depends thereon the issue can not possibly be evaded. Obviously in
such a situation it is not the province of the High Courts or the subordinate Courts to comment
on the judgments of a Superior Court which are patently entitled to respect. Its plain duty in the
interest of justice is to respectfully follow that which appears to it to state the law accurately or in
any case more accurately than the other conflicting judgment."

The Chief Justice after elaborate deliberations came to the conclusion that 'Himalayan Tiles and
Marbles (P) Ltd' was better in law and followed it over 'Municipal Corporation of the City of
Ahmedabad'. The other 2 Judges in the bench fully agreed with the principles laid down by the
Chief Justice on the question of choice between conflicting views. But applying the above very
same principle, in dissent to the Chief Justice both the Pusine Judges held that 'Municipal
Corporation of the City of Ahmedabad' is better in law and favoured it, over 'Himalayan Tiles
and Marbles (P) Ltd'.

Amar Singh Yadav And Anr. v. Shanti Devi And Ors AIR 1987 Pat 191:- After a few years
question identical to the one in 'Indo Swiss Time Limited' (supra) arose before the Patna High
Court, Justice S Sandhawalia was then the Chief Justice of the Patna High Court. The Judgment
of the full bench was delivered by the Chief Justice. The Principles enunciated in ' Indo Swiss
Time Limited' were reiterated. Both the Pusine Judges in the bench this time fully concurred
with the Chief Justice and held that 'Himalayan Tiles and Marbles (P) Ltd' was better in law.
Chief Justice S Sandhawalia, also dealt with and assailed the majority view in the above referred
'Govindnaik G. Kalaghatigi' as under;

" I am not unaware that in Govindnaik G. Kalaghatigi v. West Patent Press Company Limited,
AIR 1980 Kant92, a narrowly divided Full Bench has taken the view, by majority of three : two,
that in such a situation, the later of the two decisions should be followed. A perusal of the
judgment would, however, show that, in fact, there were two questions firmly posed before the
Full Bench -- firstly that where there was a conflict of two decisions of the Supreme Court of
unequal Benches, which one is to be followed and, secondly, when these decisions are of co-
equal Benches, then which decision is to be followed. It seems somewhat patent that the majority
view adverted to the first of the two questions alone, and, there does not appear to be any
discussion whatsoever on the second question. The minority decision, however, while agreeing
with the majority view on the first question, adverted to the second question and considered the
matter in detail, concluding as follows : -- ".....It seems to us, therefore, the High Court would be
well advised to consider which of two conflicting decisions it will follow in the interest of the
administration of justice and it ought to follow that which is better in point of law than in point
of time."

With great respect, I am inclined to wholly agree with the aforesaid view of the minority and it
bears repetition that the majority view does not seem to have even adverted to this question in
essence"

Chandran v. Excise Inspector ( K. T. Thomas, J.) 1989 (2) KLT 845 :- In this case the question
posed before Justice Thomas was whether a criminal appeal (which is otherwise ripe for hearing)
be dismissed for default or for non prosecution? In Ram Naresh Yadav v. State of Bihar (AIR
1987 SC 1500), a bench of two Judges had observed that "the court can dismiss the appeal for
non prosecution and enforce discipline" whereas, in Shayam Deo v. State of Bihar (AIR 1971 SC
1606) another bench of two Judges adverted to the provisions of the Code of Criminal Procedure
and laid down the law in the following lines:

"..a criminal appeal cannot be dismissed for default of appearance of the appellants or their
counsel. The court has either to adjourn the hearing of the appeal in order to enable them to
appear or should consider the appeal on merits and pass final orders."

Justice Thomas, held that the observation in 'Ram Naresh Yadav' is not a 'ratio' and cannot be
held to be a 'Declaration of Law'. Further on the question of choice between conflicting decisions
of the Supreme Court, quoted extensively from the above 'Amar Singh' with utmost appreciation
and approved the view that in case of conflict, the decision better in point of law should be
followed.

1. M. Bholanath Karmakar and Others v. Madanmohan Karmakar and Others, AIR 1988
Cal. 1, (FB) The court observed:

"….view appears to us to be in perfect consonance with what our ancient Jurist Narada declared
Dharmashastra Virodhe To Yuktiyukta Vidhe Smrita--that is, when the Dharmashastras or Law
Codes of equal authority conflict with one another, the one appearing to be reasonable, or more
reasonable is to be preferred and followed.

where there are contrary decisions of the Supreme Court rendered by Benches of equal strength,
the High Court, in theory, being bound by each one, is, in effect, bound by none and is not
necessarily obliged to follow the latter in point of time, but may follow the one which, according
to it, is better in point of law."

The court further cited the following reasons in support of the above proposition: "It is true that
if there are two contrary legislations enacted by the same Legislature, the later would impliedly
repeal the earlier and would be the binding law. But we do not think that this legislative anology
would at all be apposite and can help us in solving the question before us because the very same
Legislature can always repeal or alter its own law, even impliedly, while over-ruling being an act
of superior jurisdiction, one Bench can not over-rule expressly or by implication, a decision of a
co-equal Bench. It is also true that the view that when there are conflicting decisions rendered by
co-ordinate authorities, the later decision would govern us, would be conducive to certainty in
the field of law. But the same certainty would also be achieved if it is also ruled that the later
Bench being not competent to over-rule the earlier decision of a co-ordinate Bench, the earlier
decision would still continue to be the good law….We are, however, inclined to think that no
blanket proposition can be laid down either in favour of the earlier or the later decision and, as
indicated hereinbefore, and as has also been indicated by the Supreme Court in Atmaram, the
subordinate Court would have to prefer one to the other and not necessarily obliged, as a matter
of course, to follow either the former or the later in point of time, but must follow that one,
which according to it, is better in point of law. As old may not always be the gold, the new is
also not necessarily golden and ringing out the old and bringing in the new cannot always be an
invariable straight-jacket formula in determining the binding nature of precedents of co-ordinate
jurisdiction."

Though the court gave cogent reasons as above for favouring the proposition of 'option to
choose' but ultimately left the question open to be decided on a more suitable occasion where
such a question would squarely fall for determination.

Madras High Court in R. Rama Subbarayalu v. Rengammal, AIR 1962 Mad 450(FB), observed:

'where the conflict is between two decisions pronounced by a Bench consisting of the same
number of Judges, and the subordinate Court after a careful examination of the decisions came to
the conclusion that both of them directly apply to the case before it, it will then be at liberty to
follow that decision which seems to it more correct, whether such decision be the later or the
earlier one'.

Nagpur High Court in D.D. Bilimoria v.Central Bank, AIR1943 Nag 340 observed:

'the result is not that the later authority is substituted for the earlier, but that the two stand side
by side conflicting with each other'

Madhya Pradesh High Court in Smt. Kalabai Choubey and Others v. Rajabahadur Yadav and
Another, AIR 2002 MP 8 and Rajastan High Court in Jaipur v. M/s. Himalaya Paper
(Machinery) Pvt. Ltd., New Delhi, AIR 1990 Raj. 120, have also taken similar views, conferring
option to choose from the conflicting ratios the one which the court considers to be better in
point of law.

Atma Ram v. State of Punjab, (S. R. Das, C. J. I. ; N. H. Bhagwati; B. P. Sinha; K. Subba Rao; K.
N. Wanchoo, JJ.)AIR 1959 SC 519 :- In this case the Constitutional Bench of the Supreme court
was called upon to examine the Constitutionality of the provisions of the Punjab Security of
Land Tenure Act . The Apex Court noticed conflict of views of two Full Bench Decisions of the
Punjab High Court as regards the interpretation of the word 'estate' in Art. 31 A of the
Constitution as to whether it will include portion of the estate also (Application of the Maxim
"the greater contains the less" -'Omne majus continent in se minus'). The Supreme Court while
endorsing the view that Art.31A of the Constitution applied equally to portion of the estates also,
observed as under:

"…. The later Full Bench case referred to above was decided by three Judges, including
Bhandari C. J., who agreed with the judgment of the Court delivered by Grover J. Perhaps, the
better course would have been to constitute a larger Bench, when it was found that a Full Bench
of three Judges was inclined to take a view contrary to that of another Full Bench of equal
strength. Such a course becomes necessary in view of the fact that otherwise the subordinate
courts are placed under the embarrassment of preferring one view to another, both equally
binding upon their. In our opinion, the view taken by the earlier Full Bench is the correct one.
The learned Chief Justice who was a party to both the conflicting views on the same question has
not indicated his own reasons for changing his view."

It is often rightly reiterated that: "An obiter cannot take the place of the ratio and Judges are not
oracles", "observations of Courts are neither to be read as Euclid's theorems nor as provisions of
the statute" And that "It is not a portable task to extract a sentence here and there from a
judgment and to build upon it."

Still it is submitted that, the above underlined observation, rendered by the bench comprising a
battery of 5 most eminent Judges of the Supreme Court, indicating their view that the
subordinate courts would have option to choose from the conflicting judgments of coequal
benches, though not the 'ratio' of the case, would carry serious persuasive value in supporting the
school which favours option to choose between conflicting judgments of coequal benches.

Evaluation – An Attempt to Arrive at the Correct Law

In Young v. Bristol Aeroplane Co. Ltd(1944) 1 KB 718), the Court of appeal held: "..the court is
unquestionably entitled to choose between the two conflicting decisions." After analyzing
English law in this regard in general and the ruling in Young v. Bristol in particular, Prof.
Fitzjerald in the International classic work-'Salmond on Jurisprudence' (twelfth edition, Indian
reprint, Page 27), opined as under:

"The earlier case can be disregarded because of the subsequent inconsistent decision on the same
level of authority, and the later case can be disregarded because of its inherent vice of ignoring
the earlier case. Where authorities of equal standing are irreconcilable in conflict, a lower court
has the same freedom to pick and choose between them as the schizophrenic court itself. The
lower court may refuse to follow the later decision on the ground that it was arrived at per
incuriam, or it may follow such decision on the ground that it is the latest authority. Which of
these two courses the court adopts depends, or should depend, upon its own view of what the law
ought to be. However, it takes a some what bold judge to disregard a precedent handed down by
a court of higher standing on the ground that the decision was per incuriam."

It appears that in America, as it is in India, there are different view points on the issue,
predominant view being the one which confers the option to choose the 'ratio' which is better in
point of law (See Corpus Juris Secundum 2005 Edition Vol 21 P 200).

When there is no direct statutory prescription on a matter, the thoughts and views based on
justice, equity and good conscience of the great legal brains/ luminaries, serve as search lights to
remove the darkness. In this sense the above said reasoned views of Prof. Fitzgerald and Sri.
H.M Seervai should command great weight.
The High Courts and the subordinate courts do not have the option to refer the matter to the
larger bench of the Supreme Court to resolve the inconsistency, which the smaller benches of the
Supreme Court only would have. And it is not practically possible for every litigant to approach
the Supreme Court in pursuit of deserved justice, owing to money, time and other constraints. It
is submitted that mechanical adherence to earlier or later Judgment to attain uniformity would
hamper dispensation of justice at the grass root court level and is not justifiable. Artificial and
strict technicalities that hamper justice would serve no useful purpose. To quote Justice V.R
Krishna Iyer: "Courts are to do Justice and not to wreak the end product of technicalities". Strict
logic must make way for just logic.

It is submitted that the above referred detailed and convincing reasons spelled out in Indo Swiss
Time Limited (supra), Amar Singh Yadav(supra), A. M. Bholanath Karmakar (supra) etc, in
support of the view that the subordinate courts would have the option to choose the judgment of
the superior court which is better in point of law, out weighs the reasons given for theories
favouring mechanical adherence to the earlier or later judgment. The said view would facilitate
rendering of justice at the grass root court level in maximum cases. If permitted to choose from
the conflicting ratios of coequal benches of the superior courts, able officers of our subordinate
courts would more often than not choose the one which advances justice and is better in law and
thereby justice would be done at the court of first instance itself in more cases up until the
inconsistency is resolved by an authoritative pronouncement of a larger bench of the superior
court. Justice at the court of first instance is more purposeful than the probable, expensive, tiring
and delayed justice from the superior courts. Lapse of the later coequal bench to take