Does the Issue of Reference to Larger Bench Require Reference to a Larger Bench?

The question of reference is not just about the procedure, it is also about ensuring predictability, consistency and finality in judicial decisions: To ensure that the law remains stable and that citizens can rely on judicial pronouncements as authoritative.

The question of reference to a larger Bench has often vexed the Supreme Court, but no case has created as deep a fissure as Aligarh Muslim University v. Naresh Agarwal (AMU case)¹. In the AMU case, the Supreme Court was not just confronted with the issue of the minority status of Aligarh Muslim University, but was also grappling with the jurisdictional question relating to the validity of the reference made by a two-Judge Bench of the Supreme Court by way of order dated 26-11-1981 in Anjuman-e-Rahmaniya v. District Inspector of Schools².

While the majority led by Chief Justice D.Y. Chandrachud ruled in favour of the reference, a much elaborate dissent was individually penned by Justice Surya Kant, Justice Dipankar Datta and Justice Satish Chandra Sharma, who studiously sounded that the reference had been made in violation of the settled jurisprudence on Bench strength, hierarchy, and powers of the Chief Justice as the master of the roster.

The controversy over reference originated in two earlier decisions. The first was S. Azeez Basha v. Union of India³, decided by a five-Judge Constitution Bench in 1968, which held that the Aligarh Muslim University was not a minority institution under Article 30(1) because it had been established by an Act of Parliament and not by the Muslim community itself. The second was Anjuman-e-Rahmaniya case⁴ in 1981, where a two-Judge Bench of the Supreme Court, while hearing an unrelated minority education case, expressed doubt about the correctness of Azeez Basha case. The Bench observed that the earlier ruling might not have fully addressed certain aspects of Article 30(1) and directed that the matter be placed before a Bench of at least seven Judges for reconsideration. This formed the foundation for the seven-Judge Constitution Bench in the AMU case⁵.

When the AMU minority-status issue resurfaced in the year 2005, after the university reserved half of its postgraduate medical seats for Muslim students, the Allahabad High Court struck it down, applying the Azeez Basha case⁶. The matter then went to the Supreme Court, where, in 2019, a three-Judge Bench headed by then Chief Justice Ranjan Gogoi referred the case to a seven-Judge Bench for reconsideration of the Azeez Basha case.

The Union of India objected to the maintainability of the reference before the seven-Judge Bench. The majority, led by the former Chief Justice Chandrachud, rejected the objection, holding that the Anjuman-e-Rahmaniya case⁷ had merely doubted, but not disagreed with the Azeez Basha case⁸. And all it did was to invite the Chief Justice’s attention to a matter of importance.

The dissent, however, took a far stricter view of the limits of judicial power and held that the act of expressing doubt about a larger Bench’s decision is, in substance, an act of disagreement. It notably cautioned that permitting such irregular references would “completely undermine the principle of stare decisis, a well-established doctrine that mandates the consistent application of legal principles once pronounced by authoritative courts” and create a system where each smaller Bench could reopen settled law at will, destabilising the legal framework and eroding public confidence in the judiciary.

Curiously, both the majority and the minority judgments rely on the propositions laid down in Central Board of Dawoodi Bohra Community v. State of Maharashtra⁹ to arrive at their respective conclusions, which hold that:

1. the decisions of this Court rendered by a Bench of larger strength are binding on Benches of a lesser or equal strength.

2. If a Bench of lower strength is doubtful about the correctness of a judgment delivered by a Bench of larger strength, it cannot disagree or dissent from the view taken by the larger Bench. In case of doubt, it can invite the attention of the Chief Justice of India to its opinion and request the Chief Justice to list the matter before a Bench, the strength of which is greater than that which delivered the judgment which has been doubted.

3. The correctness of the view taken by any Bench can only be doubted by a Bench of equal strength. The matter will then be placed for hearing before a Bench of greater strength.

The majority found the reference consistent with the aforesaid dicta; however, the dissenting judgments held that the 1981 reference could not have doubted the correctness of the view taken by the larger Bench in the Azeez Basha case¹⁰, and referred the matter to a seven-Judge Bench.

Justice Dipankar Datta , in his dissenting opinion, has attempted to clarify and reconcile the conclusions drawn by the Supreme Court in Central Board of Dawoodi Bohra Community case¹¹, insofar as a smaller Bench cannot dictate the numerical strength of a larger Bench, as that discretion lies solely with the Chief Justice of India in his capacity as the master of the roster. When a smaller Bench doubts the correctness of a decision of a larger Bench, it has only two options available. First, it may place the matter before the Chief Justice for consideration, without prescribing or directing the composition of the proposed larger Bench. Second, it may refer the matter to a Bench immediately higher in strength for reconsideration of the earlier view. Only a Bench of coequal strength can doubt the correctness of an earlier decision passed by a Bench of equal strength, upon which the matter may be placed for hearing before a Bench consisting of a quorum larger than the one that delivered the original judgment.

The aforesaid analysis of Datta J draws sustenance from the earlier judgments of the Supreme Court in Shri Bhagwan v. Ram Chand¹², Pradip Chandra Parija v. Pramod Chandra Patnaik¹³ and Union of India v. Hansoli Devi¹⁴, which underscore the significance of judicial discipline, decorum and hierarchy in justice delivery. The said view has resonated with Justice Surya Kant and Justice Sharma, who have also invoked the principles of finality, stare decisis and precedence, which require that the law laid down by higher courts is followed by coordinate or coequal Benches, and most certainly by smaller Benches and subordinate courts.

Surya Kant J, in para 94 of his opinion, really encapsulates the precise problem with the reference order in the Anjuman-e-Rahmaniya case¹⁵:

263. … the Bench not only referred the matter but also specified the numerical strength of the Bench to which it should be referred, with a further direction that the matter be placed before the Chief Justice for the limited purpose of notifying the composition of the seven-Judge Bench.

This not only impairs the Chief Justice’s authority as the master of the roster but also undermines the doctrine of stare decisis.

The question of reference is not just about the procedure, it is also about ensuring predictability, consistency and finality in judicial decisions: To ensure that the law remains stable and that citizens can rely on judicial pronouncements as authoritative. As held by Justice Surya Kant, “Deviation from these long-settled principles leads to a situation marred by uncertainty and instability, vitiating any sense of finality.”¹⁶

It is also about preserving the Chief Justice’s administrative independence; the Chief Justice is not merely the first among equals but the Custodian of the Court’s composition. If smaller Benches could dictate the size or composition of larger Benches, the Chief Justice’s prerogative as master of the roster would be undermined. Such a practice would place the Chief Justice in an untenable position and lead to procedural complications and embarrassment. Erosion of the Chief Justice’s discretion would blur the separation between judicial decision-making and administrative functioning, creating confusion at the highest institutional level.

If Benches of two or three Judges could, by invoking doubt, compel reconsideration of any larger Bench decision, there would be no logical limit of references. Even a 13-Judge Bench decision such as Kesavananda Bharati could be reopened and would plunge the system into chaos. The resulting unpredictability would not only burden the Court but also undermine public faith in its authority.

In light of the sharp divergence between the majority opinion and the dissenting opinions, it appears that the issue of reference to a larger Bench may itself warrant consideration by a larger Bench of the Supreme Court. Even so, the view taken by the dissenting Judges is quite thorough, holistic and in conformity with earlier pronouncements, jurisprudential concepts, and settled principles of law. The dissenting opinions take exception to the tone, tenor, and manner in which the reference was made in the Anjuman-e-Rahmaniya case¹⁷, noting that such an approach risk eroding the principles of judicial discipline, propriety, and finality that form the foundation of the Court’s institutional integrity.