The law laid down by Supreme Court is binding on subsequent benches of lesser or coequal strength. A bench of lesser strength cannot disagree or dissent from the view taken by a bench of a larger quorum. In case of any doubt, such a bench may only invite the attention of the Chief Justice and request for the matter to be placed for hearing before a bench of a larger strength than the quorum of the bench whose decision was being considered. A bench of coequal strength may go one step ahead, and express an opinion doubting the correctness of the view taken by the earlier bench of coequal strength. Subsequently, the matter may be placed before a larger bench to lay down the law on the correctness of the decision which is doubted.[1]
Judges of Supreme Court have the liberty to pronounce separate dissenting judgment(s). However, it is the decision of the majority of judges which constitutes the binding judgment.[2] The binding nature of the judgement depends on the bench strength and not the numerical strength of the majority taking a particular view. For instance, if a judgment is pronounced by a bench of seven judges, with four judges constituting the majority, and the remaining three judges dissenting from the view of the majority, the majority judgement will constitute a binding judgment by a bench of seven judges and not a bench of four judges. This position of law has been clarified and settled by a Constitution Bench of Supreme Court in Trimurthi Fragrances (P) Ltd. v. State (NCT of Delhi), 2022 SCC OnLine SC 1247; 2022 INSC 975.
A dissenting judgment, however, must be distinguished from a concurring judgment. A dissenting judgment is a judgment signed by a minority of judges, with or without an accompanying opinion, which expresses non-concurrence with the decision of the majority of judges of the court. However, judges of Supreme Court who agree with the decision of the majority may also author separate opinions. In such ‘concurring opinions’, the judge (or judges) agree with the conclusion of the majority, though they separately state their views on the case or their reasons for concurrence. Such opinions may be based on different grounds and the judges may give separate reasons, even about observations on which they concur with the majority.
The majority judgement too is not always contained in a single opinion. It is common practice for a plurality of judges of Supreme Court to render separate opinions, and it is from the conclusions and concurring observations of each of their judgements that a majority opinion is identified.
In order to determine whether the observations in the concurring opinion of a numerical minority of judges constitute a binding precedent, we must ask two questions.
Firstly, when only the concurring opinion expounds the law on a particular point, does the majority opinion indicate a difference of opinion from that view or distance itself from such reasoning?
Secondly, are the observations in the concurring opinion essential to the ratio decidendi and can they be regarded as an expression of opinion on behalf of Supreme Court as a whole? These requirements are cumulative. For observations in a concurring opinion to be binding on a smaller or coequal bench, the observations in the concurring opinion should be both free from disagreement or difference by the majority of judges and also be a part of the ratio decidendi of the judgment.
The disagreement with the concurring view in the majority opinion may be express or implied. The majority may expressly state that it disagrees with or distances itself from the view taken in a concurring opinion on a particular issue. Alternatively, the discussion in the majority judgment on that issue may be at odds with the observations in the concurring opinion. It is the latter situation that becomes more tricky, particularly, when a single opinion has not been authored on behalf of the majority.
A Constitution Bench of Supreme Court in Jaishri Laxmanrao Patil v. State of Maharashtra, (2021) 8 SCC 1; 2021 INSC 284. has provided some assistance about how to cull out the binding majority opinion in such a situation, where various judges, discuss the same question of law albeit differently. The Constitution Bench (speaking through Justice Ravindra Bhat) relied on the observations in Rajnarain Singh v. Patna Administration Committee, (1954) 2 SCC 82; 1954 INSC 69. and held that to cull out the majority in such cases, the Court must attempt to ascertain the ‘greatest common measure’ of agreement. The Court held:
“355. Before we proceed to notice the relevant paragraphs of the judgment of Indra Sawhney, we need to first notice method of culling out the majority opinion expressed in a judgment where more than one judgments have been delivered. The Constitution Bench of Supreme Court in Rajnarain Singh v. Patna Admn. Committee, had occasion to find out the majority opinion of a seven-Judge Bench judgment delivered by Supreme Court in Delhi Laws Act, 1912, In re. the Constitution Bench laid down that opinion which embodies the greatest common measures of the agreement among the Bench is to be accepted as the decision of the Court . Thus, for culling out the decision of the Court in a case where there are several opinions, on which there is greatest common measure of agreement is the decision of the Court .”
Therefore, in situations where several opinions are authored, dealing with the same questions of law, to identify the propositions of law that are binding on subsequent benches, the greatest common measure of agreement by a majority of judges would be binding on future benches.
It must be noted, however, that there is a difference between whether an observation is a binding precedent and whether it is a position of law that may have persuasive value on subsequent benches. In the absence of disagreement by a majority of judges (either express or implied), nothing precludes subsequent benches of Supreme Court from relying on observations made in a concurring opinion (on behalf of the minority of judges) which are not discussed by the other judges at all.
It is assumed in such cases, that all judges on the bench have read the opinions of one another, and did not deem it necessary to either state their express disagreement with the opinion or lay down a different understanding of the proposition of law (implied disagreement).[3]
For instance, in Navtej Singh Johar v. Union of India , (2018) 10 SCC 1 [442-446]; 2018 INSC 790. one of us (DY Chandrachud, J) authored a concurring opinion, recognising the concept of ‘indirect discrimination’. While technically this was an opinion on behalf of only one judge, the other judgements in the case did not discuss this issue at all. Neither did the other judges expressly disagree with the view, nor did they present a view on the subject that could be seen as being at odds with the view taken in the concurring opinion. In the absence of such disagreement, express or implied, subsequent benches of Supreme Court were not precluded from relying on the observations as having persuasive value.
In Lt. Col. Nitisha & Ors . v. Union of India & Ors , (2021) 15 SCC 125 [50]; 2021 INSC 210. a two-Judge Bench of Supreme Court relied on the conception of ‘indirect discrimination’ while analysing an evaluation criteria set by the army, which was facially neutral but disproportionately impacted women officers. The bench was not violating judicial discipline merely because a majority of judges did not expressly agree with the view or discuss the concept at all. The fact that the observations of the concurring opinion were not disagreed with or even discussed is sufficient for a subsequent bench to rely on the same if they choose to do so. In such cases, the court is not bound by the view but may choose to rely on it.
Reference
Property Owners’ Association v. State of Maharashtra (2024)
[1] Central Board of Dawoodi Bohra v. State of Maharashtra, (2005) 2 SCC 673 [12]; 2004 INSC 720
[2] Article 145(5), Constitution of India . [It reads: “No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.”] A similar provision was contained in Section 214(4) of the Government of India Act, 1935.]
[3] Kaikhosrou (Chick) Kavasji Framji v. Union of India , (2019) 20 SCC 705 [40-46]; 2019 INSC 378.