Reference by a smaller bench could be rejected at the threshold by a larger bench and

on what grounds

In Gopakumar B Nair Vs. CBI and another. A three Judge Bench of the Supreme Court
headed by the Chief Justice of India has held that reference of a case to a larger Bench
necessarily has to be for a reconsideration of the principle of law on which the case
has been decided and not the merits of the decision.

From the commencement of the Supreme Court functioning under our Constitution, various
references have been made by Benches of two Judges to larger Benches of five or more
Judges. Reference by smaller Benches of the Supreme Court to larger Benches, as noted
above, was necessitated by the fact that the Supreme Court sits in divisions of two or more
Judges, and in keeping with the doctrine of stare decisis. The recent rulings in Bharat
Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha5 and Pradip Chandra Parija v.
Pramod Chandra Patnaik6 under which two-Judge Benches make a reference only to a
three-Judge Bench. A two-Judge Bench is required to follow a larger Bench decision, not
because it is bound by it, but because judicial propriety and certainty in the law require it.
But, when a two-Judge Bench doubts the correctness of a larger Bench decision, it has the
competence to refer the matter to a larger Bench to decide the correctness of the law laid
down in the previous decision.

In Mumbai Shramik Sangha case a five-Judge Bench dealt with the issue as to the
competence of a two-JudgeBench to doubt the correctness of a five-Judge Bench decision,
the competence of a two-Judge Bench to doubt the correctness of a three-Judge Bench
decision and reference by it by a five-Judge Bench was considered in Pradip Chandra
Parija v. Pramod Chandra Patnaik, wherein it was held that judicial discipline and
propriety demand that a Bench of two learned Judges should follow a decision of a Bench of
three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment
of three learned Judges is very incorrect, that in no circumstances can it be followed, the
proper course for it to adopt is to refer the matter to a Bench of three learned Judges setting
out the reasons why it could not agree with the earlier judgment. If, then, the Bench of three
learned Judges also comes to the conclusion that the earlier judgment of the Bench of three
learned Judges is incorrect, reference to a Bench of five learned Judges is justified.

The Apex court in Siddharam Satlingappa Mhetre v. State of Maharashtra refused to

follow the decision of co-ordinate benches, which was opposed to the decision of an earlier
Constitutional Bench. The Hon'ble Supreme Court explained the concept of "per incuriam" as
following:

“ Now we deem it imperative to examine the issue of per incuriam raised by the learned
counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293
the House of Lords observed that 'Incuria' literally means 'carelessness'. In practice per
incuriam appears to mean per ignoratium. English courts have developed this principle in
relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is
rendered, 'in ignoratium of a statute or other binding authority. The same has been accepted,
approved and adopted by this court while interpreting Article 141 of the Constitution which
embodies the doctrine of precedents as a matter of law.

Although a smaller Bench cannot overrule a judgment of a larger Bench, yet it undoubtedly
has the power to doubt the correctness of a larger Bench decision. If a smaller Bench is
convinced of an error in a larger Bench decision and its baneful effect on the general interests
of the public, it is not bound by such a decision. While the principle of stare decisis et non
quieta movere, meaning that settled decisions should not be unsettled, has become a well-
accepted principle in our jurisprudence, and consistency in the law may be a guiding factor,
in Waman Rao v. Union of India Chandrachud, C.J. observed that future perpetration of
illegality is no part of stare decisis. Hence, the twin factors that settled decisions should not
be unsettled and the perpetration of illegality is no part of stare decisis may be the guiding
factors for a smaller Bench which refers the matter to a larger Bench.