The discipline of judicial disagreement

In an expanded Supreme Court, bench discipline and codified referral procedures become all the more critical

In his 1928 Columbia University lectures, Charles Evans Hughes, later 11^th Chief Justice of the United States (1930-1941), called a dissent in a court of last resort “an appeal to the brooding spirit of the law, to the intelligence of a future day.” Dissent is institutional health: conviction within a single ruling, by a judge sitting with the majority she opposes. Justice Rohinton Nariman’s Discordant Notes (2021) traces its lineage.

Polyvocality is a different animal: disagreement between benches, not within one. Two coordinate panels rule differently on the same question, neither aware of the other. Nick Robinson’s Structure Matters (American Journal of Comparative Law, 2013) and his earlier EPW study (2011) of Constitution Benches from 1950 to 2009 anatomise it. It is the price of coordination failure, not of conviction.

With the strength of the Supreme Court rising from 34 to 38 judges, the distinction becomes urgent. More benches mean more occasions on which the same question lands before different judges. Whether the Court speaks coherently to itself depends on bench discipline, a doctrine separate from dissent.

Bench discipline holds that a smaller or coordinate bench cannot dilute the ratio of an earlier larger or coordinate bench. A judge who believes an earlier ruling is wrong must refer the question to the Chief Justice. The locus classicus is Chief Justice P B Gajendragadkar in Lala Shri Bhagwan v. Ram Chand (1965): “considerations of judicial propriety and decorum” require the judge inclined to differ to place the papers before the Chief Justice. The doctrine keeps a polyvocal court from becoming cacophonous.

On September 1 last year, Justices Dipankar Datta and Manmohan did exactly that. In Anjuman Ishaat-e-Taleem Trust v. State of Maharashtra, considering whether the Right to Education Act, 2009, applies to minority institutions, they were “distressed” by the “fragmentation of the common schooling vision” wrought by the five-judge Constitution Bench in Pramati Educational and Cultural Trust v. Union of India (2014), which had held the Act did not apply. They doubted Pramati but did not decide against it. Citing Bhagwan v. Ram Chand, they framed four questions and referred them to the then Chief Justice B R Gavai.

Discipline is tested harder when coordinate benches disagree. On May 18, Justices B V Nagarathna and Ujjal Bhuyan, in Syed Iftikhar Andrabi v. National Investigation Agency, granted bail in a UAPA matter and recorded “serious reservations” about a coordinate bench’s ruling in Gulfisha Fatima v. State, accusing it of “hollowing out” the three-judge Union of India v. K A Najeeb. Yet they restated the rule: disagreement must travel to the Chief Justice.

Four days later, on May 22, in Tasleem Ahmed v. State Govt. of NCT of Delhi, Justices Aravind Kumar and Prasanna B. Varale were asked to take a side in the Gulfisha/Andrabi dispute. They refused. “Judgments of this Court are not to be answered by counter-observations from another Bench of equal strength,” they observed; “a Bench of equal strength cannot achieve, by language of reservation, what it cannot achieve by declaration of law.” Granting interim bail, they referred the conflict to Chief Justice Surya Kant.

It will be said the referral was unnecessary – that Andrabi was itself discipline at work, a smaller bench aligning with binding three-judge Najeeb against another that had drifted. The objection conflates substance with structure. Whichever bench read Najeeb better, two emphatic coordinate formulations were in the field. Discipline forbids leaving doubts of fundamental character to compete at coordinate strength.

A deeper objection runs the other way. The Court’s unpredictability is sometimes said to be part of its legitimacy: litigants who believe they have a chance against the odds repose confidence in a court not captured by a stable jurisprudence. The argument conflates two kinds of unpredictability. One is volatility in outcome across cases as panels and sensibilities shift; bench discipline does not touch it. The other is incoherence in the law, where two coordinate benches contradict each other on the same question, and the high courts must choose between them. That is institutional failure dressed as pluralism. Codified referral cures the second without disturbing the first.

A harder test of the doctrine

The 38-judge Court raises the stakes. More benches mean more occasions on which a coordinate bench encounters precedents it doubts. Discipline will sometimes hold, as in Anjuman and Tasleem Ahmed; it will sometimes fail through “distinguishing” or silent omission. “A doubt expressed in emphatic terms is still a doubt,” the Tasleem Ahmed bench warned; “it is not a declaration of law.”

Nor are Constitution benches insurance. In Rojer Mathew v. South Indian Bank (2019), a five-judge bench doubted K S Puttaswamy v. Union of India (2018) on Article 110(1) and referred to a seven-judge bench. The reference awaits decision, seven years on.

Four more judges will not make the Court speak more coherently. Discipline does, and discipline is habit, not headcount. The expanded Court must show two things: from coordinate benches, humility to refer when they doubt; from the Chief Justice, alacrity to constitute larger benches when references arrive. Otherwise, references pile up, as the seven-judge Money Bill reference has done for seven years, the nine-judge Sabarimala reference for almost eight.

Germany has solved this by procedure. Its Federal Constitutional Court sits in two senates of eight justices each. When one senate wishes to depart from the other’s reading, the case must go to the plenary of all 16. The compulsion is codified; the convocation is rare because the rule is clear. India’s Bhagwan doctrine lives on habit, evaded by “distinguishing” and the master of the roster’s discretion. A plenary-style rule – mandatory referral on recorded coordinate-bench conflict, time-bound constitution of the larger bench – would convert Bhagwan’s propriety into procedure. Tasleem Ahmed shows the doctrine working as habit; codification would ensure it works without it.

(The writer is a senior journalist based in the National Capital Region)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.