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CONFLICTING DECISIONS OF CO-ORDINATE BENCHES : PROBLEMS AND SOME SOLUTIONS I Problem of conflicting decisions : causes A FULL Bench of three judges of the Karnataka High Court in Govinda Naikv. West Patent Press Co. Ltd.,1 referred to a larger Bench of five judges the following question: When there is a conflict between two decisions of the Supreme Court, is it the later of the two decisions or the decision of the larger of the Benches which rendered those decisions that should be followed by High Courts and other Courts in the country?1" In Amur Singh Yadav v. Shanta Devi? on a reference by a Division Bench of two judges a Full Bench of three judges formulated one of the issues as follows: When there is a direct conflict between two decisions of the Supreme Court, rendered by co-equal Benches which of them should be followed by the High Courts and the Court below?2" The above two questions raise important and intricate issues, fundamental to a judicial system like that of India which is founded on the common law doctrines of precedent and stare decisis. As the Supreme Court observed in a recent case, "m a precedent bound judicial system binding authorities have got to be respected and the procedure for developing the law has to be one of evolution." 3 While the courts, bound as they are by authoritative precedent, sometimes resort to the device of "distinguishing" the cases so as to circumvent a binding decision, it so happens disconcertingly frequently that co-ordinate Benches of High Courts and of the Supreme Court render decisions which cannot be reconciled with their own earlier ones. In olden days in UK. there was no proper recognised method of reporting cases and sometimes they were quoted from personal notes and diaries of advocates. But now
1. AIR J980 Kant 92. la. Id. at 93. 2. AIR 1987 Pat 191. la. Id. at 197. 3. Sonal v. State of Karnataka, AIR 1987 SC 2359 at 2367 (per Ranganath Misra J.).

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"the growing volume of reported cases often leads to an unavoidable overlooking of relevant authorities.'"4 It has been observed: If there is an increasing tendency to recognise the possibility that previous decisions of the same court may conflict, it is a tendency which is to be applauded, The Court's attention is frequently not drawn to all the relevant authorities, some cases are not particularly well argued and unreserved judgments are often delivered. It is useless to deplore these occurrences because they will continue as long as barristers, judges and litigants remain human.5 It is due to this fallibility of the Bench and the Bar that one often finds the formula statement that a certain binding decision was "not brought to the notice" of the judge and, consequently, conflicting decisions have "come to be of not infrequent occurrence."6 Thus, in Jamuna Rai v. Chandra Dip Rai,7 it was discovered that a 1956 Bench decision of the High Court, not noticing three earlier Bench decisions of the same court, gave a conflicting decision. It was observed that if only the earlier decisions were brought to its notice, its decision might have been otherwise. In Budha Singh v. Laltu Singh,8 the Privy Council came across a Bench decision of the Madras High Court which was rendered without reference to an earlier decision of that High Court to both of which Turner C.J. was a partyt Similarly, in Atma Ram v. State of Punjab,9 two Full Bench decisions of the Punjab High Court conflicting with each other were brought to the notice of the Supreme Court. Bhandari C.J. of the High Court was a party to both, but did not explain in the later decision why he chose to reverse his earlier opinion. Such examples can be multiplied even by a cursory survey of Indian case reports. The above are the cases of conflicting decisions which might have been rendered probably in ignorance of the earlier binding precedents because the later decisions do not contain any discussion of the merits or demerits of the earlier decision or even a reference to it. But there are also cases where the courts knowingly and purposely have gone against the earlier decisions of the co-ordinate Benches for one reason or the other, That the courts, including the apex court, have felt unrestrained to do so even in matters relating to life and liberty of individuals is a matter of grave concern.
4. 299-300 5. 6. 7. 8. 9. R.W.M. Dias, Jurisprudence 194 (4th ed. 1976): C.K, Allen, Law in the Making (6th ed. 1958). Rupert Cross, Precedent in English Law 133 (1977) Supra note 2 at 197 (per Sandhawalia C.J.). AIR 1961 Pat 178. AIR 1915 PC 70. AJR 1959 SC 519.

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In Jagmohan Singh v. State of Uttar Pradesh10 a Constitutional Bench of five judges speaking through Palekar J. unanimously upheld the constitutionality of section 302 of the Indian Penal Code 1861 (IPC) in the face of a comprehensive challenge launched from articles 14, 19 and 21 of the Indian Constitution. But in Rajendra Prasad v. State of Uttar Pradesh11 a split Bench of three judges12 of the Supreme Court, while recognising that the constitutionality of section 302 was "now beyond forensic doubt after Jagmohan Singh",, nevertheless felt that the "precise issue" was "only the canalisation of the sentencing discretion in a competing situation" which was "in critical need of tangible guidelines at once constitutional and functional."13 Though the Constitution Bench in Jagmohan Singh's case clearly held that "the exercise of judicial discretion on well recognised principles is in the final analysis the safest possible safeguard for the accused,"14 the 2:J Bench in Rajendra Prasad's case felt that "well-recognised principles" was merely an "elegant phrase" and held that "incidental observations without concentration on the sentencing criteria are not the ratio of the decision. Judgments are not Bible for every hue to be venerated." 15 Also, the award of death sentence beyond a set category of cases would be unconstitutional. Sen J., dissenting, held that the constitutional questions raised in Rajendra Prasad were already settled in Jagmohan Singh and that it was not open for the court now to read into section 302 new norms laying down of which properly fell within the legislative domain of Parliament.16 Subsequently in Bachan Singh v. State of Punjab,17 a Special Leave Petition came up for hearing before Sarkaria and Kailasam JJ., who felt that the decision in Rajendra Prasad went counter to what was decided in Jagmohan Singh and referred the matter to the Chief Justice for constituting a larger Bench "to resolve the doubts, difficulties and inconsistencies."18 Consequently a five-judge Constitution Bench was constituted which by a 4:1 decision reaffirmed "the view taken by the Court in Jagmohan." 19 Similarly, in Vatheswaran v. State of Tamil Nadu,20 a two-judge Bench of the Supreme Court speaking through Chinnappa.Reddy X, held that a two years' delay in the execution of death sentence without any dilatory tactics on the part of the accused entitled him to claim commutation to life imprisonment. In Sher Singh v. State of Punjab?1 a Bench of three judges
10. AIR 1973 SC 947. 11. AIR 1979 SC 916. 12. The thtec judges were V.R. Krishna Iyer, D,A. Desai (majoiit>) and A,?. Sen (dissenting). 13. Supra note 11 at 920. 14. Supra note 10 at 958. 15. Supra note 11 at 923-24. 16. Id. at 946-47. 17. ArR 1980 SC 898. 18. Id. at 904. 19. Id. at 937. 20. AIR 1983 SC 361. 21. AIR 1983 SC 465,-

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speaking through Chandrachud C.J. agreed with the Vatheswaran decision that inordinate delay in the execution of death sentence justified commutation to life imprisonment but disagreed with the hard and fast rule of two years' delay.22 It is quite possible that Vatheswaran was inspired by the view entertained by some judges of the Supreme Court that death sentence under section 302 was unconstitutional.28 As discussed above, that controversy was laid to rest by Bachan Singh's case. Perhaps Chandrachud C.J., had this in mind when he commented in Sher Singh's case as follows: Death sentence is constitutionally valid and permissible within the constraints of the rule in Bachan Singh... This has to be accepted as the law of the land. We do not, all of us, share the views of every one of us. And that is natural because every one of us has his own philosophy of law and life, moulded and conditioned by his own assessment of the performance and potentials of law and the garnered experiences of life. But the decisions rendered by this Court after a full debate have to be accepted without mental reservations until they are set aside.24 Nevertheless, in Javed Ahmed v. State of Maharashtra?* a two-judge Bench of the Supreme Court again speaking through Chinnappa Reddy J., chose to ignore Sher Singh's decision and follow its own earlier decision in Vatheswaran and commuted the death sentence on the ground that it was hanging on the convict's head for two years and nine months. Chinnappa Reddy J. observed: The case also raises the further question whether a Division Bench of three judges can purport to overrule the judgement of a Division Bench of two judges merely because three is larger than two. The Court sits in Divisions of two or three judges for the sake of convenience and it may be inappropriate for a Division Bench of three judges to purport to overrule the decision of a Division Bench of two judges. Vide Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All E.R. 293. It may be otherwise where a Full Bench or a Constitution Bench does so.26
22. Id. at 470-72. 23. See particularly Knshna Iyer and Desai, J J. in Rajendia Prasad, supia note II, and Krishna Iyer and Chinnappa Reddy, JJ., in Bishnu Deo Shaw v. State of West Bengal, AIR 1979 SC 964. It may be noted that Chinnappa Reddy J. delivered the judgment in Vatheswaran's case. 24. Supra note 21 at 469. 25. AIR 1985 SC 231. 26. Id. at 236. Under art. 145, cl. 3 of the Constitution "Constitution Bench should consist of a minimum of five Judges." In the Supreme Court, a Full Bench also consists of a minimum of five judges.

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It is quite possible that the learned Chief Justice who delivered the judgment for the three-judge Bench in Sher Singh's case might have thought that this Bench carried greater weight than the two-judge Bench in Vatheswaran'h case. But the two-judge Bench n Javed Ahmed's case obviously stuck to the earlier decision in Vatheswaran on the ground that a three-judge Bench could not overrule a two-judge Bench because both are Division Benches only.27 The only outcome of this clash of decisional attitudes and judicial idiosyncracies28 even at the apex level is that though article 141 of the Indian Constitution proclaims that "the law declared by the Supreme Court shall be binding on all lower courts within the territory of India/' the Supreme Court appears to be speaking in more than one voice in a stereophonic style on vital issues of law leaving the amazed and astounded lower courts, the lawyers and the lay citizens wondering what "the law declared by the Supreme Court" is. II Conflicting decisions and English courts There are many instances in UK where co-ordinate Benches of the Court of Appeal, Court of Criminal Appeal and Divisional Court have given decisions inconsistent with each other. As Winder observes: When precedents of a kind which are normally binding on the Court are in conflict with one another, the obligation on the Court, if any, is uncertain, although the problem is not a new one.29 The locus classicus on the subject is Young v. Bristol Aeroplane Co. Ltd.ZQ In this case, while reiterating the general rule that the Court of A.ppea1 was bound by its own earlier decisions, Lord Greene M.R. propounded three exceptions to the rule. He said: (a) The Court ;s entitled and bound to decide which of two conflicting decisions of its own it will follow, (b) The Court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a
27. Saved Ahmed was overruled by the Supreme Court recently in Triveniben's case, infra note 60. 28 An extreme example of these judicial observations is the view of Raju J. of the Gujarat High Court that he was not obliged to follow binding precedents because by doing so he would be acting contrary to s. 165 of the Evidence Act (which enjoined that judgment should be based on relevant facts) and to the oath of office. For a detailed account of his views and for their refutation, see Tribhuvandas v. Ratilal, AIR 1968 SC 372; and Dhanki Mahajan v. Rama Chandubha, AIR 1969 SC 69. See for a discussion on this, H.M. Seervai, Constitutional Law of India ; A Critical Commentary, vol. 2, p. 2247 (3rd ed. 1984). 29. W.H.D. Winder, "Divisional Court Precedents", 9 Mod. L. Rev. 270 (1949). 30. [1944] 1 KB 718 (CA).

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decision of the House of Lords, (c) The Court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam?1 We are here concerned only with the first exception stated above, i.e., "the Court is entitled and bound to decide which of the two conflicting decisions of its own it will follow". The freedom of choice between conflicting decisions allowed to the Court of Appeal in Young will also extend to lower courts because "when the authorities of equal standing are irreconcilably in conflict, a lower court has the same freedom to pick and choose between them as the schizophrenic court itself."32 The view that a court has complete freedom of choice33 in following what it considers to be the 'better* of the two conflicting decisions has the support of judicial dicta even earlier to Young's decision. Thus, in Hampton v. Holman?* Jessel M.R. stated: Now I take it that both the ca^es to which I have referred are not to be reconciled with Hayes v. Hayes (1828)38 F.R. 822, at all events. They differ from it so far as to leave me at liberty now to say that Hayes v. Hayes is not sound law.34a Kay J. made a similar observation in Miles v. Jarvis:35 The question is which of these two decisions I should follow, and,
31. Id. at 729. For a discussion on this case, see A.W.B. Simpson, "The Ratio Decidendi of a Case and the Doctrine of Binding Precedent", in A.G. Guest (ed.), Ozfouf Essays in Jurisprudence : A Collaboration Work 148-175 (1961); W.H.D. Winder, "Conflicting Precedents", 56 Law Q. Rev. 457-59; A.L. Goodhart, "Precedents in the Couxt of Appeal", Camb. L. J. 349-365 (1947); R.N. Gooderson, "The Rule in Young v. Bristol Aeroplane Co. Ltd.," 10 Camb. L. J. 432-449 (1948-50); "Stare Decisis in the Court of Appeal", 19 Mod. L. Rev. 136-149 (1956); P.G. Fitzgerald (ed.), Salmond's Jurisprudence 151 (12th ed. 1966); Rupert Cross, supra note 5 at 136. C.K. Allen, supra note 4 at 2 ^ 32. Salmond, id. at 153. 33. The exception in Young, supra note 30, has come in for praise as well as criticism C.K. Allen commends it as being "opportune in relaxing the bounds of precedent when they threaten to stop the circulation of the law's lifeblood". (Supra note 4 at 237). Lord Denning also felt that the freedom of choice granted by Young was to be preferred to the endless task of distinguishing the indistinguishables and reconciling the irreconciliable. See, W.&J.B. Eastwood Ltd. v. Harrod (Valuation) Officer, (1968) 2 QB 923 at 934. On the other hand, the critics of Young point out that by grafting exceptions on the genei at rule of binding nature of the earlier precedents, the Court of Appeal has introduced or accentuated the element of uncertainty in case law. Thus A.L. Goodhart observed: "An absolute rule concerning precedent authority has at least the virtue of certainty; a semiabsolute precedent has no more virtue than a semi-fresh egg". (Supra note 31 at 357). 34. (1877) 5 Ch D. 183. Jessel M.R. expressed the same view in Baker v. White, LR 20 Eq 166 at 170. 34a. Id. at 190. 35. (1883) 24 ChD 633.

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it seems to me that I ought to follow that of the Master of the Rolls as being the better in point of law.36" Discussing the raison d'etre of this exception, Salmond observes : Whenever a relevant prior decision is not cited before the court, or mentioned in the judgment, it might be assumed that the court acts in ignorance or forgetfulness of it. If the new decision is in conflict with the old, it is given per incuriam and is not binding on the later court.36 However, he proceeds to state: Although the later Court is not bound by the decision so given per incuriam, this does not mean that it is bound by the first case. Perhaps in strict logic the first case should be binding since it should never have been departed from, and was only departed from per incuriam. However, this is not the rule. The rule is that where there are previous inconsistent decisions of its own, the Court is free to follow either.37 An important question that requires careful consideration is whether freedom to choose the better of the two conflicting decisions would apply only when the later decision was rendered in ignorance of the earlier one or even in complete cognisance of it. In Young's case, Lord Greene M.R. said that the freedom of choice would apply "where the court has acted in ignorance of a previous decision of its own or of a Court of coordinate jurisdiction which covers the case before it".38 But in Fisher v. Ruislip Northwood U.D.C.,*9 the court appears to have invoked freedom of choice even when the later decision has noticed the earlier one and differed from it. In this regard Goodhart observes : There is something to be said against each of these views because the difficulty with the Young exception is that we can never be certain whether the previous decision has been cited to the Court unless the report of the case is a detailed one, while the difficulty with the Fisher doctrine is that it weakens the certainty which the main rule purports to give us.40 But where it is clear from the later decision that it has not only noticed
35a. Id. at 635. 36. Salmond, supra note 31 at 152. 37. Id. at 152-53. See also Winder, supra note 31 at 458; and Rupert Cross, supra note 5 at 137-38. 38. Young v.Biistol Aeroplane Ltd., supra note 30 at 724. (Emphasis added). 39. (1945) 1 KB 584. 40. A.L. Goodhart, supra note 31 at 357. The main rule that he refers to is the rule that the court should follow the earlier binding precedent.

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the earlier one but has thoroughly discussed the issues involved therein, can it be said that a third court must lean in favour of the later decision ? Lord Denning M.R. gave an affirmative answer to this question, in Minister of Pensions v. Higham.41 In the recent case of Colchester Estate (Cardiff) v. Carlton Industries P/c,42 Nourse J. discussed the above issue at length. He observed: On this state of authorities both counsel for the plaintiff and counsel for the defendant submitted that the existence of two conflicting decisions of judges of coordinate jurisdiction meant that 1 was entirely free to choose between them and should not start with any preference for one over the other. While I readily accepted that that would be the position where the second decision was given, for example, in ignorance of the first, I was troubled at the suggestion that it would necessarily be the same when the second was given after full consideration of the first.43 Further he proceeded to state: There must come a time when a point is normally to be treated as having been settled at first instance. I think that, that should be when the earlier decision has been considered, but not followed, in a later one.44 Having said the above in such categorical terms, he added a rider: Consistently with the modern approach of the judges of this Court to an earlier decision of one of their number.... I would make an exception only in the case, which must be rare, when the third judge is convinced that the second was wrong in not following the first.45 It is respectfully submitted, that the above 'exception' puts the whole matter back in square number one, i.e., Young's first exception. It is difficult to be persuaded by the argument that in the case B the court has the freedom to 'fully consider' the case A and differ from it but that in the case C the court should not, except in a 'rare' case, have the freedom to fully consider the cases A and B and agree with A and disagree with B. Are not the
41. (.1948)1 All ER 863. 42. (1984) 2 All ER 601 (Ch D). 43. Id. at 604. In Watts v. Rees, (1954) 9 Ex 697 at 700, it was observed; "1 should have felt myself bound by the last authority upon the question of a court of coordinate jurisdictions, if the previous one had been adverted to and had been deliberately overruled9* ((Emphasis added). But, again, overruling raises the question of hierarchy of jursidiction. 44. Id. at 604-605. 45. Id, at 605.

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interests of certainty better served if the courts adhere to the absolute rule that they should necessarily follow the earlier precedents whatever be their own inclinations and let the losing party vindicate his position in appeal ? Will it not be the case a fortiori when the court in the case B is acting in full cognisance of the case A than in ignorance of it? If the third, fourth or fifth cases ought not to review the second case as Nourse J. argues, why should the second case have the privilege of 'fully considering' and disagreeing with the first case? While ignoring a binding precedent is certainly not a virtue, intentionally departing from it would certainly be a vice in the existing system based on the doctrines of precedent and stare decisis. Hence, there is no escape from the conclusion arrived at by Goodersen that, under Young's rules "the Court is entitled and bound to decide which of the two conflicting decisions of its own it will follow, whether the second decision was reached in ignorance of the first, or the second decision was discussed and distinguished in the second".46 IV Conflicting decisions and Indian courts On numerous occasions the Indian courts have expressed serious concern about the practice of some courts of rendering judgments which conflict with the decisions of co-equal and co-ordinate courts.47 Venkatarama Iyer J. observed: 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.48 In Seshamma v. Narasimha Rao*9 Leach CJ., said that if Benches of the same High Court were to render conflicting decisions "the Courts subordinate to the High Court are left without guidance."49" He pointed out in another case:50 A judge has, of course, always the right of expressing his own opinion and indicating that he is not in agreement with an authority binding on him, but he is nevertheless duty bound to follow it...the fact that a Judge thinks that some argument has been overlooked in a judgement binding on him is no reason for refusing to follow it.507
46. R.N. Gooderson, supra note 31 at 444. 47. See, Subbarayudu v. State of Andhra, 1955 Andhra Law Times 53 (FB). 48. Jaisri v. Rajdewan, AIR 1962 SC 83 at 88. 49. 1LR 1940 Mad 454. 49a. Id. at 474. 50. Manilal v. Venkatacludapadii, ILR 1944 Mad 95. 50a. Id. at 97.

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The case reports abound in expressions of similar feelings of dissatisfaction with and condemnation of the "strange"61 and "disquieting"62 attitudes of some judges to "embark upon enquiry"63 of merits of earlier binding precedents and to proceed to give vent to their disagreement through conflicting decisions.64 But as pointed out earlier, even judges of the Supreme Court are also not entirely free from this practice of crossing judicial swords and rendering divergent decisions. V Possible solutions Faced with the problem of conflicting precedents, courts in India have suggested various solutions to avoid the embarassing situations arising out of such conflict. (1) Avoidance of conflict by reference to larger Bench Of course, the best solution is to totally avert the possibility of such conflict and it is said that a judge or Bench disagreeing with an earlier precedent should, instead of proceeding to render a recalcitrant decision, refer the matter to the Division Bench or to the Chief Justice for constituting a Full Bench or Special Bench, as the case may be. This is said to be "the only judicial alternative,"66 and "the proper and traditional way to deal with such matters," which "is founded on healthy principles of judicial decorum and propriety."66 This is also said to be "the uniform practice in all the High Courts in India" and "in Calcutta High Court a rule to this effect has been in existence shice 1867."57 Explaining the proper procedure to be followed where a judge or Bench is not in agreement with an earlier precedent, Subba Rao J. (as he then was) observed: A single judge is bound by a decision of a Divisional Bench exercising appellate jurisdiction. If there is a conflict of Bench decisions he should refer the case to a Bench of two judges who may refer it to a full Bench. A Divisional Bench must ordinarily respect another Divisional Bench of co-ordinate jurisdiction; but if it differs the case should be referred to a Full Bench. This
51. Sri Venkateswara Rice, Ginniny and Groundnut Oil Mill Contractors Co. v State of Andhra Piadesh, AIR 1972 SC 51. 52. Eknath v State of Maharashtia, AIR 1977 SC 1177 at 1181. 53. Bhagwan v. Rmnchand, AIR 1965 SC 1767 at 1773. 54. Union of India v. Godfrey Phillips India Ltd., AIR 1986 SC 806 at 815, pei Bhagwati C.J. who was in minority but with whom the majority were in agreement on this issue. 55. Eknath, supra note 52 at 1182. 56. Bhagwan, supra note 53 at 1772. 57. Mahadevlalv. Administrator General, West Bengal, AIR 1960 SC 936 at 941; see also, Billunoiia v. Centtal Bank of India, AIR 1943 Nag 340 at 343

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procedure would avoid unnecessary conflict and confusion that otherwise would prevail.58 The above approach has been commended and recommended in a number of decisions of the High Courts and Supreme Court.59 In fact, order VII, rule 2 of the Supreme Court Rules of Procedure 1966 provides: Where in the course of the hearing of any cause, appeal or other proceeding, the bench considers that the matter should be dealt with by a larger bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a bench for the hearing of it. The above rule can be interpreted to mean that where a Bench is faced with two or more conflicting decisions of co-ordinate Benches, it shall refer the case to the Chief Justice for constituting a larger Bench for resolving the conflict. The rule may even be taken to mean that where a bench is inclined to disagree with a binding decision of a co-ordinate Bench, it should, instead of proceeding to render a different decision, refer the case to the Chief Justice for constituting a larger Bench. The latter course would avoid the alternative of the Bench following the earlier decision in spite of its own inclinations and forcing the litigant to appeal at considerable expense of money and time. But in Triveniben v. State of Gujarat*0 the Supreme Court Interpreted the provision in a different way and observed: This is undoubtedly a salutory Rule, but it appears to have only a limited operation. It apparently governs the procedure of a smaller bench when it disagrees with the decision of a larger bench.60" That a smaller Bench could tend to disagree with a larger Bench and ask the Chief Justice to constitute a still larger Bench is indeed a strange and untenable proposition particularly in the light of Triveniben*s own holding that a larger Bench of three judges could overrule a smaller Bench of two. In this context one has to keep in mind two different situations: first, where a court is referred to a precedent of a co-ordinate court with which it is inclined to disagree; and, second, where it is referred to two or more conflicting precedents of co-ordinate or superior Benches or courts.
58. K.C Nambiar v. State oj Madras, AIR 1983 Mad 351 at 354; see also, Subbarayudu, supra note 47 at 64. 59. See for instance, Mahadeo v. Jagannath, AIR 1934 Pat 173; Emperor v. Naga Lun Thoung, AIR 1935 Rang 370; Indian Extractions Private Ltd. v. Vyas, AIR (961 Guj 22; Alekha Mantri v. Jagabandhu, AIR 1971 Ori 127; Eknath, supra note 52; Union of India v. Godfrey Phillips India Ltd., supra note 54. 60. ATR 1989 SC 1335. 60a. Id. at 1350. (Emphasis added).

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Should the remedy of reference to a larger Bench be prescribed in situations? Seervai pertinently observes: It is submitted that the Supreme Court has failed to distinguish between two distinct situations and has prescribed a remedy which is inappropriate for the first situation, but is appropriate for the second, if the theory underlying precedents is to be made effective, namely, that the law should be certain., the rule prescribed by the Supreme Court for resolving the conflict created by different judgements of co-ordinate courts is to be preferred to the rule laid down in the Bristol Aeroplane Case since the latter rule is likely to raise further conflict instead of resolving it.606

both

While fully agreeing with the view of Seervai that the remedy of reference to a larger Bench is inapplicable to the first situation but appropriate to the second one wherein the court is faced with two conflicting decisions of co-ordinate Benches, it is submitted, that the freedom of choice principle propounded in Bristol Aeroplane case is still operative with regard to the other part of the second situation, i.e., where the court is confronted with conflicting decisions of a superior court. This may arise in India when a subordinate court is referred to conflicting decisions of High Courts or the Supreme Court, or when a High Court is faced with inconsistent decisions of the Supreme Court. In such a situation, the subordinate court or the High Court, as the case may be, has to prefer and follow the decisions which appear to that court to be 'better'. This alternative is dealt with later.600 In spite of judicial exhortations to the contrary, co-ordinate courts have differed with each other for various reasons mentioned earlier. Then, what are the options open to a court to resolve the problems of conflicting decisions? (2) Follow the larger Bench It is sometimes suggested that where there is a conflict between two decisions, one rendered by a smaller Bench and the other by a larger Bench, the court should follow the decision of the latter whether earlier or later. This view draws support from the observations of Bhagwati J. (as he then was) in Muttulal v. Radhelal91 wherein he stated:

60b. H.M. Seervai, supra note 28 at 2245-47. 60c. See infra at 63. 61. AIR 1974 SC 1595. Sarwate v. Namechand, (1966) MPLJ 26 was decided by a Bench of four judges and Kamala Som v. Ruplah ATR 1969 SC 486 by a Bench of truce judges The judgments were delivered by Shah J in both the cases.

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[I]t is not possible to reconcile the observation in these two decisions. That being so, we must prefer to follow the decision in Sarvate T.B's case as against Kamala Soni's case as the former is a decision of a larger Bench than the latter.ua In Union of India v. Subrahmanyam,^ the Supreme Court reiterated the view expressed in Muttulal and held that "the practice has now crystallised into a rule of law declared by that Court,"6*1 It must, however, be pointed out that m Muttulal Bhagwati J. proceeded to buttress his preference for the larger Bench decision in Sarvate's case with this observation: "Moreover, on principle, the view taken in Sarvate T.B's case commends itself to us and we think that is the right view."63 Some High Courts64 have followed the observations of the learned judge preferring the larger Bench as the principal view without making much of his other observation that the view of the larger Bench also commended itself as "the right view". On the other hand, speaking of MuttulaVs decision, Seervai opines: It is submitted that the reference to a larger bench is not correct. The court itself seemed to recognise this, for it rests its decision on preferring the reasoning of the earlier decision to that of the later decision.65 But now, the question whether a larger Bench can overrule a smaller Bench seems to have been finally settled by two recent emphatic pronouncements of the Supreme Court. In Antulay v. Nayak,** speaking for a sevenjudge Bench, Sabyasachi Mukharji referred to Bristol Aeroplane and Javed Ahmed cases and observed: The law laid down by this Court is somewhat different. There is a hierarchy within the Court itself here where larger Benches overrule smaller Benches....This is the practice followed by this Court and now it is a crystallised rule of law.67 In Triveniben v. State of Gujarat,68 a five-judge Bench referred to order VII, rule 2 of the Supreme Court Rules of Procedure 1966 which provides that where a Bench, "considers that the matter should be dealt
61 a. Id. at 1602. 62. AIR 1976 SC 2433. 62a. Id. at 2437. 63. Muttulal, supra note 61 at 1602. 64. See, for instance, Govinda Naik, supra note 1, where both the majority and minority were agreed on this view of MuttulaVs case. 65. Seervai, supra note 28 at 2243. A similar view was also expressed by Sandhawalia C.J. in Amar Singh Yadav v. Shanta Devi, supra note 2 at 208-9. 66. ATR 1988 SC 1531. 67. Id. at 1548. 68. Supra note 60,

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with by a larger Bench, it shall refer the matter to the Chief Justice who shall thereupon constitute such a bench," and observed: This is undoubtedly a salutory Rule but it appears to have only a limited operation. It apparently governs the procedure of a smaller bench when it disagrees with the decision of a larger bench. But this exercise seem& to be unnecessary when a larger bench considers that a decision of smaller bench is incorrect unless a constitutional question arises. The practice over the years has been that a larger bench straightaway considers the correctness of and if necessary overrules in view of a smaller bench.6ft The court further pointed out: The answer to the question posed in Javed Ahmed's case thus stands concluded and it is now not open to any one to contend that a bench of two judges cannot be overruled by a bench of three judges. He must regard this as a final seal to the controversy.70 This position of law will perhaps hold good not only when the later larger Bench decision has considered the correctness of the earlier decision and overruled it, but also when the former has been rendered in ignorance of the latter. (3) Follow the earlier Bench It is sometimes said that in case of conflict of decisions rendered by co-ordinate courts, the earlier decision should be followed because the later one is rendered per incuriam as it ought to have followed the earlier binding precedent.71 The practice of following the earlier of the conflicting decisions appears to have been adhered to by the Patna High Court for some time.72 Though occasional support to it may be ferreted in other jurisdictions as well,73 it must be said that this view does not find much favour in a majority of judicial decisions and juristic writings.

69. Id. at 1350. 70. Ibid See the text relating to supra note 27. 71. See, Salmond, supra note 31 at 152-53. 72. See, Shashi Bhushan Raj v. Bhuvaneswari Rai, AIR 1955 Pat 124, Jamuna Rat v. Chandra Dip Rai, supra note 7 and Jaisri v. Rajdewan, supra note 48. Jamuna Ra's case was expressly overruled in Amar Singh Yadav, supra note 2 which adopted the view that the better of the decisions must be followed. 73. See, for instance, Bagale Sundari v. Prasanna Nath, AIR 1917 Cal 668 at 669.

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(4) Follow the later decision The main argument in favour of the opinion that the later of the conflicting decisions must be followed is that the later decision represents the latest thinking on the subject74 and the earlier one must be deemed to have been overruled.75 Some of the decisions of the High Courts of Allahabad,76 Bombay,77 Calcutta,78 Gujarat,79 and Karnataka 80 have lent support to this view. It must, however, be pointed out that sometimes decisions are rendered without even referring to the earlier precedents or without adequate discussion of the issues involved in those precedents. In such cases, it is difficult to say with certainty whether the court has applied its mind comprehensively and whether the earlier decisions should be taken as having been overruled. As was already discussed,81 it was held in some English decisions that when the later decision was given in ignorance of the earlier decision, the lower court might choose to follow the decision that appeared to be sound whether it was the earlier or the later, but where the later decision took note of the earlier decision and differed from it after a thorough discussion of the issues, then, the lower court should follow the later decision. But, this raises further questions. What will be the position if both the cases thoroughly discuss the legal issues and arrive at opposite conclusions? Why should any special sanctity be attached to the later decision just for the reason that it contains what it should contain after all, i.e., a discussion of all the pertinent issues? (5) Follow the better decision Another solution that seems to be gaining ground is that a court faced with two or more conflicting precedents should have the freedom to choose and follow the better or the best of those precedents. As has been pointed out earlier, this was the" solution that the UK Court of Appeal proposed in Young v. Bristol Aeroplane Co. Ltd.82 and that the Chancery Division reiterated in Colchester Estates (Cardiff) v. Carlton Industries.83
74. See Watts v. Rees, supra note 43. See also, John Salmond, supra note 31 at 152; Goodhart, id. at 339. But it may be argued that the opposite view contributes to certainty while it also strengthens the doctrine of precedent. See, R.N. Gooderson, id. at 432. See also the minority opinion in Govinda Naik, supra note 1 at 95. 75. Rupert Cross, supia note, 5 at 137. 16. U.P.S.R.T.C. v. State Road Transport Tribunal, V.P. Lucknow, AIR 1977 All 1 (FB) and Gopalakrishna v. 5th Addl Dist. Judge, Kanpur, AIR 1981 All 300 (FB). 77. Vasant Tatoha Hargude v. Dikkayya, AIR 1980 Bom 341. 78. Sovachand Mulchand v. Collector of Central Excise and Land Customs, AIR 1968 Cal 174. 79. Gujarat Housing Board, Ahmedabad v. Nagaji Bhai, AIR 1986 Guj 81. 80. New Krishna Bhavan v. C.T.C., AIR 1961 Mys 7; Govinda Naik, supra note 1 Yaragatti v. Vasant, AIR 1987 Kant 186 (FB). 81. See above the text pertaining to supra note 43. 82. Supra note 30. 83. (1984) 2 All ER 601.

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The Indian courts also have lent their support to this view in a number of decisions.84 In Veerayya v. Venkata Subbayya85 Umamaheswaram J. observed: [W]hen there is a conflict between two Bench decisions of the Madras High Court, it is open to me...to prefer and follow the Bench decision which is in accordance with justice and legal principles.86 In Atma Ram v. State of Punjab87 B.P. Sinha J. (as he then was) speaking for a five-judge Bench of the Supreme Court pointed out that in case one Full Bench was inclined to disagree with another one of equal strength, it should refer the matter to a larger Bench. He stated: 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 them.88 The above observation strongly implies that where two conflicting decisions are already in existence the lower court can exercise the freedom of choice.89 We have already noted above the observations of Bhagwati J. in Muttulal v. Radhelal90 that he preferred to follow a particular decision against another because the former was rendered by a larger Bench and because it "commended itself" as the "better view". These remarks were also taken as supporting the freedom of choice of the lower court.91 In that case, Bhagwati, J. was faced with conflicting decisions of Benches of unequal strength. But when confronted with two decisions of equal Benches of two judges each in Union of India v. Godfrey Phillips India Ltd.?% Bhagwati C J . was very clear in his mind about the option open to him. The learned Chief Justice pointed out: We have carefully considered both the decisions in Motilal Sugar Mills case and Jeet Ram's case and we are clearly of the
84. See for instance, Bilhmoiia v. Central Bank of India, Bombay, ArR 1943 Nag 340; Virayya v. Venkata Subbayya, AIR 1955 AP 215; Atma Ram, supia note 9; Bholanath v. Madanmohan, AIR 1988 Cal 1; Special Land Acquisition Officet (I) Bombay v. Gt eater Bombay Municipal Corpoiation, AIR 1988 Bom 9 85 Ibid 86 Id at 217 87. Supia note 9 88 Id at 527. 89. That is how trie Calcutta High Couit has implied in Bholanath. supia note 84 at 6. 90. See above the text pertaining to supra notes 62-64. 91. See the observations of Sandhawaha C.J. in Amai Singh Yadax. supia note 2 at 199. 92. Supra note 54,

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view that what has been laid down in Motilal Sugar Mills case represents the correct law in regard to the doctrine of promissory estoppel and we express our disagreement with the observations in Jeet Ram's case to the extent that they conflict with the statement of law in Motilal Sugar Mills Case....93 An articulate and ardent champion of the freedom of choice approach in India is Sandhawalia C.J., of the Punjab and Haryana High Court initially and, later of the Patna High Court, who has expounded his view in a series of decisions.94 In the most recent one, he observed: A choice, however difficult it may be has to be made in such a situation and the date cannot be the guide. However, on principle, it appears to me that the High Court must in this context follow the judgement which would appear to lay down the law more elaborately and accurately. The mere incidence of time, whether the judgements of co-equal Benches of the superior Court are earlier or later, and whether the later one missed consideration of the earlier, are matters which appear to me as hardly relevant, and in any case, not conclusive.95 Would not the freedom of choice approach place subordinate courts in the unenviable and embarassing situation of sitting in judgment over two conflicting pronouncements of superior courts including those of the Supreme Court, in picking and choosing the judgment that appears to lay down the law "accurately"? In following one decision in preference to another, does not the lower court seem to arrogate to itself the powers of an appellate court of overruling one decision and affirming the other? Responding to this dilemma, Sandhawalia C.J. stated: Obviously, in such a situation, it is not the province of the High Court or the Subordinate Court to comment on the judgement of the Supreme Court, which are patently entitled to respect. Its plain duty in the interest of justice, is to respectfully follow that which appears to state the law accurately or, in any case more accurately than the other conflicting judgement.96
93. Id. at 815. Bhagwati C.J. was speaking for the minority in that case, but on this particular issue the majority agreed with him. See, id. at 817. 94. See for instance, Indo-Swiss Time Ltd. v. Umarao, AIR 1981 P&H 213 (Sandhawalia C.J., was in minority on the merits of this case but the majority agreed with him on the question of freedom of choice); Kulbhushan Kumar & Co. v State of Punjab, AIR 1984 P&H 55; Amur Singh Yadav, supra note 2. 95. Amur Singh Yadav, id. at 197-98. 96. Id. at 200. After all rhe "schizophrenic" (Salmond, supra note 31 at 153) superior court laid itself open to the eventuality of a lower court sitting in judgemen* over its decisions conflicting with each other. The views of Sandhawalia CJ. are echoed by Bhattacharjee J. in the recent Calcutta case otBholanath, supra note 84 at 5, wherein the learned judge finds support for his opinions in the ancient Hindu texts also.

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Thus, however delicate and difficult the task of the lower court may appear to be, there seems to be no rational alternative to that approach. It must, however, be conceded that choosing the better decision may not be all that easy and a certain amount of subjectivity may creep in. In fact, different High Courts or even different judges of the same High Court may, while agreeing in principle on freedom of choice, arrive at opposite conclusions as to which of the two decisions of the Supreme Court is 'better'. Then, we will be faced with conflicting decisions regarding conflicting decisions! Such a situation is certainly not in the realm of unreality. Thus, in Indo-Swiss Time Ltd. v. Umarao97 all the three judges of the Full Bench of Punjab High Court were agreed on the principle that the High Court was free to choose between two conflicting decisions rendered by the Supreme Court in Himalaya Tiles & Marbles (Pvt) Lta. v. Coutinho*8 and Municipal Corporation of the City of Ahmedabad v. Chandulal** but while the majority thought that the Municipal Corporation decision was better, the minority preferred the Himalaya Tiles pronouncement. Again in Amar Singh Yadav v. Shanta Devi,100 when the Patna High Court was confronted with the same points of law and the very same conflicting Supreme Court decisions as in the Indo-Swiss case, the Patna High Court unlike the Punjab High Court, preferred the Himalaya Tiles decision as against the Municipal Corporation decision. While disagreement between the judges of a Bench as to which of the conflicting decisions is better is inevitable, similar disagreement between different High Courts as to conflicting Supreme Court decisions can be resolved only by the Supreme Court by either overruling one of its earlier conflicting decisions and affirming the other or even by overruling both and proposing a tertium quid. VI Conclusion It is clear from the foregoing that the problem of conflicting decisions is not just an academic exercise but a practical dilemma which courts following the common law system have to face. The following solutions emerge out of the discussion. (/) When a judge or a Bench is referred to a decision of a co-ordinate court with which the former is inclined to disagree, the judge or the Bench should not proceed to pronounce a conflicting decision. The Supreme Court and many High Courts have suggested that in such a case the judge or the Bench should refer the matter to the Chief Justice for constituting a larger Bench so that the issues may be settled finally and authoritatively.
97. Supra note 94. 98. AIR 1980 SC 99. 1970-1 SCWR 100. Supra note 2. Himalaya Tiles decision case.

1118. 183. It is interesting to note that Sandhawalia C.J., who pieferred was in minority in the Punjab case but in unanimity in the Patna

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iii) Where there are conflicting decisions of co-ordinate Benches of unequal strength, the Supreme Court has laid down that the courts should follow the larger of the Benches whether it is earlier or later. (iii) Hence, where the conflict is between two Benches of the same High Court, a judge or Bench of that High Court should not exercise the freedom of choice but refer the case to a larger Bench capable of resolving the conflict by overruling the wrong decision. The same principle should apply in the case of conflicting decisions of the Supreme Court quoted before a judge or Bench of the Supreme Court. O'v) Where conflicting decisions of the Supreme Court are quoted before a High Court, or of the High Court before a subordinate court, the court concerned should have the freedom to choose and follow the decision which appears to state the law accurately or more accurately. The freedom of choice principle propounded in England in Young's case should be confined inlndia only to this category of cases. (v) Freedom of choice should apply irrespective of whether the later decision was rendered in ignorance of the earlier decision or in cognisance of it. V. Nageswara Rao*

* LL.M, Ph.D., University, Hyderabad.

Professor,

Post Graduate College

of

Law,

Osmania