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The verdict of a seven-judge bench prevails over that of a five-judge bench, so goes the rule.

Should that be so even if the five judge bench verdict is unanimous while only four judges of a seven-judge bench pass a different order?

A Supreme Court bench of Justices Rohinton F Nariman and Sanjay K Kaul has said this was a question that needs to be addressed.

The bench was deciding on a batch of taxation cases when this question came up. As pointed out, the case involved two lines of judgments by two benches of the apex court.

“Has the time come to tear the judicial veil and hold that in reality a view of five learned judges cannot be overruled by a view of four learned judges speaking for a bench of seven learned judges? This is a question which needs to be addressed and answered,” observed a bench of Justices Rohinton F Nariman and Sanjay K Kaul.

Article 145(5) of the Constitution envisages majority opinion as the law. But there have been instances when the total number of judges of one view may be larger than the number of judges of another view in the larger bench, as raised in the question at the beginning.

In the instance before the two-judge bench, too, it was discovered that numerically, the views were divided by 9:6 if one went by the number of judges. But since the view taken by six judges included a larger bench, the view held by a total of nine judges would not prevail.

This bench referred to similar issues raised by Justice Madan B Lokur in his separately authored judgment in the National Judicial Appointments Commission (NJAC) case.

Justice Lokur had then questioned whether only the numbers in a subsequent bench are what really matters. He had also cited the dangers of following this rule by pointing out that if this were to hold the field then unanimous opinion by nine judges in the Third Judges Case (that established primacy of the Chief Justice of India in appointing judges) could be conveniently overruled by only six judges in a 11-judge bench.

Justices Nariman and Kaul referred to this “anomalous” situation referred to by Justice Lokur in his 2015 judgment and said that the larger bench should now remove all the incongruities and lay down a principle to guide the judges in future.

Justices Nariman and Kaul have referred the issue to a larger bench and have requested the Chief Justice of India (CJI) Dipak Misra to create an appropriate bench to review the article.

According to the sources, a Constitution bench of five judges will now decide the matter.

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