Precedential Certainty / The Revival of Ray LXVI

Time fleets, generations grow, society changes, values and needs also change by time. There can be no denial, law should change with changing time and changing needs of society.

Famous words of Justice Oliver Wendell Holmes Jr. in Towne v. Eisner, 245 US 425 (1918): “Word is not a crystal, transparent and unchanged; it is a skin of living thought and may vary greatly in colour and content according to circumstances and time in which it is used.”


Constitution Bench in Rajnarain Singh v. Chairman, Patna Administration Committee, AIR 1954 SC 569 had occasion to find out Majority Opinion of Seven-Judge Bench In Re: The Delhi Laws Act, 1912, AIR 1951 SC 332. Constitution Bench laid down, ‘greatest common measure of agreement’ is to be accepted as Court Decision.


Super Majority [5-0] cannot be construed as per se a strong or compelling reason to doubt Narrow Majority [4-3] of a Larger Bench. Otherwise, there would be lack of clarity in ‘precedential certainty’.


Mukul Rohatgi, Learned Senior Counsel, could not furnish any ground to Refer Nine-Judge Constitution Bench Indra Sawhney v. Union of India, [1992 Suppl. (3) SCC 217] to a Larger Bench.

5-Judges, Dr. Jaishri Laxmanrao Patil v. Chief Minister, [Civil Appeal 3123 of 2020].


It is settled, Majority Decision of a Bench of Larger Strength, irrespective of number of Judges constituting Majority, would prevail over a Bench of Lesser Strength Decision.

Bench Strength is determinative.

5-Judges, M/s. Trimurthi Fragrances Pvt. Ltd. v. Govt. of NCT of Delhi, [Civil Appeal No. 8486 of 2011] decided on 19.09.2022.