When the Supreme Court Departs from Itself

1. The earlier decision is clearly erroneous. Not merely doubtful, and not merely a view the present Bench would not have taken. Two reasonably possible views do not justify departure; that was the actual ground on which Keshav Mills declined to interfere.

2. It has a harmful effect on the general interests of the public. Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603, put error and baneful effect together, and the pairing has been followed. Error alone in a matter of no consequence is a weak case for unsettling the law.

3. It concerns the Constitution. Bengal Immunity's additional reason: an erroneous constitutional interpretation may be perpetuated or remain unrectified for a long time, because it cannot be corrected by ordinary legislation. The Court is therefore readier to reconsider constitutional decisions than decisions on ordinary statutes.

4. The earlier decision has not been acted upon, or its reversal will not unsettle transactions. Where titles, contracts and revenues have been arranged on the faith of a rule, the case for leaving it alone is strong even if it was wrong, and the answer where the rule must go is prospective overruling.

5. It conflicts with a later line of authority, or the authorities are in conflict. This is the commonest modern occasion, and it is what produced the reference in Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

Facts. A nine judge Bench was constituted to decide whether the Constitution guarantees a fundamental right to privacy, because two early decisions, M.P. Sharma and Kharak Singh, had said it did not, while later decisions had assumed it did.

Held. Unanimously, M.P. Sharma and Kharak Singh stand overruled to the extent that they held privacy not to be protected, and the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III.

Why it matters here. It is the model of a proper departure: a genuine conflict of authority, a reference to a Bench larger than any of the decisions in issue, express identification of what is overruled and to what extent, and unanimity.

6. Changed social conditions or a changed understanding. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, overruled Suresh Kumar Koushal on section 377, and held that constitutional morality rather than majoritarian morality governs the interpretation of fundamental rights.

7. The earlier decision was given per incuriam or sub silentio. Strictly this is not departure at all, since such a decision did not bind in the first place.

The procedural condition

Departure is not open to any Bench. Under Union of India v. Raghubir Singh, AIR 1989 SC 1933, and Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673, a Bench may not overrule one of larger or equal strength; it refers. So a decision of a five judge Bench can be reconsidered only by seven, and one of seven only by nine. This is why Puttaswamy sat nine and Kesavananda thirteen.

What is NOT a ground

That the present Bench would have decided differently. Keshav Mills is explicit: where both views are reasonably possible, the earlier one stands.

That the decision is old. Age is not error.

That it is unpopular, or that the executive dislikes it. In the NJAC decision the Union asked for the Second and Third Judges cases to be reconsidered, and Supreme Court Advocates-on-Record Association v. Union of India, decided on 16 October 2015, rejected the prayer before turning to the amendment.

Facts. The Constitution (Ninety-ninth Amendment) Act 2014 and the National Judicial Appointments Commission Act 2014 replaced the collegium with a commission of the Chief Justice of India, the two next senior judges, the Union Minister of Law and Justice and two eminent persons, with a veto exercisable by any two members. Both were challenged, and the Union asked for the Second and Third Judges cases to be reconsidered by a larger Bench.

Held. By four to one the prayer for reconsideration was rejected; the Constitution (Ninety-ninth Amendment) Act 2014 was declared unconstitutional and void; the National Judicial Appointments Commission Act 2014 was declared unconstitutional and void; and the collegium system as it existed before the amendment was declared operative. Chelameswar J. dissented.

Why it matters here. It shows the discipline working under pressure. The request to reconsider came from the Union in a matter of the highest political salience and was refused on its own merits before anything else was decided.

A worked example

A three judge Bench in 2026 doubts a 1998 Constitution Bench decision on the interpretation of a tax provision, on the ground that it produces double taxation.

May it depart? No. It is smaller than the Bench that decided.

What must it do? Record its doubt and request that the matter be placed before a larger Bench.

What must the larger Bench find? That the earlier view was clearly erroneous rather than merely one of two reasonable views; that the error has a harmful effect; and, on Keshav Mills, that there is a fair amount of unanimity that revision is justified.

What will it consider against departure? That assessments have been made for twenty eight years on the faith of the decision, so that reopening would unsettle revenue and taxpayers alike. If it departs, prospective operation is the natural course.

Quick revision

1. The power to reconsider is inherent and is not excluded by Article 141.
2. Keshav Mills, AIR 1965 SC 1636: reluctance unless considerations of a substantial and compelling character exist; correct a clearly erroneous decision without hesitation; but require a fair amount of unanimity before pronouncing it plainly erroneous; and no exhaustive principles can be laid down.
3. Recognised circumstances: clear error; harmful public effect; constitutional subject matter; the rule has not been relied on; conflict of authority; changed conditions; per incuriam or sub silentio.
4. Not grounds: mere disagreement, age, unpopularity, or executive displeasure.
5. Procedural condition: only a larger Bench, per Raghubir Singh and Dawoodi Bohra. Puttaswamy sat nine; Kesavananda thirteen.
6. Puttaswamy is the model departure; the NJAC decision shows a request to reconsider refused.
7. Where reliance is heavy, prospective overruling is the natural course.

Test yourself

1. State the Keshav Mills standard. That the power to reconsider is inherent and stare decisis cannot be used to deny it, but the finality of the Court's judgments cannot be ignored, so the Court should be reluctant to revise unless considerations of a substantial and compelling character make it necessary; that a clearly erroneous decision should be corrected without hesitation; that before pronouncing a decision plainly erroneous there must be a fair amount of unanimity among the judges; and that no exhaustive principles can usefully be laid down.

2. Why is the Court readier to reconsider constitutional decisions? Because a mistaken construction of the Constitution cannot be corrected by ordinary legislation, so it may be perpetuated or remain unrectified for a long time to the detriment of the public. Bengal Immunity gives this as a distinct reason, over and above error and harmful effect.

3. A two judge Bench thinks a Constitution Bench decision is wrong. Trace the correct course. It may not depart and may not even express disagreement. It records its doubt and requests the Chief Justice to place the matter before a larger Bench. Reconsideration of a five judge decision requires at least seven, which is why Puttaswamy sat nine to reconsider earlier decisions on privacy.

4. Give one thing that is not a ground for departure, with authority. That the present Bench would have decided differently. Keshav Mills held that where the view contended for and the view earlier taken are both reasonably possible, no case is made out for revision, and on that footing it declined to disturb the New Jahangir Mills and Petlad Co. decisions.