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Supreme Court Larger Bench Rule: When a 3-Judge Bench Recalls a 2-Judge Bench – India’s Unresolved Doctrine on Co-Equal Bench Powers
Introduction
Few questions in Indian constitutional procedure are as persistently contested yet practically consequential as this: what exactly can a bench of three judges do to a judgment delivered by a bench of two? On the surface, the answer seems obvious — a larger bench outranks a smaller one, and the hierarchy of judicial composition is settled. But the reality of how India’s Supreme Court actually operates shows that this clarity is more nuanced. The Court sits divided into benches of varying sizes — two judges, three judges, five judges, and larger constitution benches — and the rules governing how these benches interact with each other’s judgments are shaped by both convention and evolving practice. This is the core principle behind the Supreme Court Larger Bench Rule, which guides when one bench may revisit or correct the decision of another.
The subject gained fresh urgency in November 2025 when a three-judge bench of the Supreme Court recalled a judgment delivered just months earlier by a two-judge bench in Vanashakti v. Union of India, 2025 SCC OnLine SC 1139. The recall was granted by a 2:1 majority on the ground that the two-judge bench had rendered its judgment per incuriam — that is, without adverting to or following a series of coordinate bench precedents that had taken a different view on the same question of law [1]. The incoming Chief Justice of India, Surya Kant, sitting on a fresh bench constituted after the recall, publicly remarked that the two-judge bench had “created unnecessary uncertainty” and had not troubled itself to survey the relevant case law before arriving at so sweeping a conclusion [2].
This episode is not merely a story about environmental clearances. It is, at its core, a story about the architecture of judicial authority in India — about when one bench may correct another, and what procedural and constitutional tools it can legitimately use to do so. The doctrine that emerges from the case law is richer and more nuanced than any simple statement that “larger beats smaller” would suggest. And it remains, in important respects, unsettled.
The Constitutional and Procedural Framework Governing Bench Sizes
The Constitution of India does not prescribe in detail how the Supreme Court must organize itself into benches for the hearing of ordinary matters. The only hard rule appears in Article 145(3), which mandates that a minimum of five judges must constitute a bench when the Court is required to decide any case “involving a substantial question of law as to the interpretation” of the Constitution, or for hearing a Presidential reference under Article 143. Beyond this floor, Article 145(1) vests in the Supreme Court the power to make rules, with the President’s approval, for regulating generally the practice and procedure of the Court, including the minimum number of judges who are to sit for any purpose [3].
Pursuant to that power, the Supreme Court Rules, 2013 were enacted. Order VI, Rule 1 of those Rules provides that “all matters shall be heard and disposed of by a Bench consisting of not less than two Judges.” Read alongside Article 145(3), what this creates is a layered system: a default minimum of two judges for ordinary matters, a constitutional minimum of five for constitutional questions, and — by convention — incrementally larger benches for progressively more significant legal questions. The Chief Justice of India holds, by convention, the authority to constitute benches and assign matters to them, making the composition of any given bench an administrative act that carries enormous substantive consequences.
The practical result of this structure, as the Supreme Court itself noted in Union of India v. Raghubir Singh, (1989) 2 SCC 754, is that the Court “has found it necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate” [4].
The Larger Bench Rule and Its Doctrinal Foundations
The self-imposed discipline that binds smaller benches to the precedents of larger benches — what is commonly described as the “Larger Bench Rule” — is not a creature of statute. It is a judge-made norm, evolved over decades of judicial practice and progressively hardened into something resembling constitutional convention. Its foundational articulation in modern Indian jurisprudence is found in Union of India v. Raghubir Singh, (1989) 2 SCC 754, where a Constitution Bench stated, with clarity and authority:
“We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court.” [4]
The same judgment, referring to the growing practice of two-judge benches, added that for the purpose of imparting certainty and authority to decisions, future judgments should preferably be rendered by benches of at least three judges unless compelling reasons made this impractical. The rationale, expressed in both practical and principled terms, was that consistency in the law is a cardinal component of the Rule of Law itself. Inconsistency between benches of the same court — especially the court of last resort — erodes the legitimacy of judicial pronouncements and denies parties the ability to plan their affairs in reliance upon settled legal positions.
The doctrinal foundation of this rule is rooted in Article 141 of the Constitution, which provides that “the law declared by the Supreme Court shall be binding on all courts within the territory of India.” While Article 141 primarily binds subordinate courts, the Supreme Court Larger Bench Rule applies this principle internally, ensuring that conflicting decisions within the Supreme Court itself do not coexist, and that when discrepancies arise, the ruling of the larger or authoritative bench prevails.
Co-Equal Benches and the Problem of Horizontal Precedent
The harder and less settled question is what happens when two benches of the same numerical composition reach conflicting conclusions on the same question of law. The principle applied in such cases, as articulated by the Supreme Court in Mattulal v. Radhe Lal, (1975) 1 SCR 127, and confirmed in Raghubir Singh, is that “where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of judges had to be preferred over the decision of a Division Bench of a smaller number of Judges.” But what happens when the conflict is between two benches of identical size — say, two different three-judge benches, or two different two-judge benches?
Here, the correct procedure is not for one coordinate bench to simply overrule the other. The well-established convention, reinforced repeatedly in the case law, is that a bench which finds itself unable to agree with a decision of a coordinate bench — one composed of an equal number of judges — must refer the matter to a larger bench for resolution. It cannot simply declare the earlier decision wrong and go its own way. To do so would be, as the Court has noted, a breach of judicial discipline and a generator of precisely the kind of legal uncertainty that the larger bench rule is designed to prevent [5].
The question that Vanashakti threw into sharp relief, however, is what happens when a coordinate bench does not follow this referral procedure — when it proceeds to decide a matter in a way that is irreconcilable with a set of prior coordinate bench judgments, apparently without noticing or adverting to them. In that scenario, the later judgment is vulnerable to the label of per incuriam — a decision rendered in ignorance of, or without due regard to, a binding authority — and the question of how it can be corrected becomes urgently practical.
Per Incuriam, Review, and the Power to Recall: The Vanashakti Episode
In May 2025, a two-judge bench of the Supreme Court — Justice Abhay S. Oka and Justice Ujjal Bhuyan — delivered its judgment in Vanashakti v. Union of India, 2025 SCC OnLine SC 1139. The bench struck down the Union Government’s 2017 Notification and 2021 Office Memorandum, both of which had provided a framework for the grant of ex post facto environmental clearances. The court held that the concept of retrospective environmental clearance is “completely alien to environmental jurisprudence” and that these instruments were illegal on their face [6].
The judgment had immediate and far-reaching consequences. Thousands of ongoing and completed projects — many involving public infrastructure funded by the Central and State Governments — suddenly lacked the legal clearances necessary for their continued operation or existence. Industry bodies, most prominently the Confederation of Real Estate Developers of India (CREDAI), filed a review petition arguing that the two-judge bench had failed to consider or even acknowledge a series of prior two-judge and three-judge bench decisions that had taken a markedly different approach to the same question: D Swamy v. Karnataka State Pollution Control Board, (2023) 20 SCC 469; Electrosteel Steels Limited v. Union of India, 2021 SCC OnLine SC 1247; and Pahwa Plastics Pvt. Limited, (2023) 12 SCC 774 — all of which had recognised limited circumstances in which ex post facto environmental clearances could lawfully be granted [7].
The review petition was heard by a three-judge bench comprising the then Chief Justice of India B.R. Gavai, Justice Ujjal Bhuyan (who had himself authored the impugned judgment), and Justice K. Vinod Chandran. On 18 November 2025, by a 2:1 majority, the bench recalled the Vanashakti judgment in its entirety and directed that the matter be placed before a fresh bench for comprehensive rehearing. The majority — Chief Justice Gavai and Justice Chandran — held that the Vanashakti judgment was per incuriam, because it had been rendered without the bench having been shown, or having of its own notice considered, the cluster of coordinate bench precedents that had arrived at different conclusions on the permissibility of post-facto clearances. Justice Bhuyan, in a notable dissent, declined to accept that these earlier judgments were either binding or directly in point, and held that no sufficient ground for review had been made out.
Chief Justice Gavai, in the majority opinion, enunciated the principle with considerable firmness, stating that “a two-judge bench is bound by an earlier decision of another bench of equal strength and cannot take a contrary view; if reconsideration is needed, the matter must be referred to a larger bench, and any later decision ignoring an earlier co-equal judgment is per incuriam” [1]. The Chief Justice also held that Justice Vinod Chandran correctly observed that “it is one thing to find Electrosteel, Pahwa and D. Swamy per incuriam in the original proceeding, which would have restrained a review on that ground; but quite another to reject the prayer for review on the ground that though not noticed or referred to, those decisions are per incuriam; which still is a valid ground for review for not having been considered.”
The Institutional Architecture of Correction: Review Under Article 137
The legal mechanism that enabled the three-judge bench to recall the two-judge bench’s judgment was the power of review vested in the Supreme Court by Article 137 of the Constitution, read with Order XL Rule 1 of the Supreme Court Rules, 2013. Article 137 provides that “subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.” Order XL Rule 1 prescribes the narrow grounds on which such a review may be entertained — principally, the discovery of new and important matter or evidence not within the knowledge of the petitioner when the judgment was pronounced, an error apparent on the face of the record, or “any other sufficient reason.”
Critically, the Vanashakti review bench used the third of these grounds — “any other sufficient reason” — to justify recall. The sufficient reason, as the majority constructed it, was not a mere disagreement with the outcome of the original judgment. It was the specific procedural defect that the original bench had failed to place before itself, or had not been shown by counsel, the cluster of coordinate bench precedents that were directly on point. This is a legally significant distinction. A review court does not function as an appellate court — it does not re-examine the merits of every question afresh — but when a judgment is shown to have been rendered in ignorance of applicable binding authority, the failure is not merely intellectual; it is a procedural lapse that voids the reasoning on which the judgment rests [8].
The tension this creates is real and was visible in the Vanashakti review itself. Justice Bhuyan, dissenting, argued with considerable force that the majority was in effect re-examining the merits of a judgment under the guise of finding it per incuriam — that the judgments in Electrosteel and Pahwa were themselves of questionable correctness, and that a review court cannot recalibrate the entire intellectual exercise performed by the original bench simply because a different set of precedents might have been cited. This is the edge of legitimate review — the line between correcting a procedural failure and conducting a disguised appeal — and where exactly that line falls remains one of the least settled questions in Indian procedural law.
The A.R. Antulay Principle and the Limits of Judicial Correction
The jurisprudence on co-equal bench correction has a longer history than the Vanashakti episode might suggest. A particularly significant and instructive precedent is A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, decided by a seven-judge bench. In that case, the Court was confronted with a situation where an earlier five-judge bench had issued directions transferring a criminal trial from the Special Judge to a High Court judge — a transfer that the seven-judge bench subsequently found to be without jurisdiction and violative of fundamental rights under Articles 14 and 21 of the Constitution of India [9].
The judgment in Antulay articulated a principle of great significance. The majority held that “such a decision would not be binding as a judicial precedent. A co-ordinate bench can discharge with it and decline to follow it. A larger bench can overrule such decision. When a previous decision is so overruled, it does not happen nor has the overruling bench any jurisdiction so to do that the finality of the operative order, inter-parties, in the previous decision is overturned.” The Court drew an important distinction between the ratio of a judgment — the legal proposition for which it stands, and which can be overruled by a larger bench — and the operative order in a judgment, which produces res judicata between the parties and which cannot be disturbed by a co-equal or even a larger bench acting in the same or collateral proceedings [9].
What Antulay thus established — and what the Vanashakti episode confirms — is that the judicial correction of a flawed precedent operates on two different planes simultaneously. On the legal plane, a larger bench or a review bench can declare a decision per incuriam, withdraw it as a precedent, and refuse to apply it in future cases. On the inter-partes plane, however, the actual operative directions issued to the parties in the original case, creating rights and obligations between them, enjoy a degree of sanctity that is independent of the correctness of the legal reasoning. The Vanashakti recall, which restored the matter for fresh adjudication rather than reversing the outcome in favour of a particular set of parties, is consistent with this understanding.
The Doctrine of Per Incuriam: How It Works and Where It Fails
The doctrine of per incuriam — from the Latin meaning “through lack of care” — operates as a shield and a sword in the context of judicial precedent. As a shield, it permits a later court to decline to follow an earlier decision that was rendered without considering a statute or binding authority directly relevant to the question decided. As a sword, it provides the basis for recall or review of an earlier judgment, as in Vanashakti. The doctrine has deep roots in English common law and was transplanted into Indian jurisprudence principally through the Supreme Court’s own decisions.
The critical question the doctrine poses is: how significant must the overlooked authority be? It is not every omission of a citation that renders a judgment per incuriam. The overlooked case or statute must be such that, had it been brought to the attention of the court, it would — or at least might — have led to a different result. In Vanashakti, the majority held that the coordinate bench precedents in Electrosteel, Pahwa, and D Swamy precisely satisfied this test, because they represented a judicial position — that ex post facto environmental clearances can be permitted in limited circumstances — that was directly inconsistent with the absolute bar imposed by the impugned judgment. The dissent of Justice Bhuyan, however, questioned whether these earlier judgments were in fact directly on point, or whether they could be distinguished on their facts. This is the inherent indeterminacy of the per incuriam doctrine: the very exercise of determining whether an earlier case was “directly in point” requires the same kind of legal evaluation that the original bench was accused of failing to perform.
Implications for Judicial Discipline and the Rule of Law
Chief Justice Surya Kant, on taking charge and hearing the recalled Vanashakti matter listed before his bench, made a remark that bears quoting in the context of this larger discussion. He observed that the two-judge bench in the original Vanashakti judgment “ought to have considered the entire case law before taking a view,” and, in a pointed observation directed at the institutional culture of the Court, added: “We have enough time to refer to various parts of the Constitution, but we don’t have enough time to refer to our precedents!” [2].
This remark captures a genuine and systemic problem. The Supreme Court’s enormous case load — it functions as a court of first instance, an appellate court, a constitutional court, and a supervisory court simultaneously — has produced a body of precedent so vast that no individual bench can realistically survey it in its entirety before deciding any given matter. The result is an endemic risk of precisely the kind of inadvertent conflict that produced the Vanashakti situation. Two-judge benches, which constitute the default minimum for ordinary matters under Order VI Rule 1 of the Supreme Court Rules, 2013, are the most numerous and the most pressured. They hear the widest range of matters and generate the largest share of the Court’s output. They are, correspondingly, the most likely to produce decisions that inadvertently conflict with earlier coordinate bench authority.
The academic literature on this problem is not new. Scholars have documented multiple instances in which the larger bench rule has been breached — where smaller or coordinate benches have effectively overruled earlier decisions by ignoring them, by “distinguishing” them in ways that cannot withstand scrutiny, or by declaring them per incuriam without themselves having performed the analysis that such a finding demands [10]. The Vanashakti episode is significant precisely because it represents the Court using the review jurisdiction to address this failure directly, rather than allowing the conflicting precedents to coexist in the case law until a larger bench eventually resolves them.
The Unresolved Questions
Despite the clarity that decisions like Raghubir Singh, Antulay, and now Vanashakti provide on particular points, several questions at the intersection of bench size, precedent, and correction remain genuinely open in Indian law.
First, the precise conditions under which a three-judge bench sitting in review may recall a two-judge bench’s judgment — rather than merely declining to follow it in future — have never been authoritatively settled. Review, as both a constitutional power under Article 137 and a procedural power under Order XL Rule 1, is narrowly defined. The use of “any other sufficient reason” to justify recall on the basis of overlooked coordinate bench authority is, as the Vanashakti dissent made clear, contested ground. If the overlooked precedents are themselves debatable in their correctness or applicability, the per incuriam finding begins to look less like a procedural correction and more like an appellate intervention conducted under a different name.
Second, the relationship between recall and the inter-partes finality of judicial orders — the principle affirmed in Antulay — remains a source of complexity. In Vanashakti, the recall resulted in restoration of the matter for fresh hearing, which effectively suspended the operative directions of the original judgment. Whether this amounted to a temporary nullification of a binding judicial order, and on what authority it rested, was not exhaustively examined in the review judgment.
Third, and perhaps most fundamentally, the larger bench rule itself remains an institutional convention rather than a codified rule. The Supreme Court Rules, 2013 are largely silent on the hierarchy of bench compositions for the purpose of precedent. The rule is thus as strong as the Court’s own willingness to enforce it — and, as the academic literature documents, that willingness has not always been consistent [10].
Conclusion
The question of whether — and on what terms — a three-judge bench may recall or effectively override a two-judge bench sits at the intersection of constitutional design, judicial convention, and the practical demands of a court that handles hundreds of thousands of matters each year. India’s doctrine in this area is real and substantive: it is not simply the case that anything goes, or that larger always beats smaller in every context. The Larger Bench Rule underpins this hierarchy, as reflected in the Raghubir Singh judgment, which establishes a clear order for the purpose of precedent. The Antulay case confirms that operative inter-partes orders retain a finality distinct from the correctness of the legal reasoning behind them. Article 137 and Order XL Rule 1 provide the formal mechanism of review, but one that is bounded by narrowly drawn grounds.
What the Vanashakti episode has demonstrated is that these doctrines, taken together, do provide a workable — if imperfect — mechanism for correction when a smaller bench delivers a judgment that ignores binding coordinate authority. But the mechanism depends for its coherence on the factual finding that the overlooked precedents were actually ignored, were actually directly in point, and would actually have altered the result. When those factual propositions are themselves contested — as Justice Bhuyan’s dissent showed they can be — the doctrine frays at the edges. India’s Supreme Court will need, sooner or later, to articulate with greater precision the conditions under which judicial correction of a co-equal bench’s work is permissible, and the limits within which it must operate. Until then, the doctrine on co-equal bench powers will remain, as the title of this article suggests, unresolved at its most consequential margins.
References
[1] SCC Online Blog, “Ex-Post Environmental Clearances: What the Supreme Court’s 2:1 Verdict Says – Majority v Dissent,” SCC Online Blog, November 19, 2025. Available at: https://www.scconline.com/blog/post/2025/11/19/ex-post-environmental-clearances-sc-2025-review-vanashakti/
[2] Live Law, “2-Judge Bench Created Unnecessary Uncertainty: CJI Surya Kant On Judgment Against Post-Facto Environmental Clearances,” February 17, 2026. Available at: https://www.livelaw.in/top-stories/2-judge-bench-created-unnecessary-uncertainty-cji-surya-kant-on-judgment-against-post-facto-environmental-clearances-523332
[3] Supreme Court Observer, “Court to Have Single Judge Benches,” October 9, 2023. Available at: https://www.scobserver.in/journal/court-to-have-single-judge-benches/
[4] Union of India & Anr. v. Raghubir Singh (Dead) by Lrs., (1989) 2 SCC 754 (Indian Kanoon). Available at: https://indiankanoon.org/doc/505842/
[5] Supreme Court Observer, “The Large and Small of It: The Supreme Court on Bench Sizes,” August 31, 2024. Available at: https://www.scobserver.in/journal/the-large-and-small-of-it-the-supreme-court-on-bench-sizes/
[6] Verdictum, “Demolition of Completed Projects Results In Throwing Valuable Public Resources In Dustbin: Supreme Court Recalls ‘Vanashakti’ Judgment,” November 18, 2025. Available at: https://www.verdictum.in/court-updates/supreme-court/confederation-of-real-estate-developers-of-india-v-vanashakti-2025-insc-1326-recall-of-judgment-1598383
[7] Lexology, “Supreme Court Recalls Vanashakti Judgement on the Validity of Ex Post Facto Environmental Clearance,” November 21, 2025. Available at: https://www.lexology.com/library/detail.aspx?g=02aa3935-943b-4736-b102-c7d95ba84eff
[8] Chandhiok & Mahajan, “C&M E-Alert: Supreme Court Reinstates Ex Post Facto Environmental Clearances,” November 21, 2025. Available at: https://www.chandhiok.com/post/c-m-e-alert-supreme-court-reinstates-ex-post-facto-environmental-clearances
[9] A.R. Antulay v. R.S. Nayak & Anr., (1988) 2 SCC 602 (Indian Kanoon). Available at: https://indiankanoon.org/doc/1353689/
[10] Chandrachud, C. et al., “Precedent, stare decisis and the Larger Bench Rule: Judicial Indiscipline at the Indian Supreme Court,” Indian Law Review, Vol. 6, No. 1 (2021). Available at: https://www.tandfonline.com/doi/abs/10.1080/24730580.2021.1941688
