JUDGMENT

R.C. LAHOTI, CJI.

In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay 1962 Suppl.(2) SCR 496, a five-Judge Bench of this Court ruled by a majority of 4 : 1 that the Bombay Prevention of Ex-communication Act (Act No. 42 of 1949) was ultra vires the Constitution as it violated Article 26 (b) of the Constitution and was not saved by Article 25(2). On 26.2.1986 the present petition has been filed seeking re-consideration, and over-ruling, of the decision of this Court in Sardar Syedna Taher Saifuddin Sahebs case (supra) and then issuing a writ of mandamus directing the State of Maharashtra to give effect to the provisions of the Bombay Prevention of Ex-communication Act, 1949.

2. The matter came up for hearing before a two-Judge Bench of this Court which on 25.8.1986 directed `rule nisi to be issued. On 18.3.1994 a two-Judge Bench directed the matter to be listed before a seven-Judge Bench for hearing. On 20.7.1994 the matter did come up before a seven-Judge Bench which adjourned the hearing awaiting the decision in W.P.No. 317 of 1993. On 26.7.2004 IA No. 4 has been filed on behalf of respondent No. 2 seeking a direction that the matter be listed before a Division Bench of two judges. Implicitly, the application seeks a direction for non-listing before a Bench of seven Judges and rather the matter being listed for hearing before a Bench of two or three judges as is the normal practice of this Court. In the contents of the application reliance has been placed on the Constitution Bench decisions of this Court in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha & Ors. (2001) 4 SCC 448 followed in four subsequent Constitution Bench decisions namely Pradip Chandra Parija & Ors. v. Pramod Chandra Patnaik & Ors., (2002) 1 SCC 1, Chandra Prakash & Ors. v. State of U.P. & Anr., (2002) 4 SCC 234, Vishweshwaraiah Iron & Steel Ltd. v. Abdul Gani & Ors., (2002) 10 SCC 437 and Arya Samaj Education Trust & Ors. v. Director of Education, Delhi & Ors., (2004) 8 SCC 30.

3. The prayer made on behalf of respondent No. 2 has been opposed by the petitioners submitting that the matter must come up before seven-Judge Bench only. Two reasons have been canvassed in opposing the prayer contained in IA No. 4 by Ms. Indira Jaising, the learned senior counsel for the petitioners. It was submitted that as the writ petition specifically calls for reconsideration of a five-Judge Bench decision of this Court wherein `rule nisi has been issued, the matter must necessarily be heard by a seven-Judge Bench. Next, it was submitted that the decisions relied on by the learned counsel for the respondent No. 2 and referred to in IA No. 4 do not lay down the correct law.

4. We have heard the learned counsel for the parties at length. In our view, the prayer contained in the application deserves to be allowed only in part.

5. In Bharat Petroleum Corporation Ltds case (supra) the Constitution Bench has ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, they could have ordered that the matter be heard by a Bench of three learned Judges. Following this view of the law what has been declared by this Court in Pradip Chandra Parija & Ors.s case (supra) clinches the issue. The facts in the case were that a Bench of two learned Judges expressed dissent with another judgment of three learned Judges and directed the matter to be placed before a larger Bench of five Judges. The Constitution Bench considered the rule of `judicial discipline and propriety as also the theory of precedents and held that it is only a Bench of the same quorum which can question the correctness of the decision by another Bench of the co-ordinate strength in which case the matter may be placed for consideration by a Bench of larger quorum. In other words, a Bench of lesser quorum cannot express disagreement with, or ques