The central and decisive issue raised in the UBT petition is: Can two-thirds of legislators/MPs, on the strength of their numbers alone, claim a merger with another political party without the consent or merger of the Original Political Party?
However, the crucial fact is that the very same substantial question of law is already pending consideration in Girish Chodankar v. Goa Legislative Assembly before a larger three-Judge Bench headed by Chief Justice of India Surya Kant.
In Girish Chodankar v. Goa Legislative Assembly, 2022 SCC OnLine Bom 377, the Bombay High Court upheld the decision recognising the merger of Congress MLAs with the BJP. Proceedings challenging that judgment are presently pending before the Supreme Court in SLP (C) No. 5256 of 2025, where the fundamental issue is again whether two-thirds of legislators can claim merger with another party without the merger or consent of the Original Political Party.
Significantly, on 23 July 2026, the three-Judge Bench headed by CJI Surya Kant directed that the Goa matter be listed for hearing in December 2026.
Two-Judge Bench Cannot Independently Decide the Same Issue Already Pending Before a Larger Bench — Adv. Nilesh Ojha
Adv. Nilesh Ojha, Chairman of the Rashtriya Sanvidhan Raksha Samiti, has strongly contended that once the same decisive question of law is already pending before a larger three-Judge Bench headed by the CJI, a smaller two-Judge Bench deciding the very same issue independently would raise a direct conflict with the settled principles of Judicial Discipline, Judicial Propriety, Bench Propriety and Certainty of Law.
According to him, in such circumstances, the course consistent with judicial discipline is clear: either the matter should be placed before the CJI/larger Bench for appropriate orders, or the smaller Bench should await the decision of the larger Bench on the identical question of law.
Even a Co-ordinate Bench Cannot Take a Contrary View
Recently, in Confederation of Real Estate Developers of India v. Vanashakti, 2025 SCC OnLine SC 2474, a three-Judge Bench of the Supreme Court set aside the decision of a two-Judge Bench, underscoring the requirements of judicial discipline. A Bench cannot disregard a binding view taken by a Co-ordinate Bench of Equal Strength, and a smaller Bench is necessarily bound by the law declared by a larger Bench.
The reason is fundamental: if Benches of equal strength were permitted to pronounce conflicting views on the same question of law, certainty of law would disappear and the result could be judicial anarchy. The authority of a larger Bench is therefore not a matter of mere convention; it forms part of the institutional discipline governing the Supreme Court.
Smaller Bench Has No Jurisdiction to Interfere With Binding Directions of a Larger Bench
More importantly, in Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470, the Supreme Court made it clear that a smaller Bench of the Supreme Court has neither the jurisdiction nor the authority to interfere with, modify or relax the terms of final and binding directions issued by a larger Bench; such interference may itself amount to contempt of court.
Passing Final Orders Despite Pendency Before Superior Court — Technical Contempt
Likewise, in S. Abdul Karim v. M.K. Prakash, (1976) 1 SCC 975 : AIR 1976 SC 859, a three-Judge Bench held that where a judicial officer was aware that proceedings concerning the same subject matter were pending before a superior court, the prudent and proper course was to postpone the final order and await the decision of the superior court.
In that case, the conduct of the judicial officer who proceeded to pass the final order despite the pendency of the proceedings before the superior court was held to constitute “technical contempt”; however, in the absence of mens rea, penal action was not considered necessary.
Every Supreme Court Bench Must Avoid Conflicting Decisions
In Som Mittal v. Govt. of Karnataka, (2008) 3 SCC 574, a three-Judge Bench emphasised that the law declared by the Supreme Court is binding on all courts. The Supreme Court itself must also exercise care to ensure that its orders and decisions do not create confusion or conflict with existing law or other binding decisions of the Court.
Disagreement Does Not Permit a Smaller Bench to Disregard a Larger Bench
More recently, in Sayed Iftikhar v. NIA, 2026 INSC 503, the Supreme Court reiterated that judicial discipline and certainty demand that Benches of smaller strength remain mindful of and bound by decisions rendered by larger Benches. If a smaller Bench disagrees with the ratio laid down by a larger Bench, it cannot disregard it or declare a contrary position; the proper course is to make a reference to the Chief Justice of India for consideration by a still larger Bench.
Similarly, in New India Assurance Co. Ltd. v. Dolly Satish Gandhi, 2026 INSC 498, the Supreme Court emphasised the Court’s independent responsibility to apply the correct law, maintain consistency with binding precedents and avoid per incuriam decisions.
What Is the Proper Course for the Two-Judge Bench?
If the decisive issue in the UBT six-MP case and the issue already pending before the CJI-led three-Judge Bench in Girish Chodankar are identical or substantially identical, Adv. Ojha contends that the two-Judge Bench ought not to independently finally adjudicate the same question in a manner capable of producing conflicting judicial outcomes.
According to him, the course consistent with settled principles of judicial discipline would be to place the matter before the Hon’ble CJI through the Registry for appropriate orders so that it may be considered along with the connected larger-Bench matter, or await the decision of the three-Judge Bench in Girish Chodankar.
Another Legal Hurdle for UBT — Existing Bombay High Court Judgment Goes Against Its Proposition
There is another significant difficulty confronting UBT. The Bombay High Court judgment in Girish Chodankar has not been set aside as of now. It is under challenge before the Supreme Court, but the mere pendency of an appeal/SLP does not by itself erase the judgment under challenge.
Thus, the correctness of the very interpretation on which UBT seeks to build its challenge is now awaiting consideration by the three-Judge Bench headed by the CJI. This further strengthens the institutional justification for avoiding an independent final determination of the same question by a smaller Bench before the larger Bench pronounces upon it.
One Supreme Court, One Consistent Law — Conflicting Decisions on the Same Question Must Be Avoided
The issue ultimately goes to the heart of judicial discipline: the Supreme Court is one Court. A situation in which different Benches of the same Court return conflicting conclusions on the same decisive question of law can undermine certainty of law, consistency of judicial decisions and the institutional credibility of the Court.
Therefore, the controversy is no longer confined to the question, “Is the merger of the six UBT MPs valid or invalid?” A logically prior question has arisen:
“When a three-Judge Bench headed by the CJI is already seized of the very same decisive question of law and has fixed it for hearing in December 2026, why should a smaller two-Judge Bench independently finally decide that question before the larger Bench?”
According to Adv. Nilesh Ojha, Judicial Discipline is not optional; it is an indispensable requirement of the Supreme Court’s institutional functioning. Where the same decisive question is already pending before a larger Bench, the course consistent with settled law and judicial propriety is to avoid a potentially conflicting adjudication and either await the larger Bench’s decision or place the matter before the CJI/larger Bench for appropriate orders.
