The story so far: Under the supervision of the new Chief Justice of India Uday Umesh Lalit, the Supreme Court of India has returned to hearing Constitution Bench matters. Twenty-five of the 29 SC judges are now part of the five Constitution Benches sitting in the SC.
A few days before he took over, Justice U. U. Lalit announced his intentions to introduce major reforms in the SC during his tenure. Besides assuring transparency in the listing of cases in the apex court and setting up a system for mentioning urgent matters, the then CJI-designate promised the SC would strive to have at least one Constitution Bench functioning throughout the year.
Last month, a few days before the new CJI’s first working day, the SC notified that 25 Constitution Bench matters would be listed for hearing. The matters included a challenge to the Centre’s demonetisation policy, reservation for economically weaker sections, WhatsApp privacy, ‘real’ Shiv Sena row and hijab ban. The first two benches were assembled on August 29.
Several Constitution Bench matters were long pending. There was no Constitution Bench hearing during the tenure of former Chief Justice N.V. Ramana. The SC, however, formed Constitution Benches during his tenure to hear the dispute between the Delhi Government and the Centre for control over bureaucrats in the Capital and the row over the ‘real’ Shiv Sena between Uddhav Thackeray and Maharashtra CM Eknath Shinde.
What is a Constitution Bench?
The Supreme Court is at the apex of the Indian judicial system. As the guardian of the Constitution, it is the primary duty of the SC to uphold the fundamental rights of citizens and protect their liberties. Whenever a matter of law arises that requires a provision or provision of the Constitution to be interpreted, or there is a “significant legal question”, it is required to be decided by a Bench involving a minimum of five judges of the Supreme Court. Such a Bench is called Constitution Bench. Constitution Benches have decided some of India’s most significant cases over the years:
- Maneka Gandhi v. Union of India: In 1977, the Centre impounded Maneka Gandhi’s passport in the “interest of general public”. When the government declined to give reasons for the order, Ms. Gandhi approached the SC. The seven-judge Bench expanded the scope of Article 21 and ruled that “personal liberty” is “of the widest amplitude” covering “a variety of rights which go to constitute the personal liberty of man”.
- Justice K.S. Puttaswamy (retd) v. Union of India: Justice K.S Puttaswamy, a retired judge of the Karnataka High Court, filed a writ petition in 2012 in the SC challenging the constitutional validity of the Aadhaar scheme. In 2017, a nine-judge bench recognised the right to privacy as one guaranteed under the Constitution. The Bench ruled that while the right to privacy is intrinsic to an individual’s ability to exercise bodily autonomy, it is still not an “absolute right”. Justice K.S Putraswamy, a retired judge of the Karnataka High Court filed a writ petition in the SC challenging the constitutional validity of the Aadhaar scheme
- In re: The Berubari Union and Exchange of Enclaves (1960): The seven-judge bench of the Supreme Court held that the Parliament doesn’t have the power to cede a State’s territory to another country unless it chooses to give effect to the same through an amendment to Article 368.
- Kedar Nath Singh v. State of Bihar: In 1962, the five-judge bench upheld the constitutional validity of Section 124A of the Indian Penal Code which penalises sedition. The top court, however, held that Section 124A must be construed to only penalise statements that incite public disorder.
When does the SC set up a Constitution Bench?
Article 145(3), which deals with the rules of the court, provides for the setting up of a Constitution Bench.Article 145(3) says a minimum of five judges need to sit for deciding a case involving a “substantial question of law as to the interpretation of the Constitution”, or for hearing any reference under Article 143, which deals with the power of the President to consult the SC.
Other scenarios in which a Constitution Bench can be constituted are:
- If two or three-judge Benches of the Supreme Court have delivered conflicting judgments on the same point of law
- If a later three-judge Bench of the SC doubts the correctness of a judgment delivered by a former Bench with as much strength and decides to refer the matter to a larger bench for reconsideration of the previous judgment.
The judiciary hasn’t determined so far what constitute “substantial questions of law” that “involve Constitutional interpretation”.
A larger Bench can, however, overrule the pronouncement of a five-judge Constitution Bench. But before that, a five-judge Bench must be convinced that the previous order was incorrect, following which it may refer the matter to a larger Bench of seven judges.
The strength of Constitution Benches
Constitution Benches are not a routine affair in the SC as most of the cases are listed before a two or three-judge Bench, called a Division Bench. As per the legal provisions, a Constitution Bench consists of a minimum of five judges and the number can go up to an odd number of seven, nine and so on.
The Chief Justice of India, who is also the master of the roster, decides which cases will be heard by a Constitution Bench, the number of judges on the bench and even its composition. While there are no clear guidelines, the sole discretion lies with the CJI. It is not binding on the CJI to be a part of a Constitution Bench.
Cases which deal with important constitutional matters or are likely to have a significant impact are usually heard by larger benches. However, there have been instances when smaller benches of two or three judges have been assigned crucial issues with wide impact. For instance, in 2013 a two-judge bench reversed the Delhi HC judgement in Suresh Kumar Koushal vs. Naz Foundation decriminalizing homosexuality, stating that this could only be done by the Parliament. A few years later, a five-judge bench unanimously struck down Section 377.
To date, the largest-ever Constitution Bench was that of 13 judges in the case Kesavananda Bharati v. State of Kerala, headed by the then CJI S. M. Sikri. A ground-breaking judgment was delivered as the SC, by a thin majority of 7:6, holding that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution.”
Why are more Constitution Benches needed?
When it first opened its doors in 1950, the Supreme Court had a total strength of eight judges. About 13% of the court’s decisions were from a five-or-larger Bench in the 1950s, but the court was soon overwhelmed by backlogs. The Parliament increased the overall strength of the Court from 11 in 1956 to 33 in 2019, but there was a decline in the number of Constitution Benches as smaller Benches heard more cases.
Nick Robinson, a legal researcher at the Program on the Legal Profession at Harvard Law School analysed 50 years of Supreme Court data and noted that while Constitution Benches are vital for Supreme Court jurisprudence, the number of such Benches dropped from a yearly average of 134 cases in the 1960s to an average of 6.4 cases per year in the last half of 2000s. “We found that even as Constitution benches have become less frequent, their judgments have become longer, more prone to split decisions, increasingly delayed, and more likely to have been brought under both appellate and writ jurisdictions. In fact, given the more convoluted nature of these decisions in recent years, it has become increasingly difficult to even determine the winning party,” the authors said.
The study, published in 2011, found that the number of regular matters disposed of by the Supreme Court had risen over the decades. “The falling number of Constitution Bench decisions indicates that the court is getting distracted by its backlog of thousands of rather mundane cases. It risks falling behind on its core duty as the primary interpreter of the Indian Constitution,” Mr. Robinson had told The Hindu.
The situation remains similar a decade later. While two Constitution Benches were set up in 2021, there was none in former CJI N.V. Ramana’s tenure spanning over one year. When he retired on August 26, around 490 Constitution Bench matters were pending before the SC. Cases that awaited a Constitution Bench during his tenure included challenges to the abrogation of Article 370, electoral bonds, the constitutionality of the UAPA amendment and the Sabarimala review petition. These cases were pending for almost five years, with an average of 3 years of pendency, as per a Live Law report.
As of October 1 -- around a month after CJI Lalit took over -- 488 Constitution Bench matters are pending. Of these, 54 cases directly deal with questions of law and constitutional interpretation, while 434 connected matters are pending. While 338 matters are pending before five-judge benches, 15 seven-judge and 135 nine-judge bench cases are pending, according to official statistics from the SC. A decision in the main matter disposes of those cases which are connected.
Research by the Vidhi Centre for Legal Policy in February this year concluded that while the number of main cases pending before Constitution Benches saw a slight rise, the increase has been drastic in connected matters. It drew two conclusions— “First, even though the court is disposing such cases, it is not able to keep up with the inflow of new cases. Therefore, the overall pendency has remained stagnant or marginally increased. Second, the increase in the number of connected matters means that more cases have been tagged with the main matters pending before these courts.”
The numbers will only continue to rise unless their disposal is prioritised, it said, while adding that disposal of Constitution Bench cases can reduce pendency in the SC.