Constituting Constitution Benches of the Supreme Court: An analysis

Bar & Bench September 28 2019
collegium

Shrutanjaya Bhardwaj

A Constitution Bench is a bench of the Supreme Court having five or more judges on it. These benches are not a routine phenomenon. A vast majority of cases before the Supreme Court are heard and decided by a bench of two judges (called a Division Bench), and sometimes of three. Constitution Benches are exceptions, set up only if one or more of the following circumstances exist: 

  1. The case involves a substantial question of law pertaining to the interpretation of the Constitution [see Article 145(3) of the Constitution, which mandates that such matters be heard by a bench of not less than five judges];
  2. The President of India has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution [again, see Article 145(3)]; 
  3. Two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, thus warranting a definitive pronouncement by a larger bench; 
  4. A later three-judge bench doubts the correctness of a judgment delivered by a previous three-judge bench of the Supreme Court, and decides to refer the case to a larger bench for a reconsideration of that earlier judgment.

Presently, Constitution Benches are set up on an ad hoc basis as and when the need arises. The idea behind a Constitution Bench is clear: it is constituted in rare cases to decide important questions of fact or legal and/or constitutional interpretation.

It is also clear in most cases that the pronouncement of a Constitution Bench is unlikely to be disturbed or overruled for a long time to come – there is a sense of finality attached to that verdict – because the only way to get such a verdict overruled is to first convince a subsequent five-judge bench of the Supreme Court that the view previously taken was wrong, have the matter referred to a larger bench of seven judges, and then convince that bench of seven judges to overrule the previous judgment of the Constitution Bench.

It would hence not be an exaggeration to say that Constitution Benches wield great power and responsibility to fix the path that the law is to take for a long time to come. 

In fact, being a judge of the highest constitutional court of the country is precisely about the ability to perform this responsibility well. A Supreme Court Judge is not appointed to that office only to decide matters that are insignificant in the larger scheme of things – whether a landlord’s petition against his tenant was within the period of limitation, what should be the quantum of money that Messers Goons & Co. must pay to Messers Irrelevant & Co. for having used their property without permission, etc.

It is unfortunate that the vast majority of cases before our judges happen to be this mundane, and further, that they are filed only after a High Court has already given a judgment in the matter to the best of its judicial ability (leaving little scope for the Supreme Court’s interference).

But when one is appointed as a judge of the Supreme Court, it is presumed that s/he has what it takes to decide larger, complex questions of legal and constitutional import, and that when s/he is called upon to perform this role, the job will be done well. 

What is also implicit is the assumption that every Supreme Court judge will be given the chance to perform this role at some point. One can only imagine the workload of judges who have to wade, on average, through a dozen briefs on a final hearing day, hear varying levels of arguments, dictate or reserve orders, and then write judgments while ensuring that the ‘law’ under Article 141 that flows from their pen is consistent with 70 years of precedent.

Compare that with the mellow pace of a Constitution Bench hearing where volumes of law are actually perused at leisure and multiple minds grapple with novel questions of law, viewing them from every angle to ensure that a verdict can stand the test of time. Quite often, such a judgment can ensure that several hundred pending cases across the country get disposed of in their terms. Surely, every judge deserves such a break?   

It would be a strange position to take that only some judges of India’s highest constitutional court deserve the rewarding experience of engaging in patient and nuanced discussions on the hotly contested legal issues of the time, while the others should just stick to routine.

For these reasons, one would also expect that the longer a judge has been on the Supreme Court, the more s/he has been part of Constitution Benches. Yet, a study of the judgments delivered by the Indian Supreme Court from 2016 till date reveals that all judges are not equally represented on Constitution Benches. This is true even inter se those judges who were appointed to the Court at the same time or within one year of each other.

In other words, even among contemporary judges, there is a huge gap in terms of the opportunity to sit on a bench that decides substantial legal or constitutional questions. Table 1 (see below) contains a list of all Constitution Bench decisions delivered in or after 2016 along with the names of the judges who constituted these Benches. Table 2 contains the names of sitting judges of the Supreme Court along with the number of times they have been on a Constitution Bench.

Table 1 - List of Constitution Bench decisions since 2016

For instance, compare the Constitution Bench memberships of Dr. DY Chandrachud, J. and L Nageswara Rao, J. who were both appointed to the Supreme Court on the same day, i.e. on May 13, 2016. While Justice Chandrachud tops the list with 21 appearances, Justice Nageswara Rao is one of the last ones on the list with only 3 appearances.

Five judges who were appointed only nine months later – Justices S Abdul Nazeer, MM Shantanagoudar, SK Kaul, Deepak Gupta and Navin Sinha (all appointed together on February 17, 2017) – have 7, 4, 2, 1 and 0 appearances respectively. Likewise, both Justice RF Nariman and Justice Arun Mishra were appointed on July 7, 2014, but have been on a Constitution Bench 7 times and once respectively.

Table 2 - No. of times sitting judges have been part of Constitution Benches:

Note: Only those judges are included in the table who have been part of the Supreme Court for a sufficiently long time, i.e. those who were appointed on or before April 27, 2018. Justice Indu Malhotra is the most recent appointee under this criterion. Accordingly, 16 other Sitting Judges of the Supreme Court, all appointed after the said date, have not been included. The sole exception is Justice Sanjiv Khanna, who is shown in the list because he has been part of a Constitution Bench despite his recent joining date.

On the other hand, some judges whose appointment dates are several years apart from each other have sat on Constitution Benches on equal number of occasions. Justice S Abdul Nazeer, appointed in February 17, 2017, and Justice NV Ramana, appointed on the same date exactly three years earlier, have both appeared on Constitution Benches equally (7 times). Likewise, Justice SA Bobde (9 appearances) was appointed to the Court more than 3 years before Justice Ashok Bhushan (10 appearances). Perhaps the two starkest comparisons are:

  • Justice Arun Mishra (appointed on July 7, 2014) and Justice Sanjiv Khanna (appointed on January 18, 2019), each having sat on a Constitution Bench once; and
  • Ranjan Gogoi, CJI (appointed on April 23, 2012), having been on a Constitution Bench only 6 times in seven years, and Justice Indu Malhotra (appointed on April 27, 2018), who has been a member on 5 occasions.

Many other contrasts are evident in the tables annexed below. A longer discussion here is unnecessary. Only two broad aspects need to be highlighted. First, the data shown makes it clear that some judges have had the chance to decide important legal and constitutional questions much more than others. Second, it also reveals that the odds that any given Supreme Court judge will be part of a Constitution Bench during his/her tenure do not necessarily depend on the number of years s/he has spent as a judge of the Court.

Both are counter-intuitive propositions for the reasons discussed above. Every judge has a unique approach towards the law and there is no reason why important legal questions should be decided more using some approaches than others.

In light of the talk of an upcoming Permanent Constitution Bench, one hopes that the system adopted to select and rotate judges will be representative and ensure that the opportunity to decide the course of Indian law is given equally to all judges so that we may have the advantage of the rich and varied human experiences that they bring with them.

The author is an advocate at the Supreme Court of India.