What is the thread that binds the Salwa Judum, Aruna Shanbaug, Right to Education and the Naz Foundation cases? These all happen to be relatively significant constitutional matters and, belying Article 145(3) of the Constitution of India, have been decided by benches of two or three judges of the Supreme Court of India. The subject of bench structure which forms a significant part of the literature on adjudication bears important consequences on various issues, some of which shall be outlined hereinafter.
The Supreme Court – Then and Now
The Supreme Court began with strength of eight judges. Increase in litigation and methods in judicial creativity ensured that its docket expanded substantially with the Supreme Court entertaining a wide array of matters in its appellate as well as original jurisdiction. Currently, the Court has a strength of thirty judges (Chief Justice and 29 puisne judges) and sits in benches of 2-3 judges and it is only when questions of immense constitutional importance arise that a larger bench is constituted. Of late, the number of Constitution benches has significantly decreased and it has had an adverse impact on the institutional legitimacy of the Court and authoritativeness of its decisions. Admittedly, questions of law as to the interpretation of the Constitution require a deeper deliberation over the issue and the presence of five or more judges on the bench can ensure the same. So while the logical consequence of the Court sitting in benches of 2-3 judges is that the number of judgments pronounced have increased, the quality and consistency of these texts have come under the scanner.
The need for five or more judges sitting in judgment over questions of constitutional importance traces its history to the deliberations of the Drafting Committee in October 1948when it recommended that the proviso to Article 121(2) (what is now Article 145(3)) read that “it shall be the duty of every judge to sit for the said purposes”, the purpose herein being “deciding any case involving a substantial question of law as to the interpretation of this Constitution”. This was preceded by Justice Felix Frankfurter of the Supreme Court of the United States advising Sir B.N. Rau that the Court should sit en banc so as to lend finality and authoritativeness to its decisions. While this suggestion was not adopted in its entirety, we do have Article 145(3) in place which mandates that “the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution..........shall be five”.
As the Supreme Court’s workload increased, so did the number of judges and the practice of judges sitting in benches of 2-3 took flight. Constitution benches have averaged at just about eight a year in the last 10 years as opposed to the 100 odd five judges or larger benches a year in the 1960s. Nick Robinson captures this facet perfectly when he says that an “Indian Supreme Court” is in many ways a misnomer for the Court speaks through its various benches and not in a single voice like the Supreme Court of the U.S. Robinson calls it a “polyvocal court” where every bench has a different interpretation of law when compared to another bench. The polyvocality of the Court has repercussions for the quality of the jurisprudence as well as the manner in which litigants (and lawyers) see the Court.
The Lower Courts and Lawyers
The problem of inconsistency in decision-making manifests itself the most for the lower courts. The doctrine of precedent is dealt a severe blow for both High Courts and lower courts are left confused as to which of the various pronouncements on a particular question of law given by the Court are they meant to follow. Matters relating to levy of entry tax have been the subject of widely differing opinions by various benches of the Court. In two recent judgments, while the High Court of Calcutta held entry tax to be unconstitutional, the Allahabad High Court upheld the constitutionality of the concerned Uttar Pradesh entry tax legislation in a writ petition filed by the Indian Oil Corporation Ltd. Owing to the widespread confusion about the constitutional validity of entry tax, the Court has referred the interpretation of the provisions of Part XIII to a five-judge bench in Jaiprakash Associates Ltd. v. State of Madhya Pradesh.
Lawyers stand to gain most out of this situation when they try to tailor their arguments to suit a particular bench of judges. They might want to try their luck with a different set of judges in order to get favourable relief and would not mind arguing the same or similar matter before multiple benches. In the process, not only do they add to the pendency of cases but also put a huge financial burden on the litigants. Litigation then becomes a trade-off between various benches and wherever a suitable order can be procured becomes a safe haven for the lawyers. This is also tied to the capacity of a litigant to pay for an expensively-priced lawyer and has disturbing repercussions for differently placed litigants who may not be able to move beyond one division bench for want of resources. At stake is not only the interest of the litigant but also the indelible blot rendered on the institutional legitimacy of the Court. The Court then becomes a hunting ground for lawyers to look for the bench that would be most likely to address their vested interests. Lawyers then tend to appeal more to individual judges than the Court as an institution.
Essentially, this acts as an external constraint on the lower courts for they are bound not so much by the legal principle established by the Court but the predispositions or sensibilities of individual judges. The constraint is also largely influenced by the dynamics between the bar and the bench where it is highly likely that the Court may be more influenced by a senior counsel with a long standing as compared to their junior colleagues. In such an instance, legal and constitutional principles may be relegated to the backseat. Lower courts land in a predicament of sorts insofar as which division bench decision on a particular matter they are expected to follow.
Pendency and Constitution Bench Decisions – A Chicken and Egg Story
While multiple pronouncements on a single question of law form one part of the problem, there is the larger difficulty of a single issue being argued on different occasions without arriving at finality. So while pronouncement by a Constitution bench is the inevitable end, it is reached only after adding substantially to the backlog of cases. The euthanasia plea and the question of the interpretation of Articles 15(5) and 21A of the Constitution are cases in point where, probably, adjudication by a Constitution bench in the first instance would have dispensed with the need for a second look.
On the other end, the argument cited by judges for not sitting on Constitution benches is the backlog of cases facing the Court which makes it inevitable for them to sit in benches of 2-3 judges so as to dispose of maximum number of cases. The oft-cited reason for not constituting enough Constitution benches is that the Court has taken too much on its plate by not turning away any litigant and entertaining all kinds of petitions/applications that come before it. Virtually every case, irrespective of whichever is the court of first instance, culminates at the Supreme Court and hence, there is no aspect of law that is not litigated upon therein. Unlike the Constitutional Courts of, let’s say Germany or South Africa, our Supreme Court has now become a court of appeal which has tasked itself with correcting the errors in the judgments of the High Courts or other tribunals and taking up routine matters. Thus, the pendency/backlog and the Constitution bench problems are part of the chicken-and-egg-story.
The Court was again faced with the question of the constitutionality validity of certain provisions of the Right to Education Act, 2009 (RTE) in Pramati Educational and Cultural Trust and Ors. v. Union of India and Ors which reopens the issue of the Court constituting too few Constitution benches thereby exposing itself to doubts about the consistency of its jurisprudence. The Court seems to have subtly admitted to this folly and this is evident by the fact that the issue of legalising euthanasia has been referred to a five-judge Constitution bench in view of the inconsistent opinions and the important question of law involved in this issue which now requires a clear enunciation.The Court was categorical about the fact that Aruna Ramchandra Shanbaug v. Union of India, a division bench decision, was marred with certain inherent contradictions. A case involving a substantial constitutional question that could have been decided and disposed of in the prior instance will again be litigated upon consuming more time of the Court.
The necessity for Constitution benches precedes the need for setting up more of them. Constitution benches decide on matters that have an impact on rights’ questions and have a wide reach. For instance, the constitutionality of levying entry tax entails an impact on the huge amount of revenue that a tax of such nature may generate for states. Serious rights issues are involved in matters relating to the constitutionality of Article 21A, the euthanasia plea and the Naz Foundation case. The Law Commission of India (LCI) in its 229th Report, 2009, observed that constitutional adjudication entails questions of economics, politics and social policies apart from purely legal disputes thereby calling for an increase in the number of Constitution benches.
One of the problems with regard to setting up of Constitution benches is the doctrinal predicament of determining what constitutes a “substantial question of law as to the interpretation of the Constitution”. While this note would refrain from going into the theoretical aspect of what such a question would be, the author firmly believes that if the Court gives an authoritative judgment about what amounts to a “substantial question”, that would be immensely helpful in providing some level of certainty to the jurisprudence around Article 145(3).
The problem of bench structure assumes utmost importance in light of Article 141 of the Constitution. If the Court is indeed making law through its pronouncements, it becomes necessary that there is certainty and consistency in the law so made. Lon Fullerwhile specifying his eight desiderata of a legal system, in his seminal work on the morality of law, affords importance to avoiding inadvertent contradictions in the law and also requires that laws should not be changed frequently. The Court in its law-making function under Article 141 should also be subject to the same requirements. Hence, it becomes important for the Court to avoid inconsistency in its decisions to ensure that the law so made is suitable for a workable legal system.
The other oft-quoted suggestion to gauge through this issue is to constitute a separate Constitution bench that would sit throughout the year to deal only with matters of the kind mentioned in Article 145(3). The logistics for the same, as to who would preside over such bench and the likes, need to be intricately worked out in case this suggestion is indeed implemented. 754 Constitution bench matters are currently pending before the Court for disposal which warrants urgent attention.
Even though the Court is not a separate Constitutional Court, over the years it has indulged in adjudication over intensively debated rights’ questions and hence, the impact of the Court on the social, economic and political life of the citizens is immense. The purpose of referring cases involving questions of constitutional importance gets defeated if inordinate delay ensues in deciding them. While subjectivity in judicial decision-making is inevitable and can never be done away with, the setting up of a permanent Constitution bench can bring a logical end to the problem of inconsistent decisions by division benches. If these conflicting judgments are essentially meant to be referred to a larger bench in the end, a mechanism needs to be devised to identify such “substantial questions” and refer them to a Constitution bench in the first instance itself. Considering the fact that satisfactorily disposing of constitutional matters can take a few months, it makes much more sense to constitute a separate permanent Constitution bench devoted entirely to matters of the nature mentioned in Article 145(3) and which does not have to entertain routine matters. Revamping the structure of the Court with regard to its Constitution benches would also encompass a reassessment of its constitutionally mandated role within the scheme of the government. The 229th Report of the LCI envisages a permanent Constitution Bench/Division of the Court in Delhi with four Cassation Benches to hear appeals from the separate Northern, Eastern, Southern and Western regions/zones. While we can hold the thought about the Cassation Benches for a while, a permanent Constitution Bench with its seat in Delhi can be looked forward to in the near future.
This is not to say that all conflicts with regard to constitutional questions would vanish with the establishment of a permanent Constitution bench. Entry tax cases and matters relating to interpretation of Part XIII of the Constitution have shown that even Constitution bench decisions are subject to change with the passage of time and the change in the composition of the bench. Having said that, a Constitution bench raises the presumption that the issue has been deeply deliberated upon and, unlike multiple division bench pronouncements, is not an exercise in inconsistency. Also, the Constitution being a lengthy and dynamic document can do with an intensive reading by eminent judicial minds of the country. At present, a separate-but-permanent Constitutional bench seems like a pragmatic approach in light of the huge pendency of cases. Hence, our preoccupation should be with increasing the volume of constitutional jurisprudence coming out of the Court.
Ritwika Sharma is a Junior Research Fellow at an independent think-tank in Delhi.