The Constitution mandates that at least five judges of the Supreme Court sit in order to decide cases involving ‘substantial question of law as to the interpretation of this Constitution’. Popularly termed ‘constitution benches’, these benches have delivered some of the most important and landmark judgments such as Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], Indra Sawhney v. Union of India [AIR 1993 SC 477], etc. In this seminar paper, I study these constitution benches and their judgments in the period between 2011 and 2017 empirically. By doing so, useful insight into the composition and functioning of these constitution benches can be gained. Further, I also analyse judicial ideologies on these constitution benches.
This paper proceeds in five parts. Part I provides an outline of constitution benches in the survey period, and analyses the cases in terms of the Supreme Court’s jurisdiction and subject categories. Part II analyses the composition of these constitution benches by analysing judges’ seniority, gender, background and parental High Court, in addition to the role of the Chief Justice. Part III studies the functioning of these constitution benches: voting patterns, authorship of judgments, time taken for disposal, winning party, length of the judgments and foreign citations. Part IV analyses the judicial ideologies on these constitution benches. The paper concludes in Part V.
Lastly, the research presented here draws from and builds on previous work on the Supreme Court. In particular, Nick Robinson et al studied constitution benches of the Supreme Court from 1950 to 2009. This paper draws from their work, and also attempts to test their conclusions using data from the period between 2011 and 2017. Further, this paper also draws from the work of George H. Gadbois Jr., particularly, his biographical portraits of Indian Supreme Court judges and his analysis of their judicial behaviour.
Research methodology
It is a fundamental principle that empirical legal researchers should strive to collect as much data as that exists. However, where such collection of data is not possible, it is important to use selection mechanisms that avoid selection biases. Selection mechanisms appear at three levels in this seminar paper.
First, owing to time and resource constraints, I selected judgments from a specific time period for analysis. As there exists a comprehensive study of constitution bench decisions until the last decade by Robinson et al, I chose to study only constitution bench decisions of this decade, i.e. from 2011 till 1 May 2017. Second, I have tracked every Supreme Court judgment with 5 or more judges between 2011 and 2017 from the reported judgments in the print version of Supreme Court Cases (SCC). I found a total of 53 judgments with 5 or more judges. All the cases have been tabulated in Annex 1.
Third, there are no definitive criteria to identify ‘constitution bench’ matters in the text of Article 145(3) of the Constitution or in any Supreme Court decisions. Informally, all benches with five or more judges have been called constitution benches. Robinson et al differ from this approach and focus only on cases that fulfil the conditions under Article 145(3). In this process, Robinson et al consider every bench with 5 or more judges that adjudicate on any constitutional issue as constitution bench matters. Further, they also include matters of presidential reference, election matters and inter-governmental cases brought under Article 131. On the other hand, this paper regards only those cases referred under Article 145(3) with a ‘substantial question of law as to the interpretation of the constitution’ as constitution bench decisions. To avoid selection bias, I have selected only those cases where smaller-bench referral orders/judgments themselves specifically mention Article 145(3) or the presence of ‘substantial question of law as to the interpretation of the constitution’ in the case. A digest of these constitution bench cases has been provided in Annex 2.
Lastly, to study the backgrounds of the judges, I rely primarily on the official biographies available on the Supreme Court website. Where required, I have also relied on authentic newspaper sources. The relevant aspects of the biographies of the judges have been detailed in Annex 3.
I
CONSTITUTION BENCHES OF THE SUPREME COURT
In the period between 2011 and 2017, there were 22 identifiable constitution bench cases. Table 1 provides the number of constitution bench cases according to the year of the judgment, and according to the respective CJI’s tenures. On an average, there have been 3.39 constitution bench decisions per year, and 3.66 constitution bench decisions per Chief Justice. This is lower than the average of 6.5 constitution bench decisions per year, calculated by Robinson et al. One reason is that the present study has fewer cases owing to different selection mechanisms compared to Robinson’s study. However, this research does affirm Robinson’s finding that the number of constitution benches has consistently declined since the 1960s.
Nonetheless, it must be noted that there was a comparable increase in the number of constitution bench decisions in 2014 during Lodha CJ’s tenure. This is so despite Lodha CJ having a relatively short tenure of only about five months.
UNDERSTANDING REFERRALS TO CONSTITUTION BENCHES
The Constitution does not provide specific criteria, the fulfilment of which will necessarily lead a case to a constitution bench. Further, as a rule of propriety, two-judge benches can refer cases only to a three-judge bench, which in turn may refer the case to a constitution bench. As a result, most constitution bench cases are a product of two levels of judicial screening, if not at least one. Hence, it becomes imperative to analyse the nature of cases that get referred to constitution benches, i.e. on the basis of the Supreme Court’s jurisdiction in that case, and the subject matter/topic of that case.
JURISDICTION
In the period between 2011 and 2017, most of the cases referred to constitution benches were matters that were appealed. Out of the 22 judgments in total, 45.46% of them (10 out of 22) were matters appealed to the Supreme Court. This inference is not in line with the historical trend of more than 60% of constitution bench cases being matters that were appealed. Around 31.81% of the matters were through writ petitions under Article 32. In 13.64% of the matters, the case was both appealed and brought through writ petition before the Supreme Court. Table 2 contains the number of cases under each jurisdictional head.
SUBJECT MATTER CATEGORIES
For the purpose of classifying cases under various subject categories, I selected the dominant issue in each case and classified it accordingly. However, I have not followed the 47 subject matter categories found in the Supreme Court’s ‘Practice and Procedure Handbook’, as those general categories do not adequately fulfil the purposes of a specific inquiry into constitution bench cases. Further, cases often have more than one subject matter related to the dominant issue. Therefore, it should be noted that Table 3 contains overlapping data.
In Table 3, it can be seen that 27.27% of the constitution benches between 2011 and 2017 dealt with constitutionality of statutes, while merely 9.09% of the constitution benches dealt with the validity of executive orders. Three constitution benches, representing 13.64% of the total, dealt with the validity of constitutional amendments.
* I have not included those cases within this topic, where the question of validity of statute was presented alongside the validity of a constitutional amendment. In all of those cases, the validity of the statute suffered the same fortune/misfortune as the constitutional amendment itself.