The Supreme Court is not only the apex court but also the custodian of the Indian Constitution, which obligates it to protect the fundamental rights and liberties of the citizens. And in the event of arising of any significant question of law, which necessitates interpretation of provision/s of the Constitution, a Bench of minimum of five judges of the Supreme Court, called a Constitution Bench, is constituted.
Constitution Benches in India have an illustrious history; and over the years, some of India’s landmark cases have been decided before the Constitution Benches. In the Berubari Union and Exchange of Enclaves (1960), the seven-judge Bench held that the Parliament doesn’t have the power to cede a State’s territory to another country but it can do so through an amendment to Article 368. In Kedar Nath Singh v. State of Bihar (1962), constitutionality of Section 124A of the Indian Penal Code which penalises sedition was upheld by a five-judge Bench.
In Maneka Gandhi v. Union of India (1977), the Central Government impounded Maneka Gandhi’s passport in the “interest of general public” and declined to give reasons for the order. Being aggrieved, Maneka Gandhi approached the SC and the seven-judge Bench held that “personal liberty” is “of the widest amplitude” covering “a variety of rights which go to constitute the personal liberty of man” under Article 21 or right to life.
In Justice KS Puttaswamy (retd) v. Union of India, a retired judge of the Karnataka High Court, Justice KS Puttaswamy approached the SC in 2012 challenging the Constitutional validity of the Aadhaar scheme. Subsequently, in 2017, a nine-judge Bench of the SC upheld the right to privacy as a fundamental right guaranteed under the Constitution. The court held that right to privacy is intrinsic to an individual’s ability to exercise bodily autonomy but even then it is not an “absolute right”.
Article 145(3) provides for the setting up of a Constitution Bench. It 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.
Constitution Benches can also be constituted in cases where: (i) two or three-judge Benches of the SC have delivered conflicting judgments on the same point of law; (ii) if a subsequent 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; (iii) a larger Bench can overrule the pronouncement of a five-judge Constitution Bench and it may refer the matter to a larger Bench of seven judges. However, for this to happen, first a five-judge Bench must be convinced that the previous position was erroneous.
Interestingly, nowhere has it been determined so far as to what constitutes “substantial question of law” that “involves Constitutional interpretation”.
Normally, cases are listed before a two or three-judge Bench called a Division Bench and, therefore, Constitution Benches are rarely constituted to deal with Constitutional matters or matters of considerable significance. The largest Constitution Bench so far was that of 13 judges headed by the then CJI SM Sikri constituted in the case Kesavananda Bharati v. State of Kerala, wherein the basic structure doctrine was propounded. In the absence of any clear guideline, it is the sole discretion of the Chief Justice of India, the master of the roster, to decide which case will be heard by a Constitution Bench, its number and composition.
When the Supreme Court first started functioning in 1950, it had a total strength of eight judges. However, about 13% of the court’s decisions came from a five or larger Bench in the 1950s. But with passage of time, as the clog in judiciary became a demonic bottleneck. The number of Constitution Benches was soon reduced. The strength of the Supreme Court has been enhanced by the Parliament from 11 in 1956 to 34 in 2023, but there has been a marked decline in the number of Constitution Benches. The number of Constitution Bench matters disposed of by the court since 1950 has reduced significantly. According to reports, between 1950-59 and 1960-69, the Supreme Court disposed of 440 and 956 such cases, respectively. On the contrary, from 2020 to 2023, only 19 Constitution Bench cases have been decided by the Supreme Court and currently 29 Constitution Bench cases are pending.
Constitution Benches are crucial for evolution of Supreme Court jurisprudence and reduction in the number of such Benches is a bad omen for judiciary. With time, not only there is reduction of the number of Constitution Benches but the judgments have become lengthier and more prone to split decisions. Despite having the finest legal minds as judges of the Supreme Court, this trend perhaps is portent of the bad state of health of an overburdened judiciary mainly due to the huge backlog it faces and, therefore, is a sufficient warning bell for the stakeholders to fold their sleeves and respond.
(The writer is an advocate, Orissa High Court, Additional Central Government Standing Counsel, CAT, Cuttack Bench, Consulting Editor-Legal Affairs and Public Policy, The Pioneer, Bhubaneswar and a Distinguished Adjunct Professor of Law and Media Studies, School of Mass Communication, KIIT University. Views are personal)
