Essay: Constitution benches

INTRODUCTION
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.
II. CONSTITUTION BENCHES: COMPOSITION
In the period between 2011 and 2017, about 40 judges of the Supreme Court sat on the 22 different constitution benches. Table 4 lists the various judges in the descending order (of the number of constitution benches that they were part of). Having been part of all the 8 constitution benches during his tenure, RM Lodha CJ is ranked highest in this list. Following him are JS Khehar J, AK Sikri J and Dipak Misra J respectively.
SENIORITY AND BENCH COMPOSITION
To determine the role of seniority in the composition of these benches, I will be introducing a variable termed ‘Seniority Number’. The ‘Seniority Number’ merely refers to the seniority rank of a judge during the tenure of a particular Chief Justice. I have relied on the seniority ranks that are provided in the ‘List of Supreme Court Judges’ in each volume of the Supreme Court ‘ Court News [the relevant editions of Supreme Court ‘ Court News have been provided in Annex 9]. For instance, during his tenure, TS Thakur CJ was the senior-most judge and has a Seniority Number of 1. DY Chandrachud J, ranked 27 on the list of judges , has a Seniority Number of 27. Naturally, the senior judges have lower Seniority Numbers and vice versa. I have provided a list of all judges in the respective CJI tenures and their corresponding Seniority Numbers in Annex 4.
In this method, it becomes possible to numerically study seniority in bench composition. The average Seniority Number of each constitution bench is obtained by the sum of all Seniority Numbers of the respective judges, divided by the total number of judges on that bench. In a similar fashion, the average Seniority Number during each CJI’s tenure can also be determined. I will be using arithmetic mean and standard deviation to understand this data. While the arithmetic mean conveys the average Seniority Number, it does not entirely suffice for understanding bench composition. In this regard, standard deviation measures the deviance of each value from the arithmetic mean, helping establish a general range in which the various values lie. In this study, standard deviation becomes useful to understand how bench composition is spread out between the senior-most and junior-most judges. I have provided the calculation of case-wise arithmetic mean and CJI-wise standard deviation of Seniority Numbers in Annex 4.
In the period between 2011 and 2017, a judge on a constitution bench had an average Seniority Number of 14.11. The standard deviation is 9.56. Considering the Supreme Court strength to be 28, an arithmetic mean of 14.11 (which is approximately half of the total strength) indicates that the average bench had judges of Seniority Numbers on the two extremes, i.e. the lowest and the highest. Therefore, the average bench was composed of both the senior most judges (low Seniority Numbers) and the junior most judges (high Seniority Numbers) of the Supreme Court. A standard deviation of 9.56 affirms this conclusion that the Seniority Numbers are statistically dispersed between 4.55 (14.11-9.56) and 23.67 (14.11+9.56). This demonstrates that, on average during 2011-17, the composition of a Constitution bench was well spread out between the senior-most and the junior-most judges.
During Justice Lodha’s tenure, a low arithmetic mean points to constitution benches being composed relatively more of senior judges, compared to the other CJIs’ tenures. From Lodha CJ’s tenure, the trend has been on the upward side with relatively more spread out benches in terms of seniority of the judges. Nonetheless, it is still not as spread out as it was during the tenures of Kapadia CJ and Kabir CJ. Higher arithmetic means (18.08 and 17.6 respectively) and standard deviations (11.54 and 10.95 respectively) mean that the Seniority Numbers were much spread out during their tenures. This demonstrates that, during the tenures of Kapadia CJ and Kabir CJ, the constitution benches comprised of more junior judges relatively compared to the tenures of Chief Justices Lodha, Dattu and Thakur.
ROLE OF THE CHIEF JUSTICE
The Indian Supreme Court is a Chief Justice-dominated court, where the Chief Justice decides the composition of benches, including the constitution benches. Robinson’s study reports that the Chief Justice has sat on about 77% of all Constitution benches until 2009. In the 2000s, the Chief Justice sat on about 60% of the Constitution benches. As demonstrated, this trend does not seem to have been altered in the period between 2011 and 2017. Of the 22 benches surveyed, the Chief Justice sat on 86.36% (19 out of 22) of the benches.
GENDER
In the period between 2011 and 2017, only three women judges, i.e. Gyan Sudha Misra J, Ranjana P. Desai J and R. Banumathi J, served on the Supreme Court. Of these, R.P. Desai J and Banumathi J have sat on two Constitution benches each. Any improvements in gender diversity on Constitution benches will have to await improvements to the gender diversity of the Supreme Court in the first place. However, merely to emphasise on the diversity problem of the Supreme Court, it must be noted that only 18.18% (4 out of 22) constitution benches had at least one female judge on the bench, in comparison to 100% (all benches) having at least one male judge.
PARENTAL HIGH COURT
Apart from the three Judges who were directly elevated to the Supreme Court from the Bar, the 37 other judges surveyed have spent a considerable number of years serving as Chief Justice/puisne judges on the various High Courts. I have allotted to each of these judges a ‘Parental High Court’ on the basis of the High Court where they served for the longest duration. The results have been tabulated in Table 4 above.
From Table 7, it can be seen that the highest number of judges on the constitution benches came from the Bombay High Court, the Delhi High Court and the Punjab & Haryana High Court. Surprisingly, only two judges from the Calcutta High Court and the Madras High Court sat on these benches. However, more insightful information can be gathered from the next column, ‘Number of benches’. This variable ‘Number of benches’ measures the number of constitution benches between 2011 and 2017, where the bench comprised of at least one judge from a particular high court. Naturally, the Bombay, Delhi and Punjab & Haryana High Courts are at the top of the table here also.
The last column indicates the same variable, ‘Number of benches’ in percentage terms. In this regard, it can be seen that at least one Bombay/Delhi High Court judge sat on 72.72% of all constitution benches in the period between 2011 and 2017. However, one reason for the high percentage for Bombay High Court judges is because of Kapadia CJ and Lodha CJ. Both of them were from the Bombay High Court and sat on all of their constitution benches (13 in total).
Madras 2 4 18.18
Allahabad 1 1 4.55
Gujarat 1 3 13.64
Patna 1 2 9.09
BACKGROUND
In Table 4, I have also compiled each surveyed judge’s background in terms of four factors: family background in the legal profession; experience in the lower judiciary; direct elevation to the Supreme Court from the Bar; experience as government lawyer. With respect to family background, I have included only those instances where the judge’s previous generations had lawyers/judges in close familial relationships. With respect to experience as government lawyer, I have included only those experiences as either solicitor general, additional solicitor general, advocate general, additional advocate general, government pleader, public prosecutor, standing counsel for central/state government/governmental departments/bodies.
In the period between 2011 and 2017, 40% of all judges that sat on the Constitution benches had a family background in the legal profession. This background ranged from a past Chief Justice of India, such as with DY Chandrachud J to lawyers in district courts, such as with J. Chelameswar J. Interestingly, SK Singh J, in Jindal Stainless v. State of Haryana discussed and disagreed with the views expressed by his maternal grandfather, S.B. Sinha J in the Atiabari case.
Further, only one of these 40 judges has had prior experience in the lower judiciary as a district judges, i.e. R. Banumathi J. I have excluded Swatanter Kumar J. from this head, as he served only for a brief period of eight months as Additional District Judge in Himachal Pradesh. It is also important to note that all the three judges, who were directly elevated to the Supreme Court from the Bar in the period between 2011 and 2017 [RF Nariman J, UU Lalit J, L Nageswara Rao J], have sat on Constitution benches. Further, of the 40 judges, 25 of them have had previous experience as government lawyers.
III. CONSTITUTION BENCHES: FUNCTIONING
VOTING PATTERNS
In the period between 2011 and 2017, 63.64% (14 out of 22) of the cases consisted of unanimous judgments. There were 4 judgments with separate but concurring opinions. Only 4 judgments (18.18%) had dissenting opinions. In 2009, Robinson et al had noted that dissenting opinions might become likelier owing to the fewer Constitution bench matters being heard. This research demonstrates that dissenting opinions in Constitution benches were few and far between in the following seven years. Further, during SH Kapadia CJ’s tenure, all 5 constitution benches delivered unanimous judgments, without any separate concurring or dissenting opinions.
Robinson et al had also found that historically the Chief Justice was 6.5 times less likely to be in dissent compared to the other judges, and has dissented in only 10 constitution bench decisions between 1950 and 2009. Gadbois, in his research, had found that K Subba Rao J had dissented in about 48 judgments as a puisne judge. However, during his tenure as the CJI for nearly 10 months, K Subba Rao CJ had never dissent in a judgment. Remarkably, the Chief Justice has never been part of the dissenting opinion on the constitution benches between 2011 and 2017.
AUTHORSHIP OF JUDGMENTS
In the surveyed period, Madan B. Lokur J authored the most number of opinions on these constitution benches, i.e. 4. All of his opinions were separate concurring opinions. Lodha CJ has authored the highest number of unanimous judgments, i.e. 3. Table 10 contains details of number of opinions authored by the respective Chief Justice on the constitution benches during their time at the helm. The Chief Justices wrote 31.82% of the unanimous judgments on constitution benches in the period between 2011-17. This number is slightly higher than the historical average of Chief Justices writing 21% of the majority opinions on constitution benches between 1950 and 2009.
TIME TAKEN FOR DISPOSAL
For the period between 2011 and 2017, I have calculated the time taken (in days) from the decision/order referring the matter to a constitution bench to the judgment itself. The data has been tabulated in Annex 5.
The case that took the longest time from referral was Krishna Kumar Singh v. State of Bihar, which took 4555 days (approx. 12.5 years). The case that took the shortest duration was Mohd. Arif v. Registrar, Supreme Court, which took only 131 days from the referral decision. On an average, a case took 1658.78 days (approx. 4.5 years) from the time of referral to a constitution bench. Out of the 18 cases, 50% (9) took more than 2 years from the time of referral for the judgment. This trend is particularly problematic as constitution benches are expected to resolve important questions of constitutional law definitively. In turn, this definitive statement of law is expected to hold precedential value, and prevent future disputes from arising. A fine illustration of this problem is the case on entry taxes (Jindal Stainless v. Haryana), wherein hundreds of appeals from the various High Courts could not be resolved until the 9-judge constitution bench clarified the position in law definitively.
WINNING PARTY
Robinson’s study reports that the recent trend with respect to constitution benches was that appellant/petitioner won ‘just as much or slightly more than’ the respondent. The study also predicted that it would become more difficult to identify a winning party often, owing to the increasing complexity of the cases before constitution benches.
The data collected in this study affirm the trends noted by Robinson et al. The data of winning party in each case has been tabulated in Annex 2. To summarise the data, the appellants/petitioners (non-state actors) won in 45.45% (10 out of 22) cases. The respondent (state) was successful in 31.81% (7 out of 22) cases across constitution benches between 2011 and 2017. In five judgments, mostly public interest writ petitions, no winning party could be clearly identified.
At this point, it must also be noted that the binary idea of a winning party may not be entirely accurate with respect to these constitution bench matters. I have attempted to present winning parties on the basis of the party that was successful with respect to the dominant issues of the case.
LENGTH OF THE JUDGMENTS
Length of the judgment has been recognised to be a measure of the judgment’s complexity. In the period between 2011 and 2017, the average length of a constitution bench judgment is 78 pages. The judgments range from 590 pages on the one hand to merely 3 pages on the other. A complete tabulation of each judgment and its length has been detailed in Annex 6. Of the surveyed cases, 90.48% of the cases (19 out of 21) are longer than 10 pages. In contrast, the data collected by Robinson demonstrated that only 10% of the constitution bench decisions between 1950s and 60s were more than 10 pages long. Robinson’s data points to a trend of increasingly longer judgments being delivered by constitution benches. This survey confirms that this trend has continued in the period between 2011 and 2017 as well.
Naturally, the judgments with two or more opinions (concurring and dissenting) are longer than the unanimous judgments. The average length of judgment with two or more opinions is 187.43, while the average length of unanimous judgments is merely 23.5. Table 11 ranks the subject categories in the decreasing order of their respective average judgment length and average opinion length. This Table also affirms the continued complexity of the Supreme Court’s decisions concerning the basic structure test, with an average judgment length of 278 pages and opinion length of 84.83 pages.
Table 11: Subject-wise length of judgments
FOREIGN CITATIONS IN JUDGMENTS
The constitution bench decisions and the number of foreign citations have been tabulated in Annex 7. In the period between 2011 and 2017, 71.43% of the constitution bench judgments (15 out of 21) cited judgments of foreign courts, including international tribunals. This is comparable to the number of such judgments in the 1950s, where 71% of the judgments cited foreign decisions. This is higher than such number in the 2000s, when 61% of the judgments cited foreign decisions.
These constitution benches cited a total of 113 foreign decisions during 2011-17. The decisions of the UK Courts/Privy Council were the most cited, closely followed by decisions of US Courts. While I do not seek to analyse the utility of citing foreign decisions, it is important to mention the use of International Court of Justice (‘ICJ’) decisions by Justice Khehar in Nabam Rebia v. Deputy Speaker [(2016) 8 SCC 1]. While discussing the actions of the Governor of Arunachal Pradesh, Justice Khehar relies on excerpts from the two ICJ decisions to explain arbitrariness and rule of law. With due respect, it must be noted that such excerpts and citations only tend to complicate judgments and hamper clear reading of precedents.
Table 12: Number of foreign citations according to jurisdictions
IV. CONSTITUTION BENCHES: JUDICIAL IDEOLOGIES
Judicial decision-making has been long recognised as ‘political behavior’ that ought to be systematically analysed, starting from the works of scholars such as Glendon Schubert in the United States. In one such early study on the Indian legal system, Professor George Gadbois systematically analysed all decisions of the Supreme Court from 1950 to 1968, to understand judicial behaviour. Constitutional law cases often lie in the penumbra with wide ranging outcomes. A perusal of the 22 cases chosen for this study will reveal that a number of them require judges to make choices between alternative policy positions. For instance, these positions include balancing the right to education and the right to trade (of schools), establishing Tribunals vis-‘-vis maintaining judicial independence, judicial appointments and the role of the executive, etc. In pursuance, I will examine the surveyed decisions that present a dispute between an individual/legal entity and the State in terms of their judicial ideologies. By doing so, we will be able to gain scant but useful insight into the working of the judiciary in recent times.
In this process, I will be borrowing the four ideological labels used by Gadbois in his work. The labels he used to classify Indian Supreme Court justices were:

• Modern Liberal: Aversion towards any violation of civil liberties, while tolerating violations of economic freedoms
• Modern Conservative: Aversion towards any violation of economic freedoms, while tolerating violations of civil liberties
• Classical Liberal: Aversion towards any deprivation of civil liberties and economic freedoms [more suitably labelled ‘libertarians’]
• Classical Conservative: Inclination towards accepting deprivation of civil liberties and economic freedoms under the authority of the State

Methodology:
While past empirical studies have laid emphasis on ‘individualistic’ behaviour through solo dissents and opinions as opposed to ‘collective’ behaviour through unanimous and collective decisions, I will not be drawing any such distinctions here owing to the limited number of solo decisions available.
Instead, all votes (whether collective or individual) will be treated on par. Each judge will be accorded a Civil Liberties Score (‘CLS’) and an Economic Freedoms Score (‘EFS’), by evaluating the consequences of that decision (whether concurring or dissent). It must be noted that each score is an external judgment based on the decision’s consequence, and not on the inner meaning of the judgment. Every decision that furthers civil liberties from a bench, which a judge is part of and does not dissent from, will accord +1 point to that judge. Similarly, any decision that deprives civil liberties from a bench, which a judge is part of, will accord -1 point to that judge. In cases of economic freedoms, every decision that protects economic freedoms will accord the judge +1 point and every decision that deprives economic freedoms will accord the judge -1 point. The cumulative of all civil liberties ‘ points will give a judge’s CLS, and the cumulative of all economic freedoms ‘ points will give the judge’s EFS. For example, Justice Khehar has delivered four judgments that protect civil liberties (+1*4=4) and one that restricts civil liberties (-1*1=-1). Hence, his CLS will be +3. Where a judge does not have any decisions dealing with either economic freedoms or civil liberties, she will be accorded a ‘zero’ score under that head. From the relevant cases, the following scores could be tabulated for the judges.
On the basis of the CLS and EFS, I have plotted each judge’s position on the ideology graph (following). It must be noted that owing to the limited data available from 22 decisions, these ideological positions may not be accurate reflections of their ideological stances in all individual/legal entity versus State cases. Owing to very few cases dealing with economic freedoms, most judges’ points are also located on the Civil Liberties axis (X-axis). Despite the limited data, this graph, nevertheless, is a reasonably accurate portrait of judicial ideologies in constitution benches between 2011 and 2017.
[The initials that each judge had been assigned in Table 13 represent that judge. An enlarged image of the graph has been provided in Annex 8.]
Note:
It is my duty to notify the possibility of coding biases in this process. While coding these decisions, apart from relying on Gadbois’s work, I have also followed the process similar to that of the US Supreme Court Judicial Database (USSCJD), where judgments are coded as ‘liberal’ or ‘conservative’ by picking out the dominant issue in a case and coding it based on issue-specific guidelines. Research has demonstrated that such coding could lead to ‘odd’ results, and suffer from the coders’ biases. Further, it must be noted that the graph does not contain comprehensive ideological positions of the judges owing to the limited data set being studied. This graph does not also completely depict their ideological positions in all individual versus State matters, in the absence of their other smaller bench decisions addressing constitutional questions.
V. CONCLUSION
To sum up, the following major conclusions can be drawn from this research:

• The historical decline in number of constitution benches has continued in the period between 2011 and 2017.
• In this period, majority of the constitution bench cases were matters appealed to the Supreme Court.
• Constitutionality of statutes and constitutional amendments are the dominant subject matters before constitution benches in this period.

Bench Composition (2011-17):

• On average, constitution benches are composed of both the senior-most and the junior-most.
• The Chief Justices, having sat on 86.36% of constitution benches, dominate these benches.
• Lack of gender diversity on the Supreme Court has translated into gender diversity on constitution benches also.
• Judges elevated from the Bombay, Delhi and Punjab & Haryana High Courts dominate the constitution benches.
• Majority of judges on constitution benches have a family background in the legal profession and/or have experience as government lawyers.
• The period between 2011 and 2017 witnessed multiple unanimous/concurring judgments, with very few dissenting opinions. Remarkably, the Chief Justice was never part of the dissenting opinion.
• The average time taken for a case from its referral to a constitution bench to its disposal is about 4.5 years (2011-17).
• Non-state actors have been successful in about 45.45% of the constitution bench cases (2011-17).
• The average constitution bench judgment is 78 pages long (2011-17).

The primary concern arises due to the decline in constitution benches, as two or three judge benches are now addressing substantial questions of constitutional law. For instance, such smaller benches delivered the recent judgments of the Supreme Court imposing a ban on liquor shops along highways and upholding the constitutionality of criminal defamation law . In the Constituent Assembly Debates, Dr. Ambedkar seems to have stated that a bench of at least 5 judges would hear every constitutional question before the Supreme Court. This definitely has not been reflective of the Court’s practice nor does it seem to be feasible. The perceived decline in the quality of its constitutional jurisprudence has led senior advocates such as late T.R. Andhyarujina and K.K. Venugopal to argue for the establishment of separate court of appeals and require the Supreme Court to take up only important constitutional and other matters. While this is a matter of policy beyond the scope of this paper, it is imperative that the Supreme Court at least clarifies the scope of Article 145(3).
The role of the Chief Justice in allocating benches to the various judges deserves to be reflected on. This becomes crucial in light of the rarity of dissenting opinions, as demonstrated in this study and by Robinson et al. This indicates a possibility that the Chief Justice may choose judges who hold similar opinions. Random allocations of benches may help improve transparency and constrain the Chief Justice’s dominant role. Further, the number of weekly sittings of constitution benches can be increased so as to reduce the time taken between the referral of a case to a constitution bench and its disposal. In this regard, TS Thakur CJ suggested that constitution benches sit additionally for two hours each on Mondays and Fridays. Similarly, a number of such measures need to be adopted to improve the working of our constitution benches and generally enhance the quality of India’s constitutional jurisprudence. This paper is merely a small step towards understanding some of the problems facing constitution benches.