CHAPTER -IV

THE CONSTITUTION BENCHES OF THE

SUPREME COURT OF INDIA

The most important function of the highest Court of the land is the
constitutional adjudication. As a Constitutional Court, the Supreme Court of India
interprets the Constitution based on the prevailing circumstances and makes it a living
document. It also exercises its power of constitutional review, where Statutes are held
to be unconstitutional if it violates any provision(s) of the Constitution. In addition to
that, it also reviews over the constitutional amendment(s) and keep the basic structure
of the Constitution intact without being harmed by the legislature. There exist several
distinctions between the adjudication of ordinary matters and constitutional matters.
It is important to understand the procedural requirement besides the nuances of the
substantive process as in constitutional adjudication. Unlike the U.S.,1 the Supreme
Court of India sits in fragmented Benches for disposing of cases of varied subject
matters. There is no mandatory rule imposed by the Supreme Court of India to sit as a
unified Bench to decide all cases. The Constitution permits the Supreme Court to lay
down rules of procedure to hear appeals. 2 Nevertheless, when a question involves
constitutional interpretation, it should be decided by a Bench not less than five, and it
is a mandatory constitutional requirement.3 It is being said that since the late 1960s,
the number of Constitution Bench is falling particularly in the last decade, the
Supreme Court has constituted lesser number Constitution Benches and as delayed in
the disposal of constitutional matters due to the increasing of ordinary appeals in the
Supreme Court. In this context, the researcher has analyzed the increase of appeals
and appellate jurisdiction of the Supreme Court in the previous chapter and made a
valiant attempt in analyzing the Constitution Bench matters from 1950 to 2014. The
data has been put to different analyzation to know the exact disposal rate of
Constitution Benches under different dimensions. Besides this quantitative analysis,
the researcher ventured into the procedure and process of setting up of Constitution
Benches of the Supreme Court and the powers and functions of the CJI in it. The
plethora of cases and request for information under Right to Information Act, 20054

1
The U.S. Supreme Court sit as en banc, a unified bench of nine Judges.
2
INDIA CONST. art. 145 cl. 1 § b. See Annexure B, at 302.
3
INDIA CONST. art. 145 cl. 3. See Annexure B, at 302.
4
Act No. 22 of 2005.

123
has been analyzed to have a clear picture of the importance of determining
‘substantial question of law as to the interpretation of the Constitution’ and the
process of reference to the Constitution Bench by a smaller Bench. The present
chapter will give a clear picture of the plight of constitutional adjudication by the
Supreme Court of India.

4.1 SOURCE AND RELEVANCY OF THE DATA:

It is significant to mention the source of data collected by the researcher and the
relevancy of it. The researcher has put certain questions on 21/02/2013 to the
Supreme Court registry relating to the setting up of the Constitution Benches and the
discretion of the CJI in the functioning of the Constitution Benches. The data sought
is from 01/01/2001 to 31/12/2012. The questions are as follows:
(i) How many cases or matters were referred by the High Courts (with referral date)
to the Supreme Court from 01.01.2001 to 31.12.2012 stating that the case or
matter relate to the substantial question of law as to the interpretation of the
Constitution?

(ii) How many cases or matters were referred by the Supreme Court Benches (with
referral date) to the Chief Justice of India from 01.01.2001 to 31.12.2012 stating
that the case or matter relate to the substantial question of law as to the
interpretation of the Constitution and require larger Bench for adjudication?

(iii) How many cases or matters were referred by the Supreme Court Benches (with
referral date) to the Chief Justice of India from 01.01.2001 to 31.12.2012 to set
up larger bench in order to reconsider the earlier Constitution Bench decision?

(iv) How many cases or matters were referred by the President of India (with referral
date) to the Supreme Court under advisory jurisdiction from 01.01.2001 to
31.12.2012?
(v) How many cases or matters, the Chief Justice of India himself constituted the
Constitution Benches from 01.01.2001 to 31.12.2012 upon the arguments made
by the Advocates?

(vi) In the above query (i) to (v), when (the date, month & year) the Chief Justice of
India constitutes the Constitution Bench under Art. 145(3) of the Constitution
and the rejection thereof?

(vii) In the above query (i) to (v), whether the Chief Justice of India gave any reasons
for constituting larger Bench as well as its rejection thereof? If yes. Please
provide me the reasons.

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(viii) How many cases or matters from 01.01.2001 to 31.12.2012, the Chief Justice
constituted Constitution Benches or larger Benches?
(ix) How many cases or matters from 01.01.2001 to 31.12.2012, the Chief Justice
rejected the proposal for constituting Constitution Bench or larger Bench to
reconsider earlier Constitution Bench?

(x) In the constituted Constitution Benches from 01.01.2001 to 31.12.2012, the

period is taken by the respective Constitution Bench to dispose the case or
matter?

(xi) In the above query (i) to (v), how many Constitution Bench cases or matters
were pending before the Supreme Court till 31.12.2012?
(xii) How the Chief Justice of India picks up the judges for hearing the Constitution
Bench cases?

In the above queries, the researcher has concentrated on the aspect of ‘Time’ in
constituting as well in disposing of the Constitution Benches. But, could not get any
reply from the Supreme Court registry. Thus, the researcher has been constrained to
put the above questions5 under RTI Act. The answers are as under:

Point No. 1, 2 and 3 (i.e. Questions 1, 2 and 4 above): Information is not maintained
in the manner as sought by you.

Point No. 4, 5 and 6 (i.e. Questions 5, 6 and 7 above): Information is not distinctly
maintained in the manner as sought by you. However, Constitution Benches are
constituted as per directions and shown in the weekly/daily lists which are uploaded
on the website of the Supreme Court of India viz. www.supremecourtofindia.nic.in
with cause title and dates of listing. 6 Similarly, for the question in the second
application that ‘How many Constitution Bench cases or matters (cases or matters
posted before five judges bench or more) were pending before the Supreme Court of
India till 31.12.2013?’ the reply for this question is same as the reply made for Point
4, 5 and 6.7

5
The researcher has put three petitions under RTI Act, 2005 on 11/11/2013 to seek the information for
the above queries with certain modifications. In the above, the queries (i), (ii), (iv), (v), (vi) and (vii)
were asked as 1 to 6 in one of the petitions.
6
Letter from the Supreme Court of India Dy. No. 1690/RTI/13-14/SCI (Dec. 12, 2013) (on file with
the researcher).
7
Letter from the Supreme Court of India Dy. No. 1692/RTI/13-14/SCI (Dec. 12, 2013) (on file with
the researcher).

125
4.1.1 Analyzing the reply ‘Information is not maintained in the manner as sought
by you’:
The above reply ‘Information is not kept in the manner as sought by you’ from
the Supreme Court is highly disappointing and moreover, the weekly or daily lists of
the Supreme Court cannot be retrieved from 2001. It will be available only for the
current year or nearby. The researcher has not approached the first appellate authority
against the Order of the Public Information Officer.8 The reason was, the CIC in the
case of Shri Mani Ram Sharma v. The Public Information Officer,9 held that if the
required information was not maintained in the manner as asked for, the CPIO could
not be asked to compile the data. Similarly, the Supreme Court has held in CBSE v.
10
Aditya Bandopadhyay, as ‘At this juncture, it is necessary to clear some
misconceptions about the RTI Act. The RTI Act provides access to all information
that is available and existing. It is evident from a combined reading of Section 3 and
the definitions of ‘information’ and ‘right to information’ under clauses (f) and (j) of
Section 2 of the Act. If a public authority has any information in the form of data or
analyzed data, abstracts, statistics, an applicant may access such information, subject
to the exemptions in Section 8 of the Act. But where the information sought is not
part of the record of a public authority, and where such information is not required to
be maintained under law or rules or regulations of the public authority, the Act does
not cast an obligation upon the public authority, to collect or collate such non-
available information and then furnish it to an applicant.’11 It is equally noteworthy to
cite the recent decision of the Delhi High Court in The Registrar, Supreme Court of
India v. Commodore Lokesh K. Batra and Others,12 after the researcher had waived
his appeal remedies. In this case, the respondent sought information for certain
questions from two separate applications under RTI13 from the PIO of the Supreme

8
‘Public Information Officer’ hereinafter referred as ‘PIO’.
9
CIC/SM/A/2011/000101-AD decided on 18.07.2011.
10
(2011) 8 S.C.C. 497.
11
Id., at 533.
12
W.P. (C) 6634 of 2011 and C.M. No. 13398 of 2011 delivered on 04.12.2014.
13
In the first application, and the questions are (a) Total number of cases pending for judgments where
‘Arguments have been heard prior to 31 December 2007 and Judgments are reserved’. (b) Total
number of cases pending for judgments where ‘Arguments have been heard between 01.01.2008 to
31.12.2008 and judgments are reserved’. (c) Total number of cases pending for judgments where
‘Arguments have been heard between 01.01.2009 to 15.12.2009 and judgments are reserved’. The
second application, in the respect of the cases of the first application, ‘where arguments have been
heard prior to 22.12.2009 and judgments are reserved’ and in this context, the following information is
requested in respect of each such case as (a) Case Number; (b) Case Type; (c) Date of the case was first
admitted; (d) Date when judgment was reserved.

126
Court of India. The PIO, the petitioner, in this case, had informed the respondent that
‘the registry does not maintain the data in the manner sought for by him,’ which was
the same response as received by the researcher. The first appellate authority also
sticks to the same answer and finally, the Central Information Commission14 allowed
the appeals made by the respondent herein. However, the petitioner moved the Delhi
High Court on the several grounds15 and vehemently contended that the information
which exists and is held by the public authority but is not being compiled or kept in a
manner in which it is accessible as sought by the respondent. Further, the petitioner
pleaded that a direction can be given to the public authorities to maintain and provide
the information in a particular manner is not sustainable and beyond the jurisdiction
of the Act. The Court framed the key issue as ‘Can the CIC issue a direction for
disclosure of information in a form not maintained by a public authority? And, Could
the CIC give a direction for compiling of such information and its disclosure in
future?’ The Court, however, agreed that in so far the question of disclosing
information that is not available with the public authority is concerned, the law is now
well settled that the RTI Act does not enjoin a public authority to create, collect or
collate information that is not available with it. However, the above principle cannot
be used to deny information that is available with a public authority. In the present
case, the petitioner’s stand that it does not maintain the data ‘in the manner sought
for’ and has no obligation to provide the same to the respondent is, clearly,
unsustainable. The Delhi High Court has clearly held that though there is no
obligation on a public authority to process any information in order to create further
information as is sought by an applicant but in the present case the information is
found available with the petitioner but not in the form claimed by the respondent and
that alone will not be a ground for the petitioner to deny any information to the
respondent. This judgment delivered purely on factual grounds and depended on the
nature of the information sought by the RTI applicant. The Court did not deviate

14
‘Central Information Commission’ hereinafter referred as ‘CIC’.
15
(1) The RTI Act does not cast any obligation on any public authority to collate such non-available
information for the purpose of furnishing it to an RTI applicant and strongly relied upon the Order of
CIC in Shri Mani Ram Sharma case and Aditya case held by the Supreme Court. (2) The powers under
sub-section (8)(a)(iv) of Sec. 19 of the RTI Act cannot be stretched for creation of new record and the
words ‘maintenance and management’ under the said provision relates to the records which are
available and cannot be interpreted in a manner to include creation of information. (3) The Order of the
CIC impinges upon the power entrusted upon the Supreme Court under Art. 145 of the Constitution of
India to make suitable rules for regulating the practice and procedure of the Supreme Court by directing
the authority to maintain the records in a particular manner.

127
from the principles enunciated by the Supreme Court. At this juncture, the single
judge bench of Delhi High Court will not form as a valid precedent to be followed by
other High Courts and moreover, it is a time-consuming process for the researcher to
make a second attempt to retrieve the data by approaching all the authorities
concerned by relying on this case.

The questions relating to the powers and functions of the CJI in constituting a
Constituting Bench has been posed through another application under RTI Act. The
questions are as under:

1. Should the Chief Justice of India mandatorily set up larger Bench under Order VII
Rule 2 of the Supreme Court Rules, 1966 when the two or three-judge Bench of
the Supreme Court considers that the matter should be dealt with by a larger
Bench only?
2. Whether the judicial Order of reference to larger Bench by a three-judge Bench
binds the administrative side of the Chief Justice of India to constitute the larger
Bench?
3. Is there any occasion where the Chief Justice of India denied constituting a larger
Bench under Order VII Rule 2? If so, in how many cases or matters along with
Case Number?
4. How the Chief Justice of India picks up the judges for the Constitution Bench
cases or matters?

4.1.2 The reply from the PIO, the Supreme Court of India:
Point Nos. 1 to 4: It is beyond the jurisdiction and scope of the duties of CPIO,
Supreme Court of India under the RTI Act, 2005 to interpret the law, judgments or
orders of this Hon’ble Court or any other Court, to give an explanation, opine,
comment or advise on matters. Your request is not covered under section 2(f) of the
Right to Information Act, 2005 and cannot be accessed to. The larger Benches
including Constitution Bench matters are shown in the Terminal List and constituted
as per direction and shown in weekly/daily list which is available on the Supreme
Court website viz. www. sci.nic.in and can be accessed from there. Thus, the PIO of
the Supreme Court has relied upon the definition of the information under Sec. 2(f)16

16
Sec. 2(f) of the RTI Act deals with the definition of ‘Information’. See Annexure C, at 315.

128
of the RTI Act, 2005 and denied to supply the information relating to the researcher’s
question under RTI Act. The researcher view is that the questions posed in the
application come within the ambit of ‘information’ under RTI Act. It relates to the
opinions and advices of the CJI in constituting the Constitution Benches, which forms
part of the definition ‘information’. However, the researcher has come to know the
division Bench Order of the Madras High Court in The Registrar General v. R.M.
Subramanian and another,17 wherein, the Tamil Nadu State Information Commission
allowed the respondent no. 1 i.e. RTI applicant to peruse the entire records about his
case concerning criminal contempt as per Sec. 2(j)(i) of the RTI Act.18 But the issue
was that the State Information Commission allowed two more RTI petitions praying
for copies of the minutes of the Hon’ble portfolio judge of Pudukottai District and the
minutes of the Hon’ble Chief Justice of Madras High Court as per the Madras
Appellate Side Rules, 196519 to extract further information about the same case. The
Registrar General challenged the Order of the Tamil Nadu State Information
Commission on two grounds. 20 The Court held that to uphold the dignity and majesty
of the Hon’ble High Court being an independent authority under the Constitution of
India, some self-restrictions are to be imposed as regards the supply of internal or
domestic functioning of the Hon’ble High Court. Its office information in respect of
matters which are highly confidential in nature in as much as it concerns with the
intricate Internal Discussions and Deliberations, Notings, Jottings, Administrative
Letters took on the administrative side of the Hon’ble High Court cannot be brought
under Sec. 2(j) of the RTI Act and exempted from disclosure under Sec. 8(e)(i)(j) of
the RTI Act.21 The Court held that the RTI applicant cannot invoke the aid of clause
37 of Amended Letters Patent dealing with ‘Regulation of Proceedings’ and also
Order XII of the Rules of the High Court, Madras Appellate Side, 1965.22 The above
principles enunciated by the Madras High Court shall clearly applicable to the
researcher’s RTI application seeking information about the discretion of the CJI in

17
(2013) 5 M.L.J. 513.
18
Sec. 2(j) of the RTI Act deals with the definition of ‘right to information’. See Annexure C, at 315.
19
Order XII Rules [1] & [2] of the High Court of Madras Appellate Side Rules, 1965. See Annexure D,
at 323.
20
(1) Whether the copies sought for by the RTI applicant viz., the minutes of the Hon’ble Mr. Justice
K.K. Sasidharan and the minutes of the Hon’ble the Chief Justice may be furnished to him? Or (2)
Whether the request of the RTI applicant may be negative, as per Sec. 8 (e)(j) of the RTI Act, 2005, on
the ground that the competent authority is not satisfied that the larger public interest warrants or
justifies the disclosure of above information?’
21
Sec. 8 of the RTI Act: Exemption from disclosure of information. See Annexure C, at 315.
22
Supra note 19.

129
constituting the Constitution Benches. This made the researcher not to pursue the
matter by appealing to the first appellate authority and moreover, it is a time-
consuming process. Before venturing into Constitution Benches, it is pertinent to
analyze the practice and procedure relating to the constitution of the Constitution
Benches and the importance of the strength of the Bench in constitutional
adjudication.

4.2 THE PROCEDURE AND PRACTICE FOR CONSTITUTING

CONSTITUTION BENCHES:
By virtue of Article 145 of the Constitution of India, 23 the Supreme Court of
India can regulate the procedure as regards to constitution and composition of the
Benches for different matters besides making formal rules and guidelines regulating
practice and procedure in the Court. However, Art. 145(3) cast a mandatory duty on
the Supreme Court to constitute a Bench of minimum five Judges who are expected to
sit for the purpose of deciding any case involving the substantial questions of law
such as the interpretation of the Constitution. In consonance with the constitutional
24 25
requirement, Order VI of the Supreme Court Rules, 2013 provides for
‘constitution of division courts and powers of a single judge’. 26
The Order VI Rule 2 states that the course of the hearing of any cause, appeal
or other proceeding, the Bench (two-Judge) considers that the matter should be dealt
with by a larger Bench, it shall refer the matter to the Chief Justice, who shall
thereupon constitute such a Bench for the hearing of it. The rule prohibits the
vacation Judge sitting singly during vacation from entertaining applications for
special leave to appeal in urgent cases where interim relief is prayed for. However,
when such a petition raises a substantial question of law as to the interpretation of the
Constitution, the Bench can entertain an application under Article 32 of the
Constitution. In case if it involves a substantial question of law as to the interpretation
of the Constitution then rule nisi alone should be issued. Similarly, Rule 1 and 2 of
Order XXXVIII,27 which deals with the applications for enforcement of fundamental

23
INDIA CONST. art. 145: Rules of Court, etc. See Annexure B, at 301.
24
Previously it was in Order VII in the Supreme Court Rules, 1966.
25
Gazette of India Extraordinary, dated 27th May 2014. The Rules came into force on 19th Aug. 2014.
26
The Supreme Court Rules, 2013, O. VI: Constitution of Division Courts and powers of a single
Judge. See Annexure D, at 320.
27
The Supreme Court Rules, 2013, O. XXXVIII: Applications for enforcement of Fundamental Rights
(Article 32 of the Constitution). See Annexure D, at 321.

130
rights (Article 32 of the Constitution) also contain provisions to that effect. At this
juncture, it is significant to analyze the requirement of the mandatory minimum
strength of the Bench required for constitutional adjudication. ‘Does the size of the
Bench matters a lot for constitutional adjudication?’ or ‘Is bigger always provide a
better outcome in constitutional adjudication?’ The researcher has attempted to find
answers to the above question and produced below.

4.3 DOES STRUCTURE OF THE COURT MATTERS IN CONSTITUTIONAL

ADJUDICATION?
The structure of legislative decision making receives considerable attention,
but the legal commentators rarely consider how judicial structure might affect the
quality of the decision making. 28 Further, there is no definitive answer to the question
of how large the highest Court of land should be and the structure should it possesses
in handling constitutional cases? The structure of the highest Court in every country
varies according to its suitability to the country’s legal system. The Court may sit as
multi-panel or en banc for cases pertaining to matters relating to Constitution or
otherwise. Like India, the multi-panel Courts are functioning in U.K. (both House of
Lords and now, the Supreme Court),29 Canada (the Supreme Court of Canada) 30 and
in some other countries. Unlike India, certain Courts sit in en banc, such as the U.S.
Supreme Court, South Africa’s Constitutional Court, Supreme Federal Court of
Brazil. Undoubtedly, the success of the Court in performing its tasks depends more
on the particulars of its institutional design31 and the overall image of the Court as a
guardian institution is fostered by its structure. The Court is widely perceived as a
group of regularly revolving usually apolitical judicial experts, who provide a
backstop for other organs in fulfilling their constitutional duties or exercising their
legal functions thereby safeguarding and fostering the citizens’ rights. The size of the
Court provides an almost impersonal nature that helps foster a sense of expertise, even
though its ability to take on many cases creates a more populist image at the same

28
Michael B. Abramowicz, En Banc Revisited, 100 COLUM. L. REV. 1600, 1601 (2000).
29
The twelve member U.K. House of Lords traditionally almost always sat in panels of five, although
the new U.K. Supreme Court has recently begun hearing cases in panels of five, seven and nine.
30
It composed of nine judges but routinely sits in panels of five, seven or nine justices.
31
F. Andrew Hessick and Samuel P. Jordan, Setting the size of the Supreme Court, 41 ARIZ. ST. L.J.
645, 647 (2009). See also, Cass R. Sunstein and Adrian Vermeule, Interpretation and Institutions, 101
MICH. L. REV. 885, 920 (2003).

131
time. All of these characteristics are affected by panel structure of the Court to
varying extents.32

4.4 COURT WITH LARGE AND SMALL NUMBERS:

There are varied arguments put forth by several authors concerning the
advantages and disadvantages of having Court with Large33 and Small numbers. 34 A
prominent argument against the Court with a large numbers is that participation of the
Judges becomes difficult. Judge Posner explains: ‘....when the number of Judges
reaches the level, conventionally taken to nine, beyond which the deliberations of a
Court come increasingly to resemble those of a legislature.35 Thus, he believes that
Court will become a deliberative body like the legislature and will find difficult to
arrive a solution within a time frame. While deciding a constitutional matter, the
Court shall efficiently and expediently handle it, rendering the decision be transparent
and reflect the participation of all members with coherence and accuracy in some
sense. An analysis of the same can be made by comparing size of the Court and its
impact on the below mentioned categories.

4.4.1 Efficient and Expedite: Undoubtedly, expanding the Court may expedite the
decision of a case. But, more Judges mean that more opinions may be worked on at
once and it may lead increase to the delays. Increased collegiality should yield greater
efficiency because norms of productivity and group commitment enhance group
performance. Active participation of individual Judges may decrease as the Bench
gets larger, with members perceive that their contributions are not as significant and
remain a silent spectator in the Bench36 i.e. they hardly express their minority opinion
or raise questions during the hearing. The consequences of a large number of
participants in the Bench may not necessarily be connected to a loss of collegiality but
may contribute to diminished efficiency.

32
Nick Robinson, Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme
Courts, 120 available at http://ssrn.com/abstract=2061061.
33
It includes En Banc Court and multi-panel Court, where more than five Judges in each and every
panel.
34
The multi-panel consists of Judges less than or equal to three in each panel.
35
RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 133 (1996).
See also, Michael B. Abramowicz, En Banc Revisited, 100 COLUM. L. REV. 1600, 1623 (2000).
36
See A. Paul Hare, A study of Interaction and Consensus in Different Sized Groups, 17 AM. SOC.
REV. 261, 267 (1952).

132
4.4.2 Transparent: Impartiality and independence are important aspects of
transparency. While increasing the Court’s size may help to reduce the impact of the
prejudices.37 There is still a likelihood of partiality because each individual carries his
or her own set of biases, which may adversely affect the decision making process.
Moreover, increasing a group may increase the probability of forming new biases and
each member may try to pull another to their side, which severely affect decision-
making. The shared biases may enhance the strength of bias through group
38
divergence, especially if no other Judge holds a strongly opposing view.
Deliberation among the members may hinder when the Court is enlarged.
Consequently, each Judge may feel less obliged to reconsider their own biases
because of a belief that biases will have less impact on the larger Court. Expansion
also presents the possibility of strengthening the effect of bias. Shared biases may
become stronger due to group polarization, especially if no other Judge holds a strong
opposing view. Increasing the size of the Court will enhance the judicial
independence i.e. less direct interference and influence by Government and interest
groups, or indirect influence by the press. Increasing the size of the Court surely
protects the individual Judges from external influences. However, excess
independence may strip the Judges of any accountability. 39

4.4.3 Participation: Participation increases with diversity, representation, and

collegiality. The Benches of larger sizes require additional resources. 40 As the
participation increases then diversity and representation increases. Thus, participation
is directly proportional to diversity and representation. Further, size may have a direct

37
For example, where one Judge hears a case, his biases alone control the outcome of a case. By
contrast, on a Court with three members, no one Judge’s biases can control the outcome of a case; there
must be an agreement between at least two members. More than that, the diversification of viewpoints
through expansion of the Court may reduce the strength of an individual’s bias. See Hessick and Jordan,
Supra note 31 at 674.
38
Id., 675.
39
See John A. Ferejohn and Larry D. Kramer, Independent Judges, Dependent Judiciary:
Institutionalizing Judicial Restraint, 77 N.Y.U. L. REV. 963, 981(2002). (‘If relatively few devices are
available to control individual judges, a great much more can be directed at the institution of the
judiciary as a whole’). Not everyone has been in favour of reducing the individual accountability of the
Justices. In the debates establishing the Supreme Court, Senator Maclay argued against a large Court
on the ground that it would result in too personal accountability, which in turn would result in inferior
decisions. See DIARY OF WILLIAM MACLAY (Jun. 23, 1789) reprinted in 4 DOCUMENTARY
HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA: 4
MARCH 1789-3 MARCH 1791, at 413-14.
40
For example, the time allotted for oral argument might be expected to rise if the number of Justices
increases, which will impose additional resource costs since the oral argument is a redundant task. See
Hessick and Jordan, Supra note 31, at 688.

133
impact on the Court’s ability to satisfy the demands of the strong participation claim.
Smaller groups tend to produce greater levels of participation.41 A Bench with lesser
number has greater diversity and representation. Greater diversity on the Bench may
increase the public trust in the Court because it may convey a sense of inclusion to
demographic groups that would otherwise be unrepresented on the Court, and this
sense of inclusion may, in turn, generate greater public confidence in the Court.
Particularly, in a pluralistic society like India, the diversity in the structure of the
Court promotes unity in diversity not only among the masses but also among the
members of the legal fraternity. It increases the diversity of information and
viewpoints held by the Judges and will increase the total information on the Bench in
the concerned subject matter, which will lead to more informed and produce better
decisions.42 This indicates a large Court is likely to produce greater diversity, and
more diverse groups enjoy significant advantages in solving complex problems. 43
However, a large Court does not guarantee the presence of more informational
perspectives if a Court is large and homogenous then it has adverse affects in
decisional output. For example, demographic diversity can restrict group deliberation
by raising communication barriers and by triggering stereotyping. 44 These barriers
should increase as group size expands because larger groups have a greater tendency
to break down into smaller self-segregated groups.45 Thus, even if a large number
produces advantages in both demographic and informational diversity, group
performance may nonetheless suffer if the barriers created make it more difficult for
the group to communicate and integrate informational inputs.46 The other well known
and one of the biggest obstacles in achieving the benefits of diversity is
ineffectiveness in extracting and integrating the competing perspectives from group
members. The significance of that obstacle is sensitive to the group size because
average member participation tends to decline and the number of nonparticipants

41
Id.
42
Id., at 655.
43
See Richard O. Lempert, Uncovering ‘Nondiscernible’ Differences: Empirical Research and the
Jury-Size Cases, 73 MICH. L. REV. 643, 685 (1975).
44
See Harry T. Edwards, The effects of Collegiality on Judicial Decision Making, 151 U.Pa. L. REV.
1639, 1669 (2003). (‘Research on demographic diversity in organizations suggests that increased
diversity of race, ethnicity and gender can have adverse effects on groups functioning because it leads
to increased stereotyping and makes communication more difficult and conflict more likely’).
45
See Robert M. Bray, Norbert L. Kerr & Robert S. Atkin, Effects of Group Size, Problem Difficulty,
and Sex on Group Performance and Member Reactions, 36 J. PERSONALITY & SOC. PSYCHOL.
1224, 1233-34 (1978).
46
Hessick and Jordan, Supra note 31, at 682.

134
tends to rise as groups get larger. 47 It is because larger groups present fewer
opportunities to speak, with more aggressive members tending to seize those
opportunities. 48 However, many of the obstacles that develop in the larger groups
may be counteracted through collegiality 49 or competent and impartial leadership.
Thus, collegial groups are better at promoting participation by all members 50 at
avoiding stereotyping and communication breakdowns that can come with
demographic diversifications. Similarly, effective leaders can structure deliberation to
encourage greater participation and foster commitment to shared values about the
group’s goals. However, it has to be noted that both collegiality and leadership
become more difficult to achieve as the size increases. 51 Similarly, size and
collegiality have in relation, may both affect the coherence of large group decisions.
A larger group, particularly one that has a more diverse range of informational or
value perspectives, is less likely to reach decisions that are agreed upon by the entire
group, and the lack of consensus may have an adverse impact on its coherence.
Similarly, an increase in informational diversity may generate incoherence. The
presence of multiple opinions in a given case may have adverse effects, if the
fractured nature of the decision generates confusion about its precise contours. 52
Although, in participation, large numbers has some disadvantages, particularly in
collegiality and coherence, in the eyes of the public, it carries more weight both in
precedent value and in the authority of the judgment.53 The large numbers may also
discipline decisions of the small Judge panels by setting precedential consistency and
certainty in the law.

4.4.4 Accuracy: In large numbers, the values associated with promoting high quality
deliberation are collegiality, informational diversity, impartiality, participation, etc.
are favoured largely because they promise to deliver a constructive exchange of

47
See Bray, Kerr & Atkin, Supra note 45.
48
See BOBBY R. PATTON & KIM GIFFIN, DECISION-MAKING GROUP INTERACTION 73
(1978).
49
See Edwards, Supra note 44, at 1641 (‘Collegiality is a process that helps to create the conditions for
principled agreement, by allowing all points of view to be aired and considered’).
50
See Norbert L. Kerr & R. Scott Tindale, Group Performance and Decision Making, 55 ANN. REV.
PSYCHOL. 623, 626 (2004).
51
See Edwards, Supra note 44, at 1675 (‘Smaller groups have the potential to interact more efficiently,
making close and continual collaboration more likely’).
52
Id., at 1651.
53
Robinson Supra note 32, at 120.

135
opinions and perspectives that will generate superior or more accurate decisions. 54
Undoubtedly, if a large numbers of Judges consider a particular case, then the
resulting majority decision need not be always unanimous. It may sometimes have
the majority as well as minority views and in any case irrespective of the reasoning,
the majority view will prevail, but if just one Judge is selected to resolve that
particular case decided by the large size, the Judge might not produce the same
decision as the majority produce.55 There may be a more straightforward relationship
between size and accuracy. It has been claimed that size is directly proportional to
accuracy i.e. large size tends to achieve greater accuracy. Accuracy might be
promoted not through the dynamic or creative interaction of views, but through their
simple aggregation. 56 It has been claimed that under an aggregation model, high
quality deliberation or deliberation of any kind is unnecessary. 57 Instead, accuracy is
derived from pooling together the individually held views of group members. 58
Perhaps, the most well-known aggregation claim is the Condorcet Jury Theorem,59 In
general terms, Condorcet Jury Theorem 60 holds that if a decision has to be made
between two choices, one correct and one incorrect, if all those who vote on the
decision are more likely than not to make the correct choice, and if each votes
independently of the others, then the probability that the majority of voters will make
the correct choice increases. In one of the studies,61 Kornhauser and Sagar apply the
CJT to multimember Courts. They assumed initially that there are only two possible
outcomes, that the Judges who decide independently, are likely to choose the correct
outcome, and that each Judge tends to choose the correct than the incorrect outcome.
They argue that, under these conditions, adding Judges to a decision increases the

54
Hessick and Jordan, Supra note 31, at 693.
55
Abramowicz, Supra note 35, at 1633.
56
Lewis A Kornhauser and Lawrence G. Sager, Unpacking the Court, 96 YALE L.J. 82, 99-102 (1986).
57
Adrian Vermeule, Many-Minds Arguments in Legal Theory, 1 J. LEGAL ANALYSIS 1, 21 (2009).
58
Id., at 6.
59
Lewis Kornhauser, and Lawrence Sager make this point well in arguing that larger panels are more
likely to reach the correct result than smaller ones: [W]e may consider each Judge’s decision as the
draw of a single marble from a bag with marbles of two colours (white for a correct decision, blue for
an incorrect decision), mixed in proportion to the likelihood of any Judge’s choosing the correct
outcome. Adding judges simply adds draws (with replacement); as long as the proportion of white
marbles in the bag exceeds ½, the more draws there are, the more likely it becomes that more than half
of the marbles drawn will be coloured white or ‘correct’. The fact that there are more judges on a panel
thus implies that the panel is more accurate, i.e., more likely to reach the right decision. [Kornhauser
and Sager, Supra note 56, at 97-98].
60
‘Condorcet Jury Theorem’ hereinafter referred as ‘CJT’.
61
Komhauser and Sagar, Supra note 56.

136
likelihood of an accurate decision. 62 Hessick and Jordan discussed the problem
governed by CJT by relying on Adrian Vermeule work.63 Firstly, in its classic form,
the Theorem applies to situations where there is an exogenously defined correct
answer. Even if we assume that the right answers are possible in law, exogenously
defined correct answers are present only in some subset of cases, namely those, where
one of the following conditions is met: (1) there is a factual component to the legal
question; (2) there is a prescriptive or means-end judgment about which legal ruling
will be conducive in achieving an agreed-upon goal; (3) the legal question, although
neither factual nor prescriptive, otherwise has a right answer somehow defined
through philosophy, morality, or contemporary culture. No doubt, a substantial
number of cases do not fall within these categories; they do not have ‘right’ answers.
For them, the Theorem does not hold good. Secondly, even if those cases where the
condition of an exogenously defined correct answer is satisfied, there is a potential
barrier associated with the requirement of independence. The cause for concern is not
deliberation, but correlated bias. Random distribution of bias is a major force behind
the Jury Theorem, but sometimes they are likely to err in the systematic rather than
random ways and the systematic errors will undercut group performance.64 All of this
connects to size and the theorem in the following way. If background diversity is
absent, then even a large group may not satisfy the requirements of the Theorem, and
it becomes more difficult to support a claim for increased size as a means of
promoting accuracy. If background diversity is present, then the conditions for the
Theorem may be met for some number of the Court cases, and expansion in size
should increase the likelihood that the correct results are reached in those cases. 65 The
above vitiating elements of Court with large Bench can be well illustrated by the case
of Kesavananda case, which was the only case decided by the thirteen-Judge Bench
of the Supreme Court of India. It was a landmark constitutional battle between the
Parliament and the Supreme Court concerning the power of the Parliament to amend
the Constitution. From day one, the Court witnessed lots of interesting outcomes
both from the Bench and the Bar. Although, the judges were carefully selected by the

62
Benjamin R.D. Alarie, Andrew J. Green and Edward M. Iacobucci, Is Bigger is Always Better? On
Optimal Panel Size, with Evidence from the Supreme Court of Canada, U TORONTO, LEGAL
STUDIES RESEARCH PAPER NO. 8-15, 9 (May 2011).
63
Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 COLUM. L. REV.
1482 (2007).
64
Id., at 1500 – 1501.
65
See Richard A. Posner, Is the Ninth Circuit Too Large? A statistical Study of Judicial Quality, 29 J.
LEGAL STUD. 711, 717-718 (2000).

137
CJI, it was equally divided for and against the Government.66 The advocates made
their arguments before the Judges, who are inclined to their views and not before
those having conflicting views. 67 Further, if any question posed by one of the Judges
was answered by the other Judge in the Bench either in favour or against the
government causing great embarrassment not only to the remaining Judges sitting in
the Bench, but also the advocates who are arguing the case. 68 This led to several
heated debates and indecisive arguments in the Court hall. During the course of the
arguments, Justice Beg became ill often, which detached him from the Bench and he
was hospitalized when final arguments were advanced. Thus, the hospitalization of
Justice Beg hampers expediting the case and left the advocates with no other option
but to submit their arguments in writing breaking down the Court norms. Moreover,
the retirement of Chief Justice Sikri, the very next day of the date of judgment,
compel the advocates to close their arguments early. In addition to that, some judges
had no time to read all the eleven judgments as they were prepared under great
constraints of time. Justice Chandrachud confessed that he just had a time to scan
through only four draft judgments of his colleagues.69 Although the Bench is large

66
Six judges, Chief Justice S.M. Sikri and Justices J.M. Shelat, K.S. Hegde, P. Jaganmohan Reddy,
A.N. Grover, and S. Mukherjea were of the opinion that Parliament’s power was limited because of
implied and inherent limitations in the Constitution, including those in fundamental rights. Six other
judges, Justices A.N. Ray, D.G. Palekar, K.K. Mathew, S.N. Dwivedi, M.H. Beg, and Y.V.
Chandrachud were of the opinion that there were no limitations at all on Parliament’s power to amend
the Constitution. But one judge Justice H.R. Khanna took neither side. (See T.R. Andhyarujina, Basic
structure of the Constitution revisited, The Hindu, May 21, 2007, http://www. thehindu. com /todays-
paper/tp-opinion/basic-structure-of-the-constitution-revisited/ article1845048.ece (last visited Dec. 25,
2015).
67
Palkhivala for the petitioners answered all questions put to him by the Chief Justice Sikri and
Justices Shelat, Hegde and Grover eagerly and with some reluctance the questions put to him by
Justices Ray, Mathew, D.G. Palekar and Khanna, but on several occasions, he just ignored or evaded
the questions from Justices Dwivedi and Beg. (See T.R. ANDHYARUJINA, KESAVANANDA
BHARATI CASE - THE UNTOLD STORY OF STRUGGLE FOR SUPREMACY BY SUPREME
COURT AND PARLIAMENT 23-24 (2011).
68
When Justice Jaganmohan Reddy put a question to Attorney General Niren De, it was answered by
Justice Hegde. Justice Jaganmohan Reddy was so upset and said ‘Mr. Attorney General is it not
strange that I have been listening to all the arguments and submissions during all these days without in
any way disturbing any of you so far, and when I ask a question, it is being answered by my brother. I
want your answer and not from my brother.’ [(See P. JAGANMOHAN REDDY, THE JUDICIARY I
SERVED 231 (1999)].
69
In his judgment he begins by stating.- ‘I wanted to avoid writing a separate judgment of my own, but
such a choice seems no longer open. We sat in the full strength of thirteen to hear the case, and I hoped
that after a free and frank exchange of thoughts, I will be able to share the views of someone or the
other of my esteemed brothers. But, we were overtaken by adventitious circumstances. Counsel all
round consumer so much time to explain their respective points of views that very little time was left
for us to elucidate ours. And the time factor threatened at one stage to assume proportions as grave as
the issues arising in the case. The Court, very soon, will be poorer by the retirement of the learned
Chief Justice and that has set a deadline for the judgment. There has not been enough time, after the
conclusion of the arguments, for an exchange of draft judgments amongst us all and I have had the
benefit of knowing fully the views of only four of us. I deeply regret my inability to share the opinion

138
with diverse views, it lacks collegiality because the decision was affected by lack of
effective participation by all members of the Bench and collegiality. There was not
enough deliberation between the Justices to know the views of the brother Judges and
at times, Chief Justice Sikri called for a meeting but only with the like minded
Judges.70 The act of the Chief Justice Sikri showed a failure in encouraging greater
participation of all members of the Bench in order to arrive at a precise and coherent
decision. The significant aspect of the judgment was devoid of accuracy in spite of
larger Bench. After the oral pronouncement of the eleven judgments in the Court, the
conclusion could not be reached due to lack of consensus. This compelled the CJI
Sikri to produce a paper titled the ‘view of the majority’ and passed it on for
signatures of all thirteen Judges. One of the conclusions was that ‘Parliament did not
have the power to amend the basic structure or framework of the Constitution.’ It was
extracted from one of the findings in the Justice H.R. Khanna’s Judgment. Nine
Judges signed the statement in the Court.71 Four others refused to sign it.72 A reading
of the eleven judgments would show that this conclusion could not have been the
view of the majority. The ‘Doctrine of Basic Structure’ was born out of the views of
one Judge, Justice H.R. Khanna. The Chief Justice’s action has been described by
some as an act of statesmanship and others believe it was a maneuver to create a
majority that did not exist. Thus, although it was a large Bench, the partial attitude of
the Chief Justice allow a controversial doctrine to be formulated through a view of a
single Judge adding to the majority of six then approved and accepted by nine Judges.
However, there are certain disadvantages in small numbers also. The small numbers
cannot overrule the decision of larger Benches. It is evident from the NJAC case. In
the said case, three Orders were passed, the first dealt with the recusal of one of the
Judges, 73 the second a ‘Reference Order’ 74 and the third, an Order on Merits.

of the learned Chief Justice and Hegde, J., on some of the crucial points involved in the case….. [See
(1973) 4 S.C.C. 225 (959-960)].
70
No judicial conference of judges was held to formulate ‘The view of the Majority’ as would have
normally been done in such cases. We now know that there was only one judicial conference and that
too of only the judges who were in favour of limitations on Parliament’s amending power in highly
controversial circumstances. It was called, much before the delivery of the judgments by the Chief
Justice. It then included Justice Chandrachud as it was believed at that stage that he was subscribing to
the views of the Sikri-led judges. The judges who were of the opinion that Parliament’s power was
unlimited were not deliberately called for the only conference. Supra note 68.
71
CJI Sikri, Justices Hegde, Grover, Shelat, Jaganmohan Reddy, Palekar, Khanna, Mukherjea and
Chandrachud.
72
Justices Ray, Mathew, Dwivedi, and Beg.
73
Hon’ble Justice J.S. Khehar, who is one of the members of the collegium by senior Judge, who
occupies in the top five of the senior Judges of the Supreme Court.

139
Concerning the Order of reference, the Supreme Court held that the collegium system
governed by the second and third Judges cases would become a historical event of the
past, as the new scheme contemplated under the impugned Constitution (99th
Amendment) Act, along with the NJAC Act, would replace the earlier dispensation.
In the above eventuality, the question of re-examination of the second and third
Judges cases would be only academic. The Court held that ‘However if we accept the
submissions of the petitioners, resulting in the revival of the earlier process, and
simultaneously conclude in favour of the respondents, that the second and third
Judges cases need a re-look. Thus, we would be obliged to refer this matter to a nine-
Judge Bench (or even, to a larger Bench), for re-examining the judgments rendered in
the second and third Judges case.’ The majority judgment, in this case favoured the
petitioners but simultaneously found issues in the memorandum of procedure adopted
by the collegium, but not in the collegium itself found by the second Judges case and
confirmed in the third Judges case. Moreover, although the issue is a new one, as
held by the Court in this case relied upon the Judgements of the second and third
Judges cases for their reasoning. This is because the Bench of lesser strength and
judicial propriety has to follow the decision of larger Bench. Concerning the
influence of CJI, he can easily pick the smaller Benches and in turn, can be tutored to
the needs and circumstances. From the above analysis, it is clear that if the size of the
Court both in large numbers and small numbers potentially faces problems in
efficiency and expediency, transparency, participation (diversity, collegiality, and
coherence) and accuracy.

4.5 HOW THE OPTIMAL SIZE OF ‘FIVE JUDGES’ ARRIVED FOR

CONSTITUTIONAL ADJUDICATION:
Ascertaining the size is easier said than done because it is hard to determine
what size would maximize any particular benefit in isolation. A group of six
members might, for instance, maximize the benefits of deliberation, but a group of
eleven might maximize accuracy. More importantly, setting a size to achieve one
goal might undermine another. Conversely, reducing Court size to obtain effective

74
The second order considered the prayer made by the learned Attorney General and some learned
counsel representing the respondents, seeking a ‘reference’ of the present controversy, to a nine-Judge
Bench (or even, to a further larger Bench). It is to re-examine the judgment rendered in Supreme
Court Advocates-on-Record Association v. Union of India, (1993) 4 S.C.C. 441 [hereinafter second
Judges case] and the advisory opinion in Re: Special Reference No. 1 of 1998, (1998) 7 S.C.C. 739
[hereinafter Third Judges case].

140
participation, efficiency, and coherence may frustrate diversity. Therefore, how we
set the size depends on how we prioritize the goals of the Court.75 In this connection,
it is pertinent to analyze the deliberations of the members of the Constituent
Assembly, in fixing not less than five Judges in Courts for constitutional adjudication
as the ‘best’ ordering for setting the size of the Court. On 6th June 1949, Shri Alladi
Krishnaswami Ayyar moved Art. 145(3) as clause (2a) of Art. 121. He did not make
any comment on this provision because it speaks itself, but spoke about the proviso,
so as to save the time of the Court.76 Dr. Ambedkar accorded wholehearted support to
Shri. Alladi Krishnaswami Ayyar on the condition that the jurisdiction of the Supreme
Court extends to criminal matters as well. 77 There was no deliberation and difference
of opinion among the members in fixing the minimum of five Judges to hear the
substantial question of law, as to the interpretation of the Constitution. Furthermore,
there is no view expressed that the Supreme Court has to sit en banc as like the
Supreme Court of the United States. The founding fathers of the Constitution had
consciously thought that the large number will pose a significant problem, resulting in
the Court sitting with just eight Judges including the Chief Justice. This precedent
was followed by the Supreme Court of India also when they sat with just eight
sanctioned Judges i.e. en banc in the year 1950. Unfortunately, due to the
accumulation of cases, it started to sit in panels of three, five and six. The Supreme

75
Hessick and Jordan, Supra note 31, at 696.
76
A party may raise a constitutional point in the course of a general appeal in which other questions are
raised. A court hears the appeal; it comes to the conclusion that the constitutional point that is raised is
not necessary for the disposal of the appeal, and the case can be easily disposed of on the other point
that has been raised. Under those circumstances, it will be a sheer waste of judicial time that a Bench
of five Judges should hear this case if otherwise a Bench of three Judges can under the rules of the
Court dispose of the appeal. Therefore, the provision is made-if the Bench that is hearing the case is
satisfied that a real question of constitutional law has arisen, for the proper disposal of the case, the
matter is referred to a full Bench of five Judges. They hear the constitutional question and the issue
come back before the three Judges who hear the original appeal and the other points of law that have
been raised and that Bench disposes of the case. It is the usual procedure followed in cases where any
point is referred to a full Bench for consideration by the High Courts in India. The idea is to assimilate
this procedure to the procedure that is being followed for full Bench references to the High Court.
Further, he pointed out that if the Supreme Court jurisdiction has been expanded by investing with
criminal jurisdiction then at any time a constitutional question may be raised in the course of a criminal
appeal and such circumstances, it may be referred to a Court constituted under this clause. [Constituent
Assembly of India Vol. VIII, 644-645 (June 6, 1949) (Statement of Shri. Alladi Krishnaswami Ayyar)].
77
There is a proviso which says that if a question about the interpretation of the Constitution arises in
a matter other than the one provided in article 110 (Art. 132 of the Constitution of India), the appeal
shall be referred to a Bench of five Judges and if the question is disposed of it will be referred back
again to the original Bench. In the proviso as enacted, a reference is made to article 111(Art. 133 of the
Constitution of India), but I quite see that if the House at a later stage decides to confer jurisdiction to
entertain criminal appeals. This proviso will have to be extended so as to permit the Supreme Court to
consider an appeal of this sort even in a matter arising in a criminal case. [Constituent Assembly of
India Vol. VIII, 650 (June 6, 1949) (Statement of Dr. Ambedkar)].

141
Court Rules in 1950 also provided that at least three Judges had to participate in every
decision. Alas, with the widening jurisdiction, they could not comply with this rule,
and it was amended very early to permit the two-Judge Bench system. The Court
very soon disintegrated and sat in two-Judge Bench regularly and occasionally as five
or more than five-Judge Bench. The five-Judge Bench criteria are chosen from the
total strength of eight member strength of the Supreme Court, and moreover, it is not
necessary that the minimum strength of the Judges in constitutional adjudication has
to be increased when the total strength is increased. The five-Judge Bench for the
requirement of constitutional adjudication is neither large nor small and is the optimal
size. The size of the Bench for constitutional adjudication has remained for almost
65 years without any serious mishap. The reassessing and perhaps changing the
current size of the Constitution Bench through practice or by implied procedure by
reducing it to three will create substantial obstacles in promoting consistency and
certainty in the law and will impair the organic development of the constitutional
jurisprudence of the country.

4.6 INTERPRETATION OF RULE 2 OF ORDER VI OF THE SUPREME

COURT RULES, 2013:
The rule 2 of Order VI provides that if the division of two or three Judge
Bench in the course of hearing of any matter considers that the matter should be dealt
with by a larger Bench, it shall refer the case to the CJI. The CJI shall then constitute
a larger Bench for disposal of the matter. According to this rule, the CJI has the
power to constitute Benches, nominate judges and assign cases to them. As per the
normal practice, the Registrar (Judicial) prepares the roster for the Court’s business
and, with the approval of the Chief Justice, the cause lists are prepared showing
matters assigned to various benches of Judges. 78 However, the Chief Justice can
modify or change the cause list, if he so desire and can override the automated system
of assigning cases and explicitly assign cases to his own or another’s Bench. It is
clear that he plays a strong role not only in deciding which all cases are heard by
larger benches, but also cases heard by other Judge.79 The bench assignments are not

78
VIJAY K. GUPTA, DECISION MAKING IN THE SUPREME COURT OF INDIA 97 (1995).
79
See H.R. KHANNA, NEITHER ROSES NOR THORNS 77 (1987). (‘When there was an attempt to
reconsider Kesavananda case, the then Attorney General said that it was the prerogative of the Chief
Justice to decide as to how many judges should be on the Bench to hear the matter for the question

142
made randomly or by lottery, nor are they made by some rotation formula, which
might restrict the Chief Justice’s discretion. The period from 1950 to 1967, as
provided sufficient shreds of evidence pointing to the conclusion that at least several
of the Chief Justices of that period made bench assignments with the view towards
achieving decisions and policy outputs they preferred. This was primarily done to
maximize the majority opinion to get unanimity and minimizing dissent as far as
possible, with a demonstrated propensity towards dissenting behaviour participated
less frequently in decision-making than those disinclined towards dissenting
behaviour. 80 Further, the CJI has the discretion in creating the composition of the
Bench and can speed up the hearings of the cases depend on the necessity81 or with
hold the politically sensitive cases, for years. 82 He also creates the composition of the
Benches that can effectively punish Judges for outlier decisions. For example, he can
exclude a non-conforming Judge on the larger and more powerful Constitution
Benches of five or more judges.83 In this context, it is significant to note that Hon’ble
Justice Markandey Katju84 did not find a place in any of the Constitution Benches
when Hon’ble Justice K.G. Balakrishnan was holding the position of the CJI. In the
all India Law Teachers conference on Dec. 27, 1979, at Varanasi, 85 Hon’ble Justice

posed by H.R. Khanna that there was no order of any Bench asking for reference of the matter to larger
Bench.’).
80
George Gadbois, Participation in Supreme Court Decision Making: From Kania to Vaidialingam,
1950-1967, Jan-March 24 JILI (1982).
81
For example, the case Nebam Rebia v. Registrar, Gauhati High Court, SLP (C) No. 876 of 2016 and
Writ Petition (C) No. 53 of 2016 has been referred to Constitution bench within a month, and it is being
heard by Judges comprising Hon’ble Justices JS Khehar, Dipak Misra, Madan B Lokur, Pinaki
Chandra Ghose, and NV Ramana since 15 Jan. 2016. The case is about the factional rivalry in the
ruling Congress Government in Arunachal Pradesh and it had witnessed high drama in the assembly
proceedings since the first week of Dec. 2015, which includes disqualification of many members
including the removal of the speaker with the help of the Governor. The major constitutional questions
were ‘whether the Governor has the discretion to call a meeting of the legislative assembly without the
aid and advice of the Council of Ministers and the scope and ambit of the Anti-Defection Act will also
come under scrutiny’. The Court has delivered the verdict on 13.07.2016 restoring the Congress
Government in the State and holding Governor’s action were illegal.
82
The jurisdictions of the courts are ousted in the inter-State river water disputes, which includes the
Supreme Court of India. However, the State of Karnataka, Tamil Nadu, Kerala, and Union Territory
Pondicherry approached the Supreme Court against the final Order of the Cauvery Water Dispute
Tribunal. The Special Leave Petitions were admitted in April 2007 and referred to Constitution Bench.
But, not yet disposed till now because the matter relating to inter-State river water disputes are much
politicized in India. (J. Venkatesan, Supreme Court admits SLPs against Cauvery Tribunal award,
THE HINDU (Chennai), May 08, 2007, at 1.
83
Robinson, Supra note 31 at 115.
84
He has been the Judge of the Supreme Court of India from 10th April 2006 to 19th September 2011.
85
‘Even on important and sensitive issues the decision is to some extent, influenced by the composition
of the bench. It is because decisions on constitutional issues are influenced by value judgments and the
choice between competing values is guided mostly by the legal philosophy of the Judge. And if one
set of five Judges decides a constitutional matter, the decision can go one way while it may go another

143
Bhagwati, a member of the Court since 1973, made a different but pertinent point
concerning the prerogative power of Chief Justice in choosing the Bench to decide a
constitutional matter. The practices clearly show that bench assignments in the
Supreme Court are the exclusive prerogative of the Chief Justice, and he enjoys
considerable discretion in these matters. There is no express provision or procedure
governing the Bench assignments, but there are number of factors which may be
relevant in making Bench assignments. The instances are the utilization of the Judges
strength with a view to maximise the decisional output of the Court, effort to
minimise overt dissent in the Court, where unanimity is a preferred value with the
Chief Justice, and other considerations like subject matter specialisation of Judges or
their interest in a particular area of the law to ideological preferences and their
probable voting response in important controversies.86 Although the CJI constitutes
Benches in his administrative capacity, there should be a judicial order of reference to
a larger Bench. The division Bench of two Judges flouted the rules and procedures in
referring the matter to the larger Bench, which is analyzed below.

4.7 JUDICIAL IMPROPRIETY IN CONSTITUTING CONSTITUTION

BENCHES:
Justice H.R. Khanna has remarked the power of the CJI in constituting larger
Bench by taking the example of reconsideration of Kesavananda case. He said ‘A
thirteen-Judge Bench was constituted to reconsider Kesavananda case without there
being any judicial order of reference to reconsider it.’87 However, it was dissolved by
the then CJI Sikri on the second day of the argument. There are many instances
where division Benches of two Judges had doubted the correctness of decisions of
larger Benches and referred the matter straight away to a larger Bench of five or seven
Judges without referring to the CJI. Some include: A two-Judge Bench doubted the
correctness of certain directions made by a five-Judge Bench in R.S. Nayak v. A.R.

way if the case is decided by another set of five Judges. The result is that important decisions on
constitutional issues are not the decisions of the Supreme Court, but they are the decisions of a bench
of five Judges chosen by the Chief Justice. The Supreme Court was intended to be an integrating
mechanism designed to evolve uniform laws and a systematic approach to legal and constitutional
issues, but it has become a glorified High Court with a fragmented bench structure without any identity
of its own and any sense of direction.’[See George Gadbois, The Decline of Dissent on the Supreme
Court, 1950-1981, in JUSTICE AND SOCIAL ORDER IN INDIA 245-246 (Ram Avtar Sharma ed.,
1984)].
86
Chaitanya Kalbag, A Battle Supreme, INDIA TODAY, Dec. 15, 1982 at 118-120.
87
See Supra note 79.

144
Antualy88 and referred the matter to be decided by a seven-Judge Bench. 89 In Sanjay
Dutt v. State(II),90 a five-Judge Bench answered the question referred to it by a two-
Judge Bench in Sanjay Dutt v. State.91 In State Bank of India v. State Bank Staff
Union,92 a two-Judge Bench referred the question whether workmen who proceed on
strike whether legal or illegal were entitled to wages for the period of the strike which
was answered by a five-Judge Bench in Syndicate Bank v. K. Umesh Nayak 93 by
holding that to be entitled to wages for the strike period, but the strike has to be both
legal and justified. In K.S. Paripoornan v. State of Kerala, 94 a two-Judge Bench
doubted the correctness of Union of India v. Zora Singh95 and referred the matter to a
five-Judge Bench, which answered the reference in K.S. Paripoornan(II) v. State of
Kerala. 96 A five-Judge Bench entertained and answered the reference in Steel
Authority of India Ltd. v. National Union Waterfront Workers97 by a two-Judge Bench
in FCI v. Transport and Dock Workers Union.98 In Sunder v. Union of India,99 a
two-Judge Bench referred the question whether the State is liable to pay interest on
the amount envisaged under Sec. 23(2) of the Land Acquisition Act, 1894, which was
entertained and answered in the affirmative by a five-Judge Bench in Sunder(II) v.
Union of India. 100 Likewise, there are so many cases, where the smaller Bench
directly refer the matter to the larger Bench.101 The judicial impropriety of smaller
Bench in constituting the Constitution Bench on their own according to their whims
and fancies makes the law unsettled and the doctrine of precedent unworkable. The
autocratic way of referral by the two-Judge Bench to the larger Bench five or seven
will certainly augment many Constitution Bench cases also. The Supreme Court by
the judicial order streamlined the procedure of reference by division bench if they
doubt the correctness of the decision of the larger Benches or co-ordinated Benches.

88
(1984) 2 S.C.C. 183.
89
A.R. Antulay v. R.S. Nayak, (1988) 2 S.C.C. 602.
90
(1994) 5 S.C.C. 410.
91
(1994) 5 S.C.C. 402.
92
(1992) Supp (3) S.C.C. 99.
93
A.I.R. 1995 S.C. 319.
94
(1992) 1 S.C.C. 684.
95
(1992) 1 S.C.C. 673.
96
A.I.R. 1995 S.C. 1012.
97
(2001) 7 S.C.C. 1.
98
(1999) 7 S.C.C. 59.
99
(2000) 10 S.C.C. 470.
100
A.I.R. 2001 S.C. 3516.
101
R. Prakash, Competence of two-Judge Benches of the Supreme Court to refer cases to the larger
Benches, (2004) 6 S.C.C. (Jour) 75.

145
4.8 CASES RELATING TO THE ORDER OF REFERENCE TO THE
LARGER BENCH:
As discussed above, various references have been made by Benches of two
Judges to larger Benches of five or more Judges since the commencement of the
Constitution. However, the Court turned over the procedure in the year 2001. In
Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangha and others, 102 the
Supreme Court Constitution Bench103 refused the order of reference by two learned
Judges, which doubted the correctness 104 of the Constitution Bench decision in
Gammon (India) Ltd. v. Union of India105 by stating that judicial discipline obliges
them to follow it, regardless of their doubts about its correctness. The above
reasoning was elaborately discussed in Pradip Chandra Parija and others v. Pramod
Chandra Patnaik and others106[hereinafter Parija case]. The Supreme Court107 held
that judicial discipline and propriety demands that a Bench of two Judges should
follow a decision of a Bench of three Judges. But if a two-Judge Bench finds a
judgment of a three-Judge Bench to be so incorrect that it cannot be followed in any
circumstances, the proper course would be to refer the matter before it to another
Bench of three Judges by setting out the reasons why it could not agree with the
earlier judgment. If the three-Judge Bench also concludes that the judgment
concerned is incorrect, then the matter can be referred to a five-Judge Bench. It held
that a two-Judge Bench may refer a matter directly to a Constitution Bench only when
Art. 145(3) is attracted, namely, if a substantial question of law as to the interpretation
of Constitution arises from the matter before it. 108 It has been followed by the
Supreme Court in its subsequent Constitution Bench decisions Chandra Prakash v.
State of Uttar Pradesh109[hereinafter Chandra Prakash case] and Vishweshwaraiah
Iron and Steel Ltd. v. Abdul Gani.110 In Prakash Kumar alias Prakash Bhutto v. State
of Gujarat, 111 the three-Judge Bench 112 of the Supreme Court received a reference

102
(2001) 4 S.C.C. 448.
103
S.P. Bharucha, V.N. Khare, N. Santosh Hegde, Y.K. Sabharwal and Shivaraj V. Patil.
104
The issue is relating to Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970.
105
(1974) 1 S.C.C. 596.
106
(2002) 1 S.C.C. 1.
107
The six-judge Bench, consists of S.P. Bharucha, C.J. and Justices Syed Shah Mohammed Quadri,
Umesh C., Banerjee, S.N. Variava and Shivaraj V. Patil.
108
Supra note 106, at 4.
109
(2002) 4 S.C.C. 234.
110
(2002) 10 S.C.C. 437.
111
(2004) 5 S.C.C. 140.

146
from the two-Judge Bench doubting the correctness 113 of the decision in State v.
Nalini114 [hereinafter Nalini case]. The Court held that if the question as posed by the
two-Judge Bench is to be answered, it could only be done by a Bench of five Judges
as Nalini case has been decided by a Bench of three learned Judges. Hence, they
directed the registry to place the papers before the Hon’ble the Chief Justice of India
for appropriate Orders.115
In Arya Samaj Education Trust and others v. Director of Education, Delhi and
Others, 116 a two-Judge Bench directly referred the matter to be heard by a five-Judge
Bench without first referring it to a three-Judge Bench. The Supreme Court117 held
such a procedure cannot be followed by a two-Judge Bench and moreover, it does not
cover under Art. 145(3) also. The Constitution Bench directed the matter to be first
considered by a three-Judge Bench. In Central Board of Dawoodi Bohra Community
and another v. State of Maharashtra and another,118 the matter was finally settled. In
this case, 119 the Supreme Court 120 considered the views of the petitioner that the
matter must come up before a seven-Judge Bench only as referred by the two Judge
Bench because the law is taken by the Constitution Benches121 of the Supreme Court
is per incuriam122 because the previous decision of this Court by a Constitution Bench
in Union of India v. Raghubir Singh 123 [hereinafter Raghubir Singh case] takes a
contrary view and being an earlier decision was binding on the subsequent Benches
and she also placed reliance on a Constitution Bench decision in Union of India v.

112
Justices S. Rajendra Babu, Dr. A.R. Lakshmanan, and G.P. Mathur.
113
The admissibility of a confession regarding Sec. 15 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987.
114
(1999) 5 S.C.C. 253.
115
Supra note 111, at 141.
116
(2004) 8 S.C.C. 30.
117
The Bench consists of five Judges namely Justices N. Santosh Hegde, S.N. Variava, B.P. Singh,
H.K. Sema and S.B. Sinha.
118
(2005) 2 S.C.C. 673.
119
This case was filed for seeking reconsideration and overruling of the decision of the Supreme Court
in Sardar Syedna Taher Saifudin Saheb v. State of Bombay (A.I.R. 1962 S.C. 853). The matter came
up before a two-Judge Bench, where rule nisi was issued and directed the matter to be listed before a
seven Judge Bench for hearing. However, Respondent 2 filed a petition seeking a direction that the
matter is to be listed before a division Bench of two Judges as is the normal practice of this Court by
relying on the plethora of cases from Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha (2001)
4 S.C.C. 448 to Arya Samaj Education Trust v. Director of Education (2004) 8 S.C.C. 30.
120
CJI R.C. Lahoti and Justices Shivaraj V. Patil, K.G. Balakrishnan, B.N. Srikrishna and G.P. Mathur.
121
Supra note 106, 109, 110 and 111.
122
Per incuriam means a decision rendered by ignorance of a previous binding decision such as a
decision of its own or a court of coordinate or higher jurisdiction or in ignorance of the terms of a
Statute or of a rule having the force of law.
123
(1989) 2 S.C.C. 754.

147
Hansoli Devi 124 [hereinafter Hansoli Devi case], wherein the Constitution Bench
heard a reference made by a two-Judge Bench expressing disagreement with an earlier
three-Judge Bench decision. The Supreme Court held that it is true that Raghubir
Singh case was not referred to in any case other than Chandra Prakash case but in
Chandra Prakash case, Raghubir Singh case and Parija case both have been referred
to and considered and then Parija case followed. In Raghubir Singh case, a Bench of
two learned Judges had made a reference to a larger Bench for reconsideration of the
questions decided earlier by two Division Benches of the quorum of two and three,
respectively. The Constitution Bench then opined that the Constitution Bench could
hear the matter in such reference.
It is pertinent to note that in Raghubir Singh case, the Constitution Bench has
nowhere approved the practice and propriety of two-Judge Bench making a reference
straightaway to the Constitution Bench disagreeing with a three-Judge Bench
decision. On the contrary, the Constitution Bench had itself felt inclined to hear the
issue arising for decision and therefore did not think it to be necessary to refer the
matter back to a Bench of three Judges. Similarly, it was the situation in Hansoli Devi
case. Therein, the Constitution Bench has reiterated the principle of judicial
discipline and propriety demanding that a Bench of two learned Judges should follow
the decision of a Bench of three learned Judges. If a Bench of two learned Judges was
inclined not to do so, then the proper course for it to adopt would be (i) to refer the
matter before it to a Bench of three learned Judges; and (ii) to set out the reasons why
it could not agree with the earlier judgment. The Constitution Bench concluded ‘if
the Bench of three learned Judges also comes to the conclusion that the earlier
judgment of a Bench of three learned Judges is incorrect, then a reference could be
made to a Bench of five learned Judges.’ The Constitution Bench has very clearly
concluded and recorded, ‘the very reference itself in the present case made by the
two-Judge Bench was improper.’ In contrast, the Constitution Bench then proceeded
to observe that as the question involved had very wide implications affecting a large
number of cases, it considered it appropriate to answer the questions referred instead
of sending the matter back to a Bench of three Judges for consideration. The course
adopted by the Constitution Bench in Hansoli Devi case was by way of an exception

124
(2002) 7 S.C.C. 273

148
and not a rule.125 Finally, the Court held in the following terms: (1) The law laid
down by the Supreme Court in a decision delivered by a Bench of larger strength is
binding on any subsequent Bench of lesser or coequal strength. (2) A Bench of a
lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of
a larger quorum. In the case of doubt, all that the Bench of a lesser quorum can do is
to invite the attention of the Chief Justice and request for the matter being placed for
hearing before a Bench of a larger quorum than the Bench whose decision has come
up for consideration. It will be open only for a Bench of coequal strength to express
an opinion doubting the correctness of the view taken by the earlier Bench of coequal
strength, whereupon the matter may be placed for hearing before a Bench consisting
of a quorum larger than the one which pronounced the decision laying down the law
the correctness of which is doubted. (3) The above rules are subject to two exceptions:
(i) the above said rules do not bind the discretion of the Chief Justice in whom vests
the power of framing the roster and who can direct any particular matter to be placed
for hearing before any particular Bench of any strength; and (ii) in spite of the rules
laid down hereinabove, if the matter has already come up for hearing before a Bench
of larger quorum and that Bench itself feels that the view of the law taken by a Bench
of lesser quorum, which view is in doubt needs correction or reconsideration then by
way of exception (and not as a rule) and for reasons given by it, it may proceed to
hear the case and examine the correctness of the previous decision in question
dispensing with the need for a specific reference or the Order of the Chief Justice
constituting the Bench and such listing. It is very clear from the above observation of
the Supreme Court that a smaller Bench cannot directly doubt the correctness of the
law laid down by a larger Bench and thereby direct the matter be placed before a
Bench of five or more bye-passing Rule 1 and 2 of Order VI of the Supreme Court
Rules, 2013 and the conventions developed under it. The Chief Justice of India, in
whom the power and authority vests in constituting the larger Benches, which
includes the Constitution Benches also to determine the correctness of any earlier
decision including the correctness of any earlier decisions of the Constitution
Benches.

125
Supra note 118, at 682.

149
4.9 UNDERSTANDING CONSTITUTION BENCHES:
The retrieval of information concerning Constitution Benches through RTI
application was failed miserably and the researcher left with no other remedy,
ventured into the disposal of the Constitution Benches from 1950 to 2014. The data
relating to Constitution Benches are retrieved from Supreme Court's online judgment
information system 126 and cross-referenced the source with the All India Reporter
(AIR) electronic database and Supreme Court Cases (SCC) online, the standard law
reporters in India. There were glaring errors besides clerical mistakes like date of the
judgment, case number, strength of the Bench, etc. on the Supreme Court website.
One can find many cases were repeatedly reported, and it occurred from 1994 and
lasted till 2011. In 1994 itself, there were 9 cases uploaded repeatedly, and this
continued till 2011. 127 The bench of six and eight judges was neither found nor
updated. For example, there are totally 25 cases were disposed of by a bench of five
or more in 1950 but the Supreme Court website provides only 11 cases. Similarly in
1951, there were totally 23 cases, but only 15 cases were uploaded and in 1962, there
were 19 cases were not uploaded in the judis website and every year, few shortage of
cases in uploading. Thus, the data collected from judis had several drawbacks and
posed a great challenge to the researcher while categorizing into different categories
for examination. In some cases, it is difficult to find out the disposed Constitution
Benches of the Supreme Court. The best instance is, of late i.e. on January 11, 2013,
a Constitution Bench128 disposed the case of Mathai @ Joby v. George and another129
by refusing to lay down any guidelines regulating Art. 136 of the Constitution. 130
However, to the possible extent, it was rectified by cross-examining with AIR data
base and SCC online resources. But there still may be errors in the collection of data
and hope that will be relatively minor and negligible, surely will not reflect in the
interpretation of the data concerned. The Supreme Court’s decision making process
in constitutional adjudication has been quantitatively analysed under different

126
See http://judis.nic.in/supremecourt/consbench1.aspx.
127
In 1995 – 6 cases; 1996 – 9 cases; 1997 – 5 cases; 1998 – 3 cases; 1999 – 5 cases; 2000 – 8 cases;
2001 – 9 cases; 2002 – 12 cases; 2003 – 1 case; 2006 – 1 case; 2007 – 1 case; 2008 – 1 case; 2010 – 2;
2011 -1 case. Thus, in every year, there are the substantial number of cases were reported or repeatedly
uploaded on the Supreme Court website.
128
Hon’ble Justices A.R. Dave, Kurian Joseph, Shiva Kirti Singh, Adarsh Kumar Goel and Rohinton
Fali Nariman
129
(2010) 4 S.C.C. 358.
130
Apoorva Mandhani, Constitution Bench of Apex Court refuses to revisit the scope of Article 136,
LIVELAW.IN, Jan. 13, 2016, http://www. livelaw.in/ constitution-bench-of-apex-court-refuses-to-
revisit-scope-of-article-136/.

150
dimensions. The analyses of the disposal of the Constitution Benches of the Supreme
Court are as follows:

4.9.1 Disposed Constitution Benches (Year-wise):

DISPOSED CONSTITUTION BENCHES 1950-2014

173
163

137

115
101
95
91
79
71
65
595958
53 51
46 4648 43
40
32 32 32
2523 25 22 24 26 24
2017 22 21
18 20 17 16 16
131312 15 14 13 15 15
788 6 75 7 7 9 754
3 34 321
1950
1952
1954
1956
1958
1960
1962
1964
1966
1968
1970
1972
1974
1976
1978
1980
1982
1984
1986
1988
1990
1992
1994
1996
1998
2000
2002
2004
2006
2008
2010
2012
2014
DISPOSED CONSTITUTION BENCHES 1950-2014
1950
1952
1954
1956
1958
1960
1962
1964
1966
1968
1970
1972
1974
1976
1978
1980
1982
1984
1986
1988
1990
1992
1994
1996
1998
2000
2002
2004
2006
2008
2010
2012
2014

151
 There are totally 2,231 Constitution Bench matters were disposed of from
1950 to 2014. From the above picture, it is clear that there was a steady increase in
the first five years of the commencement of the Constitution. But it falls short in the
year 1955 and 1956 and thereon, the disposal rate is in the rising trend. From 1957 to
1959, the number of disposed matters was relatively stable maintaining around 60.
However, in 1960, the disposal was increased to a great extent touching more than
hundred Constitution Bench matters. The very next two years i.e. 1961 and 1962, the
disposal was alarmingly very high in numbers 163 and 173, respectively. There was a
dramatic drop off in the year 1963 itself and comes below hundred and again shoot up
to 137 in the year 1964. Thereon, the number of disposed Constitution Benches was
in a decreasing trend till 1970. During the early 1970s, the disposal was normal but
simultaneously declining and by 1975, it was very low and came to 13 and thereby
fluctuating within the number 25 till 2014. The worst periods are between 1981 to
1984; 2006 to 2009 and 2011 to 2013. In the first period, only 26 cases were disposed
of, whereas, in the second term only 15 cases were disposed of, in which only one
case was disposed of in the year 2009. In the last period, only 16 matters were
disposed. In the remaining years, the year 1987, 1988, 1995, 1997, 1998, 2000 and
2003 witnessed only the single digit number in the disposal rate of Constitution Bench
matters. It is very clear that till 1970, there was a substantial outcome of decisions in
the Constitutional matters. After the early 1970s, it was considerably reduced and an
average of 15 matters per year was disposed. However, the period between 1975 and
1990, there was an overall decline in the formation of Constitution Benches. Perhaps,
it may be presumed that fewer constitutional issues were agitated before the Court
during this period than they were in the past. The main reason may be that
constitutional questions were raised more often during the first period is hardly
unexpected, for Judges in the early years had to interpret a new Constitution, and had
to create through their decisions on Indian Constitutional law. Many new and
challenging constitutional issues, arising in particular in connection with the chapter
on Fundamental Rights, came before the Judges then, and 1970s resolved many of
these matters. The indiscriminate fluctuations in the disposal rate of the Constitution
Bench matters are many. But, the most important of all is the person who holds the
position of the Chief Justice. In this connection, it is pertinent to analyze the tenure of
each Chief Justices and their disposal of the Constitution Benches.

152
 4.9.2 Disposed Constitution Benches (Chief Justice wise):

Disposal of Constitution Benches in the tenure of Hon’ble Chief Justice of India

Hon’ble Chief Justices of India (Arranged according to Seniority)

S. NAME with (Initial) Date of Held Office No. of No. of

No. appointment till Disposed Disposed
as CJI Constitutio Constitu-
n Bench tion
(Bench- Benches
wise)
1. Hon’ble Mr. Justice Harilal 26/01/1950 06/11/1951 5-26; 6-15; 46
Jekisundas Kania (HJKJ) 7-5;
2. Hon’ble Mr. Justice M. Patanjali 5-77; 6-1;
07/11/1951 03/01/1954 80
Sastri (MPSJ) 7-2;
3. Hon’ble Mr. Justice Mehr Chand 5-87; 7-7;
04/01/1954 22/12/1954 95
Mahajan (MCMJ) 8-1;
4. Hon’ble Mr. Justice Bijan 31/01/1956
23/12/1954 5-42; 7-1; 43
Kumar Mukherjea (BKMJ) #
5. Hon’ble Mr. Justice Sudhi 5-178; 6-2;
01/02/1956 30/09/1959 182
Ranjan Das (SRDJ) 7-2;
6. Hon’ble Mr. Justice 5-555; 6-9;
Bhuvneshwar Prasad Sinha 01/10/1959 31/01/1964 7-10; 8-2; 579
(BPSJ) 9-2; 11-1;
7. Hon’ble Mr. Justice P.B. 5-260; 6-1;
01/02/1964 15/03/1966 266
Gajendragadkar (PBGJ) 7-3; 9-2;
8. Hon’ble Mr. Justice A.K. Sarkar
16/03/1966 29/06/1966 5-7; 7
(AKSJ)
9. Hon’ble Mr. Justice K. Subba 11/04/1967 5-59; 9-2;
30/06/1966 62
Rao (KSRJ) # 11-1;
10. Hon’ble Mr. Justice K.N.
12/04/1967 24/02/1968 5-47; 7-2; 49
Wanchoo (KNWJ)
11. Hon’ble Mr. Justice M. 5-114; 6-12;
25/02/1968 16/12/1970 135
Hidayatullah (MHJ) 7-7; 11-2;
12. Hon’ble Mr. Justice J.C. Shah
17/12/1970 21/01/1971 5-6; 6-1; 7
(JCSJ)
13. Hon’ble Mr. Justice S.M. Sikri 5-120; 7-7;
22/01/1971 25/04/1973 128
(SMSJ) 13-1;
14. Hon’ble Mr. Justice A.N. Ray 5-81; 7-5;
26/04/1973 28/01/1977 87
(ANRJ) 9-1;
15. Hon’ble Mr. Justice M.
29/01/1977 21/02/1978 5-6; 7-14; 20
Hameedullah Beg (MHBJ)
16. Hon’ble Mr. Justice Y.V.
22/02/1978 11/07/1985 5-87; 7-3; 90
Chandrachud (YVCJ)
17. Hon’ble Mr. Justice P.N.
12/07/1985 20/12/1986 5-24; 24
Bhagwati (PNBJ)
18. Hon’ble Mr. Justice R.S. Pathak 18/06/1989
21/12/1986 5-25; 7-1; 26
(RSPJ) **

153
19. Hon’ble Mr. Justice E.S.
19/06/1989 17/12/1989 5-1; 7-3; 4
Venkataramiah (ESVJ)
20. Hon’ble Mr. Justice Sabyasachi 25/09/1990
18/12/1989 5-14; 14
Mukherjee (SMJ) *
21. Hon’ble Mr. Justice Ranganath
25/09/1990 24/11/1991 5-14; 14
Misra (RMJ)
22. Hon’ble Mr. Justice K.N. Singh
25/11/1991 12/12/1991 5-4; 9-1; 5
(KNSJ)
23. Hon’ble Mr. Justice M.H. Kania
13/12/1991 17/11/1992 5-10; 9-1; 11
(MHKJ)
24. Hon’ble Mr. Justice L.M.
18/11/1992 11/02/1993 5-8; 8
Sharma (LMSJ)
25. Hon’ble Mr. Justice M.N. 5-24; 7-2;
12/02/1993 24/10/1994 29
Venkatachaliah (MNVJ) 9-3;
26. Hon’ble Mr. Justice A.M. 5-19; 7-1;
25/10/1994 24/03/1997 22
Ahmadi (AMAJ) 9-2;
27. Hon’ble Mr. Justice J.S. Verma
25/03/1997 17/01/1998 5-6; 6
(JSVJ)
28. Hon’ble Mr. Justice M.M.
18/01/1998 09/10/1998 5-3; 3
Punchhi (MMPJ)
29. Hon’ble Dr. Justice A.S. Anand
10/10/1998 31/10/2001 5-54; 9-1; 55
(ASAJ)
30. Hon’ble Mr. Justice S.P.
01/11/2001 05/05/2002 5-15; 7-2; 17
Bharucha (SPBJ)
31. Hon’ble Mr. Justice B.N. Kirpal
06/05/2002 07/11/2002 5-5; 11-1; 6
(BNKJ)
32. Hon’ble Mr. Justice G.B.
08/11/2002 18/12/2002 5-3; 3
Pattanaik (GBPJ)
33. Hon’ble Mr. Justice V.N. Khare
19/12/2002 01/05/2004 5-9; 9
(VNKJ)
34. Hon’ble Mr. Justice S. Rajendra
02/05/2004 31/05/2004 5-2; 2
Babu (SRBJ)
35. Hon’ble Mr. Justice R.C. Lahoti
01/06/2004 31/10/2005 5-30; 7-3; 33
(RCLJ)
36. Hon’ble Mr. Justice Y.K. 5-10; 7-1;
01/11/2005 13/01/2007 12
Sabharwal (YKSJ) 9-1;
37. Hon'ble Mr. Justice K.G.
14/01/2007 11/05/2010 5-15; 15
Balakrishnan (KGBJ)
38. Hon'ble Mr. Justice S.H.
12/05/2010 28/09/2012 5-16; 16
Kapadia (SHKJ)
39. Hon’ble Mr. Justice Altamas
Kabir (AKJ)
29/09/2012 18/07/2013 5-3; 3
40. Hon’ble Mr. Justice P.
19/07/2013 26/04/2014 5-3; 3
Sathasivam (PSJ)
41. Hon’ble Mr. Justice R.M.
27/04/2014 27/09/2014 5-15; 15
Lodha (RMLJ)
* Date of Death
# Date of Resignation

154
 The glorious period concerning the Constitution Benches is during the period
of Hon’ble Justice Bhuvneshwar Prasad Sinha. During his 4½ years tenure as CJI, he
disposed 555 five Judge, 09 six Judge, 10 seven Judge, 02 eight Judge, 02 nine-Judge
and one eleven Judge Constitution Bench matters respectively, totalling 579
Constitution Benches to his credit. He set a record in 1962 by disposing 173
Constitution Bench matters. He totally contributed about 26% of the total decisional
output of the Constitution Bench matters. The next credit goes to Hon’ble Justice
P.B. Gajendragadkar. During his two-year tenure, he disposed 260 five Judge, one six
Judge, 03 seven Judge and 02 nine-Judge Constitution Bench matters respectively,
totalling 266 cases in his bag, this contributed 12% in the total decisional output of the
Constitution Bench matters. The Hon’ble Justice Sudhi Ranjan Das in his 3 years 8-
month duration as CJI disposed 178 five Judge, 02 six Judge and 02 seven-Judge
Constitution Bench matters respectively, totalling 182 and occupies 8% in the total
decisional output of the Constitution Bench matters. The other centurions are
Hon’ble Justice M. Hidayatullah and S.M. Sikri. The former in his 2 year 9 months
tenure had disposed 114 five Judge, 12 six Judge, 07 seven Judge and 02 eleven Judge
Constitution Bench matters, totalling 135 and the latter in his 2 years 3 months tenure
had disposed 120 five Judge, 07 seven Judge and 01 thirteen Judge Constitution
Bench matters, thus totalling 128. Both the Judges share 6% in the total decisional
outcome of the Constitution Bench matters. It is significant to note that Hon’ble
Justices Mehr Chand Mahajan, K. Subba Rao, and K.N. Wanchoo though served only
for a short period as CJI i.e. less than one year, but able to dispose a substantial
number of Constitution Bench matters. The first Justice disposed 87 five Judge, 07
six Judge and 01 seven Judge, totalling 95. The second Justice disposed 59 five Judge,
02 nine-Judge and one eleven Judge, totalling 62. The third Justice disposed 47 five
Judge and 02 seven Judge, totalling 49 and they contribute 4%, 3% and 2% in the
total decisional outcome of the Constitution Bench matters respectively. There are
certain Chief Justices, who served for a considerable long period but did not
contribute much to the Constitution Benches. The foremost among them is Hon’ble
Justice Y.V. Chandrachud, who served for almost 7½ years as CJI and disposed only
90 Constitution Bench matters. The next in the line is Hon’ble Justice A.N. Ray, who
served for a period of almost 4 years and disposed only 87 matters; Hon’ble Justice
K.G. Balakrishnan, who served for 3 years and 3 months and disposed only 15
Constitution Bench matters and the lowest disposal has been recorded during his

155
tenure, and it was in the year 2009, where only one Constitution Bench matter was
disposed. Hon’ble Justice R.S. Pathak and Justice S.H. Kapadia, who served for
almost 2½ years but disposed only 26 and 16 Constitution Bench matters,
respectively. The Constitution Benches recorded an overall decline from 1973
onwards as stated earlier. It was also noticed that the larger benches came down from
Sikri to Chandrachud with the only exception of a large number of seven Judge
Benches constituted by Hon’ble Justice M.H. Beg. It was so because of the
mandatory requirement introduced by the Constitution (42nd Amendment) Act 131
which remained in operation during Beg’s tenure as CJI. 132 Beg has the highest
percentage in seven Judge panel than five Judge panel. He contributed 14 seven
Judge Bench matters in his total disposal of 20 Constitution Bench matters. After the
year 1990, when the Supreme Court was reeling down because of the heavy backlog
of cases and unable to find any effective solution to address it, many Chief Justices
did not concentrate on setting up of Constitution Benches and their disposal. In such
a situation, few Chief Justices came forward by understanding the importance of the
Supreme Court in constitutional adjudication and set up Constitution Benches despite
the huge backlog of cases. They are Hon’ble Justices M.N. Venkatachaliah, S.P.
Bharucha, R.C. Lahoti and R.M. Lodha. The first Justice served for 1 year 8 months
as CJI and disposed 24 five Judge, 02 seven Judge and 03 nine-Judge Constitution
Bench matters, totalling 29. The second Justice, who served only for 6 months and
had an exceptional record, wherein the disposal rate was 15 five Judge and 02 seven
Judge Constitution matters, totalling 17. The third justice who occupied the office of
CJI for 1½ years alone but has a remarkable record of disposal rate, where 30 five
Judge and 03 seven Judge Constitution Bench matters were disposed making it to
total of 33. Finally and the last Justice of the year 2014, who served only for 5
months and in the decade of neglect of Constitution Benches, he disposed 15 matters
that too within the short span of time is highly commendable. It is evident from the
above analysis that it is the interest of the Chief Justice, and their priority plays a vital

131
In view of this amendment, a new provision Art. 144A was inserted, which provides any matter
where any question as to the constitutional validity of any Central or State law is raised the same shall
be determined by a Bench consisting of not less than seven Judges. It is further provided that a Central
law or a State law cannot be declared unconstitutional unless the majority of not less than two-thirds of
the Judges sitting for the purpose so determine.
132
The Act had received President’s assent on Dec. 18, 1976. Beg’s tenure as Chief Justice coincides
substantially with the period during which this provision remained in operation because he took over as
Chief Justice on Jan. 30, 1977 and retired in Feb. 22, 1978. The provision was repealed by the
Constitution (45th Amendment) Act, 1977.

156
role in the administration process. After the 1970s, many Chief Justices gave
preferences only for clearing the appeal matters rather in constituting Constitution
Benches and disposal of the same. The zero percentage in the following pie-chart
does not mean that the concerned Chief Justice has not disposed any Constitution
Bench matter rather implies less than one percentage.

DISPOSED CONSTITUTION BENCHES OF THE SUPREME COURT

DURING THE TENURE OF FOLLOWING CJI FROM 1950-2014

HJKJ MPSJ MCMJ BKMJ SRDJ BPSJ PBGJ AKSJ KSRJ KNWJ MHJ
JCSJ SMSJ ANRJ MHBJ YVCJ PNBJ RSPJ ESVJ SMJ RMJ KNSJ
MHKJ LMSJ MNVJ AMAJ JSVJ MMPJ ASAJ SPBJ BNKJ GBPJ VNKJ
SRBJ RCLJ YKSJ KGBJ SHKJ AKJ PSJ RMLJ

0% 0% 1%
1%
0%
0%
1% 0% 0% 0%
0% 0% 1% 1%
1%
0% 1% 2%
1% 4%
0%
2% 4%
1%
1% 2%
0%
1%

8%
1%
4%

1%

4%

6%

0% 26%
6%

2%
3%

12%
0%

157
4.9.3 Types of Cases in the Disposed Constitution Bench matters:
The two pie-charts deal with the type of cases the Court decides in the
constitutional adjudication. The researcher ventured on the type of cases instead of
subject wise category. The subject wise category was not going to do much on the
issue of Constitution Bench matter and moreover, in constitutional adjudication,
whatever the subject may be, the substantial question of law as to the interpretation of
the Constitution is required. Each and every case involves issues in one or more
provision(s) of the Constitution. The type of cases will lead us to know ‘which type
of cases occupies more in constitutional adjudication, whether civil, criminal or writ?’
While analyzing case-wise, it has been found that a particular matter does not hold a
single type of case. If the constitutional question is raised in a case through criminal
appeal in a particular year, then next year a Writ petition may be filed for the same
question as a violation of fundamental rights. Similarly, it occurs in the civil appeal
and sometimes in Special Leave Petitions (Both Civil and Criminal). In such
instances, the researcher has given more importance only to writ petitions and counted
the case as Writ Petitions by ignoring other combinations like civil and criminal
appeal. The enforcement of fundamental right touching the question of Constitution
has to be given more importance than civil and criminal appeals. If a question
involves only one case type then there exists no problem but if there is a combination
particularly as civil and writ; criminal and writ; the writ petitions is given priority. In
the collection of data, besides civil, criminal and writ, the original suit, i.e. the
exercise of jurisdiction under Art. 131 is also calculated. The advisory jurisdiction
exercised by the Supreme Court in tendering advice to the President on the
constitutional question is also classified as one of the types as ‘special reference.’ The
miscellaneous matters such as review, contempt, etc. are marked as others, in which
some substantial constitutional questions arose in it. Thus, the researcher has
classified six types of cases in constitutional adjudication. The total civil appeal alone
occupies 57%, which holds large chunk in the constitutional adjudication. The next is
writ petitions touching the constitutional questions, in which it has combination either
with civil or criminal appeal and occupies 31%. The third is a criminal appeal, which
alone holds only 9% of the total outcome of the constitutional decisions. The
category under ‘others’ involves review, reference, contempt, etc. and it occupies just
2%. The special reference under Art. 143 of the Constitution holds just 1% and the
original suit where matters arising under Art. 131 is less than 1% of the total

158
constitutional decisions. From the above analysis, it is clear that the civil appeal
touching the constitutional questions is more followed by the writ petitions.
However, the criminal appeals unexpectedly hold only less in constitutional
adjudication.

TYPES OF CASES AND THEIR DISPOSAL RATE IN THE

CONSTITUTION BENCHES DURING 1950-2014

Spl.Ref.; 13 Others; 50
O.S.; 7

W.P. & etc.; 697

C.A.; 1269

Crl.A.;
195

TYPES OF CASES AND THEIR DISPOSAL RATE IN THE

CONSTITUTION BENCHES DURING 1950-2014

C.A. Crl.A. W.P. & etc. O.S. Spl.Ref. Others

1% 2%
0%

31%

57%

9%

159
4.9.4 Bench-wise disposal of Constitution Benches:
The minimum requirement for Judges to sit for constitutional adjudication is
five. That being said, during initial years of the functioning of the Supreme Court, it
is normal for the Constitution Bench to sit as six-Judge Bench and it heard a large
number of matters. There was no fixed criterion that the Bench should have only an
odd number to decide any constitutional case. To avoid the Bench equally divided,
the odd number is preferred. There are instances of eight-Judge Bench in the
Supreme Court Constitution Bench on two occasions besides six-Judge Bench on
nearly fifty times. The seven-Judge Bench also occupies a substantial portion not for
reviewing an earlier Constitution Bench decision, which was decided by five Judges
but constituted as a mandatory requirement imposed by the 42nd Amendment Act,
which was discussed in detail above. 133 It is significant to note that the Constitution
Bench sat in nine-Judge Bench for 16 times i.e. almost 1% of the entire Constitution
Benches, eleven-Judge Bench for five times and thirteen-Judge Bench for only one
time. The majority panel in the Constitution Bench is five-Judge Bench, which holds
94% and next is the seven-Judge Bench, which holds 3% and the six-Judge Bench has
2%.

DISPOSED CONSTITUTION BENCHES OF THE SUPREME

COURT IN BENCHWISE DURING THE PERIOD 1950-2014

75; 3% 16; 1% 5; 0%
2; 0% 1; 0%

48; 2%
5
6
7
8
9
11
13

2104; 94%

133
Supra note 131 and 132.

160
4.9.5 Duration for disposing of a Constitution Bench matter:
The most significant analysis in the disposal of Constitution Bench matter is
the time factor. As mentioned, the researcher could not get any data relating to the
setting up of Constitution Bench by the Chief Justice from the date of reference for
constituting the Constitution Bench. For instance, in the case of Brahmosamaj
Education Society v. State of West Bengal,134 the petitioner challenged West Bengal
College Service Commission Act, 1978 in 1983 through a writ petition. The two-
Judge Bench 135 of the Supreme Court held that the State cannot intrude in the
selection process of teachers by putting additional qualification although if the
institution is aided. However, the State of West Bengal filed a review petition and in
2008, the three-Judge Bench136 in the case of State of West Bengal v. Brahmosamaj
Education Society137 referred to the Constitution Bench and of late, the CJI Thakur
has constituted the Bench and it started hearing on January 11, 2016. A case which
was filed in the year 1983 is still unsettled because of delay in referring as well as
setting up of Constitution Bench. The delay in disposing of the Constitution Bench
matter is a serious issue and could not be equated to the delay in disposing of the
ordinary appeal. Many important socio-politico and economic problems were
connected with the Constitution Benches. The delay in disposal of constitution
matters will create a serious repercussion in country’s development process because
of uncertainty in law and chaos follows through it. It is significant to note the method
of collection of the data for this purpose. It is wise to say that Constitution Bench
matter instead of Constitution Bench case. A similar constitutional question will not
arise only in one case at a single place (in any of the High Courts or the Supreme
Court of India). A constitutional question may arise through different cases in
different places and finally may come to the Supreme Court under the civil or
criminal category. At times, if it is a violation of fundamental right, then the case may
be filed directly in the Supreme Court under Article 32 of the Constitution of India.
Besides writ petition, the same case may crop up to the Supreme Court either through
civil appeal if it is a civil matter or criminal appeal if it is a criminal matter.
Moreover, it need not necessarily come to the Supreme Court in that particular year
134
(2004) 6 SCC 224.
135
Hon’ble Chief Justice Rajendra Babu and Justice G.P. Mathur.
136
Hon’ble Chief Justice K.G. Balakrishnan and Hon’ble Justices P. Sathasivam and J.M. Panchal.
137
Review Petition (Civil) Nos. 1850-1851 of 2005 in Writ Petition (Civil) Nos. 9683-9684 of 1983
dated 31st July, 2008.

161
alone. It may come at a different year in different periods. For example, a
constitutional question may be raised through a civil appeal in the year 2001 from
Chennai High Court. A same question may be raised from Mumbai High Court in the
year 2003, and it may violate fundamental rights of the citizens, for which writ
petition may be filed by raising the same question under Article 32 in the year 2005
from a Delhi citizen. In such circumstances, the exact year of the origin of the case in
the Supreme Court is in the year 2001. Even though there are so many petitions were
filed after all these years, the earliest year in which the case was numbered has been
taken along with the date of disposal of that particular Constitution Bench matter.
The date of judgment can be traceable, but the date of filing the case is not traceable,
so left with no other option, the researcher has relied on only the year. From the year
of judgment, the earliest year in which the case was numbered has to be deducted to
know the number of years in the disposal of that particular Constitution Bench matter.
The researcher has undergone this method for each and every Constitution Bench
matter and found that there are 480 Constitution Bench matters were disposed within
less than one year. Whereas, the longest delay was occurred for the case of I.R.
Coelho (Dead) by Legal Representatives v. State of Tamil Nadu and Others,138 where
a civil appeal was numbered as 1344-45 of 1976 and the date of judgment was on
11/01/2007. Hon’ble Justice Y.K. Sabharwal was the Chief Justice when it was
disposed by a nine-Judge Bench. Although the civil appeal number shows the year of
filing as 1976, this case actually emerged from Waman Rao v. Union of India,139
where the Court while holding that Art. 31B was a valid constitutional amendment
drew a line at 24.04.1973 for upholding laws in the Ninth Schedule, which were
protected by Art. 31B. It created further problems of inconsistencies. As late as
September 1999, a Constitution Bench in I.R. Coelho’s case referred the issues arising
from Waman Rao’s case to a larger Bench causing the delay of more than 30 years.
The matters delayed beyond 25 years is very minimal. There were no matters delayed
more than 29 years and less than 31 years and similarly for 28<27 years and 26<25
years. However, in Arya Samaj Education Trust v. Director of Education, Delhi,140
the Supreme Court took almost 29 years to dispose it. Originally, the case was
numbered in the year 1976 as civil appeal and numbered as Civil Appeal No. 687 of

138
A.I.R. 2007 S.C. 861.
139
A.I.R. 1981 S.C. 271; (1981) 2 S.C.C. 362; (1981) 2 S.C.R. 1.
140
(2004) 8 S.C.C. 30.

162
1976, and the date of judgment was on 08/09/2004. Further, the case of T.M.A. Pai
Foundation and Others v. State of Karnataka and Others141 took almost 26 years to
dispose. The matter was originally numbered as a writ petition and along with so
many writ petitions were filed plus transfer petitions and transfer cases. The earliest
year was numbered as Writ Petition (Civil) Nos. 252 of 1979 and the date of judgment
was on 31/10/2002. The matter related to the issue of reservation in the private
educational institution and was decided by eleven Judge Bench under the Chief
Justice of B.N. Kirpal. The Judgment was famous for ambiguity than clarity. The
ambiguity was broadened by Islamic Academy case, which actually set it to clarify the
TMA Pai caese. The P.A. Inamdar case to a certain extent clarified it although it is a
five-Judge Constitution Bench. In the first decade i.e. 1950 to 1959, the cases were
disposed with the utmost delay of five to six years. During the second decade, the
initial period of the 1960s, the Court disposed certain cases by waiting nine to ten
years. However, from 1964 to 1970, the Court did not cross six year period in
disposing a Constitution Bench matter. Likewise, from 1971 to 1980 and 1983, the
delay rose to ten to eleven years for certain cases, and many cases took at least 6 to 7
years to dispose. From 1985 to 2000, there are many numbers of cases, where the
Court took more than ten years and in certain cases even up to twenty years to dispose
it. From 2001, there were certain cases, where delay went up to 29 years in disposing.
This state of affairs existed till 2007 and not after that because the Supreme Court was
able to clear many backlogs of Constitution Bench matters within 2007. From 2008
to 2013, there were a lesser number of cases, and there were few cases which touch 15
years or so in disposing. However, in 2014, one can witness that a case was disposed
24 years from the year of numbering in the Supreme Court. The recent data relating
to the pendency of the Constitution Benches in the monthly pending cases of the
Supreme Court website shows 29 as on 01.03.2015. The constitution Bench matters
took less than one year for disposal occupies 22%. The 32% goes to the matters which
almost took two years, the matters which took almost three years holds 17%. The
matters which is less than four years holds 9%, the 7% of the matters were disposed
within 5 years, the matters which took almost six years occupies 4%. Then, 2% of
matters were disposed by taking the period of nearly seven years. However, the

141
A.I.R. 2003 S.C. 355.

163
remaining matters which took more than seven years for its disposal are less than two
percentage in each category.

DURATION FOR DISPOSING A CONSTITUTION BENCH MATTER

(IN YEARS)
1<0 2<1 3<2 4<3 5<4 6<5 7<6 8<7
9<8 10<9 11<10 12<11 13<12 14<13 15<14 16<15
17<16 18<17 19<18 20<19 21<20 22<21 23<22 24<23
25<24 26<25 27<26 28<27 29<28 30<29 31<30 32<31

19<18; 4 21<20; 5 22<21; 3

16<15; 8 20<19; 5 24<23; 3 26<25; 0
17<16; 10 23<22; 1 32<31; 1
15<14; 5 18<17; 12 25<24; 1
14<13; 6 27<26; 1 28<27; 0
13<12; 11 29<28; 1
12<11; 18 30<29; 0
11<10; 12 31<30; 0

9<8; 23 10<9; 29
8<7; 26
7<6; 42

6<5; 82 1<0; 480

5<4; 150

4<3; 203

2<1; 717
3<2; 372

164
 DURATION FOR DISPOSING A CONSTITUTION BENCH MATTER
(IN YEARS)
1<0 2<1 3<2 4<3 5<4 6<5 7<6 8<7
9<8 10<9 11<10 12<11 13<12 14<13 15<14 16<15
17<16 18<17 19<18 20<19 21<20 22<21 23<22 24<23
25<24 26<25 27<26 28<27 29<28 30<29 31<30 32<31

0% 0%
0% 0% 0%
0% 0% 0%
0% 1% 0%
0% 0% 0% 0%
0% 0%
1% 0%
0% 0%
1%
1% 1%
1%
2%

4% 22%

7%

9%

32%
17%

165
 Thus, the data gathering concerning Constitution Benches posed a significant
challenge. The time taken for constituting each and every Constitution Bench since
2001 has been attempted even through RTI but failed miserably. Left with no other
option, the researcher ventured the disposal of the Constitution Benches from 1950-
2014. There were certain problems existed in the collection of data on the disposed
matters. Although the Supreme Court website provides data concerning Constitution
Benches, it lacks accuracy and the data collected were put to cross-references to
minimize errors and to make negligible, thereby confirming that it would not affect
the interpretation of the data. The procedural aspect in hearing constitutional matter
has been analyzed the minimum requirement of Judges mainly to hear the substantial
question of law as to the interpretation of the Constitution. In connection to it, the
advantages and disadvantages of the large and small Benches have been analyzed
thoroughly with the example of Kesavananda case and NJAC case. The Constitution
Assembly Debates were also examined concerning the optimal size i.e. five Judges to
determine the constitutional adjudication, but unfortunately, no debates took place
concerning the essential minimum requirement for constitutional adjudication.
However, finally, ‘five’ in number to decide the constitutional question seemed to be
an optimal size. The importance of the office of the CJI in constituting Constitution
Benches and picking Judges thereon is critically examined. Further, the judicial
impropriety of the smaller Bench in referring the matter to the large Benches say five
or seven without placing it before the CJI for his perusal according to Rule 2 of Order
VI of the Supreme Court Rules, 2013 poses a dangerous practice. It thwarts the
discretion of the CJI in constituting Constitution Benches and the cases which dealt
with the functioning of two-Judge Bench in finding fault with the earlier larger Bench
decision. And, passing an order of reference to form larger Benches has also analyzed
in the light of the requirement of judicial propriety required for smaller Benches in
following the decisions of the larger Benches. The analysis of the Constitution
Benches in different dimensions provides a great insight into the functioning of the
Constitution Benches in India. The rate of disposal each year from 1950 to 2014 and
the contribution of the CJI in the disposal of the Constitution Benches in different
periods provide great information about the attitude of the CJI towards the importance
of the Constitution Bench matters. In this connection, the performance of the present
Chief Justice Hon’ble Justice T.S. Thakur in the Bench composition is commendable.
Although, the researcher has confined his study till 2014, it is very significant to

166
mention the changes brought out by the Hon’ble CJI in handling of constitutional
matters. He scrapped the Social Justice Bench founded by his predecessor Hon’ble
Justice H.L. Dattu and constituted Constitution Benches since January 11, 2016.
They said Constitution Bench will hear matters on the afternoon of Mondays and
Fridays of every week.142 The first day of the constitution of the Constitution Bench
i.e. on Jan. 11, 2016, the Hon’ble CJI created history by constituting three different
Constitution Benches with fifteen Judges at a time. 143 Moreover, he is constituting
more Constitution Benches. The constitutionality of Sec. 377 of I.P.C. was referred to
the Constitution Bench and still more to see from him. Concerning the types of case
and their disposal rate, the civil cases were outnumbering the criminal and even the
fundamental rights jurisdiction of the Supreme Court by occupying nearly 57% in the
total disposal of the Constitution Bench matters leaving the remaining 43% to the
other categories. The bench-wise disposal and the contribution of each CJI in the
bench-wise disposal rate have also been analyzed. The most significant and important
analyzation of all is the duration of disposing each Constitution Bench from 1950 to
2014. After 1970s, the Court took many years for disposing Constitution Bench
matters. The analyzation of data provides startling outcome where a substantial
number of Constitution matters were disposed of after a long period of twenty years
or so. Hence, it is highly significant to mention that the majority of Constitution
matters were disposed of by an average of three to four years. Further, regular piling
up of cases particularly in the Constitution Benches requires a serious thinking and
poses a question ‘whether the Supreme Court of India is actually functioning as a
Constitutional Court or not?’

142
Report of SCOI, CJI Thakur makes crucial changes in bench composition, constitutes constitution
bench, leaves fate of social justice bench uncertain, LEGALLY INDIA, Dec. 26, 2015,
http://www.legallyindia.com/scoi-reports/scoi-report-cji-thakur-makes-crucial-changes-in-bench-
composition-constitutes-two-constitution-benches-leaves-fate-of-social-justice-bench-uncertain
143
Report of SCOI, For first time ever, 3 SC constitution benches with 15 Judges sat today, LEGALLY
INDIA, Jan. 15, 2016, http://www.legallyindia.com/scoi-reports/for-first-time-ever-3-sc-constitution-
benches-with-15-judges-sat-today.

167