Bench strength: CJI must move fast to create permanent constitution benches, which will address one part of case pendency

CJI Chandrachud has said that constitution benches of different strengths shall henceforth be a permanent feature of the Supreme Court. This reform has been long awaited and should be expedited. For example, Article 145(3) stipulates hearing by a minimum of five judges for any case involving a “substantial question of law” regarding the interpretation of the Constitution. And there are 306 cases pending decisions by such five-judge benches. Another 135 await nine-judge benches. To be clear, this means five main and 130 connected cases. This also indicates the substantiveness of large-bench judgments, which have a wide-ranging and long-lasting impact. A telling example is the “basic structure” doctrine introduced into the body politic by the 13-judge bench in the Kesavanada Bharati case.

But why has this reform been so difficult? While the US Supreme Court has the luxury of hearing only constitutional matters, India’s apex court has an extremely diverse pendency of over 80,000 cases. It is a “people’s court” after all. So, when a nine-judge bench sits, it takes up 26% of the court’s sanctioned strength of 34 judges. When tenures like that of CJI Ramana see no constitution bench hearings, it is seen as a question of prioritising people’s matters against ‘fancy’ constitutional ones. While this distinction is patently false, the point here is that some kind of balance must be found, which is not dependent on the personality of the CJI but is systemic.

The subordinate courts for example have to really step up. On bail, SC repeatedly finds that “the trial courts are not appreciating the ambit of its orders”, which greatly increases the pressure on its docket. But without more constitution benches, the ambit of Indians’ fundamental rights will not expand either.

END OF ARTICLE