Interpreting the Constitution: Supreme Court Constitution Benches

Interpreting the Constitution:
Supreme Court Constitution
Benches since Independence
Nick Robinson, Anjana Agarwal, Vrinda Bhandari, Ankit Goel, Karishma Kakkar,
Reeba Muthalaly, Vivek Shivakumar, Meera Sreekumar, Surya Sreenivasan,
Shruti Viswanathan
Constitution benches have
been vital for Supreme Court
jurisprudence. But, the number
of these benches has fallen since
the 1960s. This article examines
all constitution benches from
independence until the end
of 2009. Using this analysis,
which paints a far more textured
picture of these benches than
has previously been available, it
makes recommendations to help
strengthen the Supreme Court’s
constitution benches.
We would like to thank Aparna Chandra,
Aditi Srivastava, Asma Tajuddin, Madhav
Khosla, Pratap Bhanu Mehta, Siddhartha
Gupta and Vikram Raghavan for their
assistance with this article.
Nick Robinson ([email protected]) is
with Jindal Global Law School, Haryana.
Anjana Agarwal ([email protected]),
Ankit Goel ([email protected]),
Karishma Kakkar ([email protected]),
Vivek Shivakumar ([email protected]
com), Surya Sreenivasan ([email protected] and Shruti Viswanathan (shruti.
[email protected]) have graduated from
the National Law School at Bangalore in law.
Vrinda Bhandari ([email protected]),
Reeba Muthalaly ([email protected]) and
Meera Sreekumar ([email protected])
are currently studying law at the National Law
School, Bangalore.
Economic & Political Weekly
february 26, 2011
he Indian Supreme Court spreads
out over more than a dozen bustling Court rooms. Stepping into
one of these rooms, most days a visitor
will find two, or maybe three, judges
disposing of a long list of matters, from
the mundane to the controversial. Today,
these smaller benches take up most of the
Court’s work. But the Constitution also
requires that the Court sit in larger benches,
stating that at least five judges must
decide any case “involving a substantial
question of law as to the interpretation” of
the Constitution.1 Such five-judge or larger
benches are traditionally known as constitution benches, and have decided many of
India’s best-known and most important
Supreme Court cases, such as A K Gopalan
vs State of Madras, AIR 1950 SC 27 (right to
life); Kesavananda Bharati vs State of Kerala,
AIR 1973 SC 1461 (basic structure doctrine);
and Ashoka Kumar Thakur vs Union of
India (2008) 6 SCC 1 (reservations).
Yet, despite these benches’ central role
in the Court’s constitutional jurisprudence, their number has been on the
decline. While the Court averaged about a
100 five-judge or larger benches a year in
the 1960s, by the first decade of the 2000s,
this had decreased to about nine a year.
Viewed in this light, despite deciding
about 5,000 regular hearing cases a year
in the 2000s, the Indian Supreme Court
arguably produces less jurisprudence
involving substantial questions of constitutional law than a Court like the United
States Supreme Court, which wrote just 72
judgments in 2009, but whose cases often
involved such questions.
Beyond this mere decline in numbers, it
seems intuitive that other changes are
also occurring on constitution benches. To
examine what these changes might be we
systematically analysed all constitution
bench decisions we could identify from
vol xlvi no 9
independence through the end of 2009
(1,532 cases). We found that even as constitution benches have become less frequent, their judgments have become longer,
more prone to split decisions, increasingly
delayed, and more likely to have been
brought under both appellate and writ
jurisdictions. In fact, given the more convoluted nature of these decisions in recent
years, it has become increasingly difficult
to even determine the winning party. That
said, appellants/petitioners now do better
than respondents before constitution
benches, while the government continues
to do disproportionately well and companies have significantly improved their
records. The Court is relatively open to
citing foreign judgments, although it cited
them most frequently in the decade after
Meanwhile, the chief justice plays a
dominant role in not only choosing when
constitution benches are heard, but also
which judges will hear the case. Perhaps
tellingly, he has been in dissent only 10 times
on a constitution bench since independence.
A more detailed history of the constitution bench is helpful when weighing the
merits of current Supreme Court reform
proposals. Some of these proposals are
discussed at the conclusion of this article,
where we argue that, more constitution
benches should be encouraged, as well as
clearer, shorter opinions, and a less dominant role for the chief justice.
The work presented here builds on
others. George H Gadbois Jr undertook a
review of the voting behaviour of all
Supreme Court judges from independence
until 1967 (Gadbois 1970). Rajeev Dhavan
has painstakingly looked at the changes in
the Supreme Court’s docket from independence to the 1980s (Dhavan 1986).
However, no work that we are aware of,
has systematically analysed the Supreme
Court’s constitution benches from independence to the present day. It is into this
gap which this article steps.
History of the Constitution Bench
Despite being almost an anomaly today, the
five-judge bench has long been considered
vital to the Court’s work, and it was originally envisioned that its sittings would be
routine. In the 1950s, about 13% of the
Court’s decisions were from five judge –
or larger – benches. However, as Table 1
shows, as the number of backlogged cases
increased, it sat less often on these larger
benches, presumably because the Court
was now preoccupied with smaller benches.
In particular, the more populist era immediately following the Emergency
increased an access to the Court, exacerbating its pendency problems. There were
on average 71 five-judge or larger benches
per year before the Emergency, and
just 11 per year after. This decline was despite the Court increasing its number of
judges in 1956 from 8 to 11, and then,
again in 1960 (14), 1977 (18), 1986 (26)
and 2008 (31).
Table 1: Average Number Per Year of Five +Judge
Benches, Regular Disposals and Pending Cases
Five+ Judge
Five+ Judge
Benches as %
of Disposals
Source: Supreme Court of India Annual Report (2009)
and All India Reporter (AIR).
Constitution benches were not the only
victims of the Court’s backlog. After independence, it was felt that all benches
should have “at least three judges as a
rule”2 to provide an adequate hearing for a
case. Yet, by the 1970s, the number of reported two-judge judgments surpassed
the number of reported three-judge judgments, and two-judge benches are now
considered the norm.
There is no case law which defines
when a case poses a “substantial question” of constitutional law, and must
therefore be decided by a constitution
bench. Instead, such cases are historically
referred to the chief justice by smaller
benches. The chief justice can then place
the matter before a larger bench if he
thinks it appropriate.3
This ambiguity has meant that many
cases, perceived to involve a “substantial
question” of constitutional law, have been
settled by two- or three-judge benches,
especially in recent years. For example,
Selvi vs State of Karnataka (2010) 7 Sec
263, a landmark case from last year that
struck down the use of narco-analysis
without consent as unconstitutional was
decided by three judges. Most public interest litigation, from far-reaching environmental matters to the right to food case, is
decided by smaller benches as well.
the time. In India, in 11% of constitution
benches, there was a majority with at least
one dissent; while a majority with only a
concurrence (8%) or a majority with both
a concurrence and dissent (4%) were
somewhat less common.
However, as Figure 1 shows there has
been an increase in split decisions since
the 1970s, with only a brief revival towards
unanimity in the late 1990s. It is not
clear that judges now disagree with each
other more. Instead, in hearing fewer
constitution benches in recent years, the
We systematically tracked a range of criteria
for every constitution bench decision from
1950 to 2009 in the All India Reporter (AIR)
electronic data Figure 1: Judge Voting Patterns (in %)
base, one of the 90
standard law re- 80
porters. We also
cross-referenced 60
this source with
Court’s online
Dissent only
Concurrence only
Judgment Infor20
mation System.
AIR lists 2,094
five-judge or lar- 0
1950-54 1955-59 1960-64 1965-69 1970-74 1975-79 1980-84 1985-89 1990-94 1995-99 2000-04 2005-09
ger cases during Each data point represents an average for a five-year period. For example, from 1980 to 1984 an average of
this time period. 51% cases were unanimous, while 23% had only a concurring opinion, 13% had only a dissent, and 13% had
a dissent and a concurrence. In the last three decades, there were an average of 40 constitution benches in
Out of these, we each five-year period, compared to 215 in each five-year period prior. Therefore, greater fluctuations seen in
the last three decades may sometimes simply reflect this smaller data set.
identified 1,532
as constitution benches, while determin- Court might also be hearing more cases
ing that the remaining 562 cases did not that the judges are likely to be divided
involve any question of constitutional in- in deciding.
terpretation. These cases did not reference
the Constitution and were frequently on Jurisdiction
shorter service, criminal or tax matters.
A small number of constitution bench
cases may not have been included in AIR.
Further, some cases that we counted as
constitution bench cases may not involve
what some might consider a “substantial
question” of constitutional law. However,
since the Court has not defined what a
“substantial question” is, we erred on the
side of inclusion if the Constitution was
mentioned. We feel confident that this
data set at least allows us to accurately
portray the general trends in constitution
benches which this paper analyses.
Judge Voting Patterns
Since independence, most of the constitution bench decisions (76%) consist of a
single majority opinion with which all the
other judges agree. By way of comparison,
in the 2000s the US Supreme Court had a
unanimous opinion well less than half
Historically, over 60% of constitution
benches were receiving appeals (Figure 2,
p 29). While about 30% of the time they
were brought directly to the Court under
its writ jurisdiction, 6% of the time the
same case was both appealed and brought
under writ jurisdiction. The remaining 4%
of constitution benches were presidential
references, election matters, or cases of one
government bringing a case against another
under Article 131 of the Constitution.
Jurisdiction patterns though have not
remained constant. From 1980 to 1994 the
number of constitution benches based on
a writ petition actually overtook the
number of those which were appeals, perhaps because this period was in the immediate wake of the Court relaxing its locus
standi rules. Additionally, over the past
three decades, an increasing number of
cases are being brought under both writ
and appellate jurisdictions.
february 26, 2011
vol xlvi no 9
Economic & Political Weekly
Second, although time), the government wins approximately
the government has 54% of the time.
The reason the government does disalways done well as
a litigant, its record proportionately well in the cases surveyed
has improved over could have multiple causes. The governthe past decade, and ment may use more scrutiny to screen the
there are more cases cases it decides to pursue before the Court
in which the govern- than other litigants, or have superior re20
ment is the appel- sources to represent itself. Alternatively,
lant/petitioner dur- since the government frequently defends
legislation, which is presumed valid, from
1950-54 1955-59 1960-64 1965-69 1970-74 1975-79 1980-84 1985-89 1990-94 1995-99 2000-04 2005-09 ing this period (up
from 11% in the constitutional challenge, this could help
Figure 3: Winning Party (in %)
1980s to 24% in the its record.
A few high courts seemed to fare better
2000s). Companies’
Respondent wins
others when reviewed. For example,
lenging party in the Delhi High Court was affirmed 70% of
recent years have the time historically, and the Kashmir
also become mark- High Court 73% of the time. On the other
end of the spectrum, the Gujarat High
edly better.
About half of all Court had an affirmation rate of 38%.
constitution bench Still, these statistics by themselves do not
Not clear
cases involve an indicate that the Supreme Court favours
individual bringing any particular high court. Instead, they
either an appeal or reflect that certain types of appeals with
1950-54 1955-59 1960-64 1965-69 1970-74 1975-79 1980-84 1985-89 1990-94 1995-99 2000-04 2005-09
writ petition against higher success rates arise out of some high
Winning Party and Appeal
the government. The individual though courts over others.
Since independence, there has been a 33% does relatively poorly in these cases, winchance the appellant/petitioner will win a ning about 26% of the time, a win-ratio Length and Foreign Citation
constitution bench decision; a 60% chance which has remained steady throughout the Opinions have been getting longer. In the
the respondent; and a 7% chance that either Court's history.
1950s and 1960s, about 10% of majority
The next most common type of case (at opinions were above 10 pages (or 109
no side wins or the decision is too mixed
to determine a clear winner (Figure 3). In about 16%) is companies challenging cases). By the 1990s and 2000s over
the last 15 years though this trend has the government (again either on appeal 50% were over 10 pages (or 87 cases). It is
reversed and the appellant/petitioner now or writ). Traditionally, companies win important to note that in raw numbers
wins just as much, or slightly more often, against the government only slightly more there has not been as marked a decline in
than the respondent. Cases in which it is than individuals, or about 33% of the time. longer opinions by constitution benches.
unclear which side has won have also Yet, their record has been improving, in- This could support an argument that the
grown in frequency as decisions increas- creasing from 13% of the time in the 1980s overall decrease in constitution benches
to 70% in the 2000s. (This sample set is has not been as detrimental to constiingly involve more parties and issues.
The improvement of appellants’/peti- too small to find constitution benches are tutional jurisprudence as one might initioners’ victory record correlates with at becoming more sympathetic to companies’ tially suppose. Constitution benches in
least two other factors we tracked. First, cases, as there were only 16 such cases in the Court’s early years were far less likely
appellants win more often when they the 1980s and 10 in the 2000s, but could to produce longer, and presumably, more
bring an appeal from a high court (38% of be indicative of such a claim.)
meaningful, decisions. Indeed, in the
The next most Figure 4: Length of Majority Judgment (in pages)
the time) than compared to petitioners in
writ petitions (28% of the time). Therefore, common case (at 100
the return of appellant rates to higher, 15%) is the gov- 90
more traditional levels after the spike in ernment challeng- 80
writ petitions from 1980 to 1994 may have ing an individual.
helped improve the record of the challeng- Here the govern50
ing side overall. Strangely, in cases brought ment wins about
under both appellate and writ jurisdictions, 53% of the time.
the appellants/petitioners only have a 22% Similarly, when the 20
Over 25
chance of winning, although that chance government chal- 10
has improved markedly in the last two lenges a company 0
1950-54 1955-59 1960-64 1965-69 1970-74 1975-79 1980-84 1985-89 1990-94 1995-99 2000-04 2005-09
(about 4% of the
decades (and was at 36% in the 2000s).
Figure 2: Jurisdiction (in %)
Economic & Political Weekly
february 26, 2011
vol xlvi no 9
1950s and 1960s, over 60% of majority
judgments were less than five pages,
seemingly deciding little of constitutional
This argument though may overconflate
length with constitutional importance.
There are frequent complaints that today’s
decisions are, in fact, too long, adding
confusion rather than clarity with additional pages. In the four-year period from
2006 to 2009, there were 12 constitution
bench decisions, of which three (or 25%)
were over 100 pages and two (or 17%)
were over 200 pages, making determining
the law an almost monumental reading
feat. Some contend that the increasing
length of decisions was driven by the introduction of computers into the Supreme
Court in the 1990s, allowing judges to
cut and paste lengthy excerpts from the
parties’ briefs and previous decisions with
new ease. Our analysis provides some support to this claim as decisions saw a jump
in average length in the 1990s and 2000s
and are now longer than ever before. Still,
judgment length was already increasing
in the 1970s and 1980s before the introduction of computers.
The length of judgments could also
be driven by the increasing number of
split decisions as judges feel they
need more space to explain differences
with their colleagues. Providing some
evidence for this theory, in the late 1990s,
when there was a spike in unanimous
decisions, there was also a marginal
decline in the percentage of lengthy
majority opinions.
In its judgments the Court has frequently cited foreign cases, which are not
binding on the Court, but are cited for
their persuasive value. In the 1950s and
1960s about 70% of cases cited to less than
five cases, and so were far less likely to
cite a foreign case than later decisions. To
control for this phenomenon, we isolated
cases that had five or more citations
across all years.
As Table 2 shows we found that amongst
these cases foreign citation was greatest
(71% of cases) immediately after independence, when the Court was also much
more likely to rely on cases from the UK
over the US or other jurisdictions (countries
like Canada, Australia, New Zealand and
South Africa, although rarely neighbours
like Pakistan, Sri Lanka and Bangladesh).
Table 2: Frequency (%) Court Cites to Foreign
and Pre-independence Cases in Judgments
with Five or More Cites
Foreign Overall UK
Cases from pre-independence India,
such as federal court and high court decisions under British rule, were cited at the
greatest rate (62%) in the 1950s, immediately after independence, after which their
citation goes into general decline.
Time in Court
Historically, 71% of all constitution bench
cases were decided within two years of being filed in the Supreme Court; and just 6%
took eight years or more. Backlog though
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february 26, 2011
vol xlvi no 9
Economic & Political Weekly
has created a significant delay in the Court’s
constitution bench docket. By the 2000s,
just 27% of constitution benches were decided within two years of being filed in the
Court and 39% took eight years or more.
It is difficult to classify constitution
benches by topic. One case might involve
several topics; and different observers
can reasonably disagree about how to
best categorise the case. We encountered
such difficulties while trying to categorise cases and so do not present detailed
information about the topics of constitution benches.
We are confident enough though to
broadly say a few things. After the Emergency, the frequency of cases involving
reservation, the right to life and minority
institutions all increased, along with cases
involving elections and criminal and company law. Meanwhile, cases involving the
interpretation of pre-independence legislation and the right to property (which
was removed as a fundamental right in
1978) became less prevalent. Service and
tax matters, which represent about a
quarter of all constitution benches, seem
to have remained relatively constant in
prevalence since independence.
Chief Justice
The Indian Supreme Court can be described as chief justice-dominant. The chief
justice plays a prominent role in appointing
new judges, filtering public interest litigation, assigning cases to judges, and is the
Court’s best-known spokesperson. He
performs a similarly dominant role in relation to constitution benches.
The chief justice has historically sat
on about 77% of constitution benches, and
wrote the majority opinion in 21% of
them. His presence on these benches has
declined somewhat in recent years and
was at 60% in the 2000s, but he still disproportionately sits on these cases. Historically, the presence of the chief justice
may make it slightly more likely that there
will be a unanimous decision or a decision
without a dissent. Still, the difference is
marginal, and this trend seems to reverse
itself in the 1990s and 2000s.
In any given vote on a constitution
bench, there has been about a 5.2% chance
Economic & Political Weekly
february 26, 2011
a judge will dissent. However, if it is the
chief justice that is voting that chance decreases to 0.8%. Strikingly, we could only
locate 10 times the chief justice has been in
dissent in the history of all constitution
benches (he wrote a dissenting opinion in
eight of these cases). This record may indicate that the chief justice is potentially
picking benches that are more likely to
decide in a way that he favours.
George Gadbois Jr documented this
phenomenon in the Court’s early years,
finding that Chief Justice K Subba Rao,
with his stark anti-government bias was in
dissent more than any other judge before
becoming chief justice. After becoming
chief justice though he was never in
dissent, while the entire Court gave more
anti-government decisions than ever
before (Gadbois 1970: 166).
This discrepancy between the chief
justice and other judges’ dissent rates,
although still substantial, has become
much less pronounced in recent years. For
example, in the 1960s, another judge was
27 times more likely to be in dissent than
the chief justice. By the 2000s, this had
become four times as likely. These results
might seem counter-intuitive if one
thought the chief justice was inclined to
pick benches whose decision preferences
were more likely to match his own. More
judges to choose from would arguably
make this easier. Still, more judges could
also make it more difficult for the chief
justice to predict any specific judge’s
voting behaviour in advance.
The Supreme Court’s attention has been
diverted by thousands of more mundane
decisions at the expense of developing its
constitutional jurisprudence. As of November 2010, there were 754 five-judge or
larger matters pending to be heard for
regular hearing in the Supreme Court.
A lthough many of these matters could be
clubbed together to be heard in fewer
hearings, this still represents a major backlog of vital constitution bench matters.
The Indian Law Commission in 2009
proposed creating a dedicated constitution
bench in Delhi and cassation benches in
four regions of the country to improve access and deal with backlog.4 Proposals to
allow the Court to hear more constitution
vol xlvi no 9
benches should be welcomed, but they do
not necessarily need to involve the Court’s
division or the addition of more judges. For
example, the Court could more strictly filter the numerous relatively ordinary matters it hears before smaller benches, and
create a dedicated constitution bench on
which judges would rotate.
Renewed attention on constitution
benches should also address other concerns.
The Court should endeavour for clearer
decisions, which might sometimes involve
shortening judgments. Further, constitution
benches could be selected randomly to
ensure that the chief justice does not have
too much power in picking which judges
sit on these benches. The chief justice’s discretion in deciding when constitution
benches are heard could also be reduced.
Any reform of the Supreme Court will
require a clear understanding of both its
workload and output. It is hoped that an
analysis such as that presented here will
help the Supreme Court in taking control
of its sprawling docket, reversing the current situation in which the Court’s docket
too often controls the Court.
Constitution of India, Article 145(3).
K K Basu speaking in debate over Supreme Court
(number of judges) Bill, Lok Sabha debates,
20 August 1956, 3,809.
See, Bengal Immunity Company vs the State of
Bihar, AIR 1955 SC 661; Central Board of Dawoodi
Bohra vs State of Maharashtra (2005), 2 SCC 673.
Law Commission of India, “Need for Division of
the Supreme Court into a Constitution Bench at
Delhi and Cassation Benches in Four Regions at
Delhi, Chennai/Hyderabad, Kolkata and Mumbai”,
Report No 229, August 2009.
Dhavan, Rajeev (1986): Litigation Explosion in India
(Bombay: N M Tripathi).
Gadbois, George H Jr (1970): “Indian Judicial Behaviour”, Economic & Political Weekly, 3(5): 149.
Venkatesan, J (2010): “Supreme Court Again Says ‘No’
to Regional Benches” , The Hindu, 21 February.
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