Last week’s order referring the matter to five judges by Chief Justice Sathasivam is incredibly short. In fact, it provides no reasoning nor any history of the present petition (which I understand was filed sometime last year).
Although last week’s order gives no reasoning as best as I can tell it basically represents the Supreme Court admitting that it messed up. What’s so troubling is that all of this was an entirely foreseeable outcome of having the original case heard by just three judges. This issue of judge strength was raised during the initial challenge to the Right to Education Act, but the judges sitting on the matter then decided to continue to hear it anyway (albeit with the consent of the present parties). For some time now there have been concerns raised about both the constitutionality and prudence of the Supreme Court hearing major constitutional matters with less than five judges. A matter like the Right to Education Act case deserved to have at least five judges thinking through the different legal and policy implications of their judgement (not to mention the Indian Constitution arguably demanding at least five judges). It is admirable that the Supreme Court has now decided this matter requires at least five judges, but the damage has already been done. The Indian public – and Indian schoolchildren – once again face the situation in which a core tenant of the education policy of the entire country has been thrown into a state of uncertainty.
Perhaps even more troubling is that so many major constitutional cases of the last twenty years were heard with less than five judges. Should Indian lawyers and the Indian public now doubt their validity? Could they be open to challenge? I don’t think it makes sense to point fingers, a set of structural and institutional culture pressures have brought the Court to where it now finds itself, but I do think the Court needs to explicitly take on this issue and make clear under what situations constitution benches are required and how this policy will apply both retroactively and prospectively. Currently there seems to be too much uncertainty over judge strength and this leads to uncertainty in the Court’s jurisprudence and as a consequence unneeded uncertainty in the interpretation and functioning of India’s laws and policies.