a broader study could be made to look at how many times was a constitutional bench deciding cases which have involved expansion of the ambit of Art. 21, which in all fairness has been stretched to cover almost everything under the sun today and calls for a review of the same practice in my opinion at least
@thenumber10: I agree with you that an deeper empirical study should be made. Article 21 is not only a classical example of unnecessary interpretative expansionism, but has also resulted in dilution of the actual right protected since most of the "in rem" judgements passed under that article are not practically enforceable and have not been enforced.
@dilip Rao: A larger bench forces the judges to compromise and reach a point of common agreement. So the damage done by smaller benches will endure till it finally comes before a larger bench. It is better to have a constitutional bench give an authoritative pronouncement which will last for some time. Opinions amongst judges will always vary, but certainty should not be sacrificed at the altar of doing individual justice. In other words, "Justice should not vary with the Lord Chancellor's foot" especially in a court of final resort.
I don't think smaller benches can be realistically precluded from engaging in constitutional interpretation. When a matter is instituted in the Supreme Court, it is first heard by a division bench (two judges)and is usually referred to a larger bench only after the lawyers' have shown that it involves a 'subtantial question of law' or requires a resolution of conflicting precedents. In some cases, the judges themselves recognise the need to refer the case to a larger bench. Such a determination is always of an ex ante variety. At the time of referral to a larger bench (3 or 5) one cannot reasonably predict whether the judges will ultimately offer a novel interpretation of constitutional provisions. Whether or not a particular decision significantly changes the understanding and scope of constitutional provisions is an aspect that can only be examined in an ex post fashion. Furthermore, when a constitution bench has recognised a broad principle (e.g. protection of privacy or dignity) i really don't see why new cases seeking to expand the boundaries of those protections should be necessarily referred to 5 judge benches. One of the precepts of common law adjudication (as well as the Dworkinian formulation of 'law as integrity')is that judges search for the best possible answer while still trying to root it in precedent. It doesn't mean that they are free to disregard precedent altogether by exercising unguided discretion. As for the connection between bench-strength and the quality of deliberation (i.e. the theory that more judges entails more compromises and deeper analysis) i am not sure if that holds true with the present practice of one member writing the leading opinion and then circulating it among the others on the bench.
I absolutely agree. In any part of the world you can never have legal cases or situations when you can apply a definite formula. In other words, there are no straight-jacket solutions. Hence, flexibility of law is indispensable.
Join the discussion