This may not be the most topical issue to be blogging about presently, especially in the light of the general tenor of the posts before this, but I wanted to consider, for a moment, the policy of referring cases that needed to be reconsidered to a ‘larger bench’.

To put things into perspective for the uninitiated, the Chief Justices of our courts, and most visibly the Chief Justice of India, often refer cases to a ‘larger bench’ in exercise of their administrative powers. This is perhaps done under a belief that a bench of, say, eleven judges can more legitimately decide whether a previous bench of, say, nine judges were incorrect in their decision – but is this practice technically indispensable?

Unlike the constitutional court in Germany (which convenes in two panels or ‘senates’ of 8 justices each) and the United States Supreme Court (which convenes en banc, i.e. as a plenary body of nine justices), the Supreme Court of India convenes in several ‘benches’ usually of two judges. However, in certain circumstances, the Chief Justice of the Supreme Court constitutes a bench of three, five, seven, nine, eleven and in rare cases of thirteen judges to decide a case.

What are the benefits of referring cases to a ‘larger bench’? First, when two judges can’t agree upon the outcome of a case, they can resolve the deadlock by referring the case to a larger bench (usually of three judges). [Indian judicial benches do not usually convene in even numbers except in two judge benches, or in exceptionally rare circumstances where one judge in an odd numbered bench has to recuse himself from a case that otherwise has to be urgently decided.

Second, the Supreme Court of India, unlike various constitutional courts worldwide, has ‘generalist’ powers of adjudication. In other words, while the constitutional court of Germany, for example, can only decide cases involving the German constitution (‘basic law’), and the United States Supreme Court can only decide cases involving either constitutional issues or the interpretation of ordinary federal (but not state) statutes, the Supreme Court of India can (i) interpret both state and federal laws; and (ii) decide both ordinary and constitutional cases. As a result, a host of proceedings in the Indian Supreme Court are what commentators would term ‘routine’ cases. It therefore makes sense to ensure that the judges deciding the ‘routine’ cases are able to turnover cases quickly, and that they do not spend their time hearing ‘important’ constitutional issues which are likely to consume time. Accordingly, a separate bench which exclusively dedicates its time to ‘important’ cases can create a healthy division of labor.

Third, the referral of ‘important’ cases to a larger bench also follows the two-heads-are-better-than-one rationale: the principle being that if it’s an ‘important’ case, then more judges should decide its outcome.

But in order to overrule a prior case, is it absolutely essential that the subsequent case be decided by a bench of greater strength than that in the prior case?

Assume for a moment that a bench of five judges unanimously (5-0) decides an issue in terms of Holding X. Now assume that a larger bench, say of seven judges, is constituted to consider the question of whether Holding X should be overruled. Ironically, if the seven judges decide by a fractured majority, i.e. 4-3, that Holding X should be overruled, then even though more judges had agreed in the previous case in favor of Holding X, the decision can still be overruled if four out of seven judges think so. Similarly, a 2-1 majority can overrule a unanimous two judge opinion, a 5-4 majority can overrule a unanimous seven judge opinion, and a 6-5 majority can overrule a unanimous 9 judge opinion, apparently on the strength of the fact that more judges had participated in the overruling case. Therefore, the constitution of a larger bench in such ‘overruling’ cases seems to make little sense unless the rule requires a litigant to procure a larger majority than the previous case to overrule the previous decision.

However, this practice is often said to be rooted in the need for certainty. It is often suggested that the reason a bench of larger strength should be constituted to decide such cases is that it should be harder to overrule previous cases. Stare decisis dictates that prior decisions should not be overruled frivolously. However, the experience of nations has shown us that the mere fact that the decision of a certain number of judges can be overruled by the same number of judges does not make it any easier to deviate from precedent. If anything, it would require justices to understand that they do not have the power to ride roughshod over prior cases, but that they must be more circumspect while overruling a prior case, and that they must at times defer to the wisdom of the prior majority.

Am I suggesting that a bench of three Supreme Court justices should be able to overrule a previous decision of five justices? Not necessarily – but I believe that the bench strength should not really matter. What I do believe is that it is superfluous to necessarily require the constitution of a larger bench in order to overrule a prior case (a bench of the same strength could as easily do the job).

Further, the general experience has been that the larger the bench, the more intricate the law – volumes have been written on Kesavananda Bharati, and TMA Pai had to be interpreted in Islamic Academy and PA Inamdar. Of course, we could also solve the problem of intricate law by requiring our courts to speak in one voice, much in the same way that it’s said to be done in France, but not permitting justices to write concurring or dissenting opinions seems to hit hard against the essence of our legal system. Smaller benches deciding ‘important’ cases may be a less drastic way to achieve the same result.

Remember that in 1964 the Allahabad High Court in Keshav Singh’s case convened and decided an issue en banc – a decision by all 28 judges! If, god forbid, the Supreme Court of India or another court decides a case en banc: will we have to increase the strength of a court to determine if a case should be overruled? Remember also that Justice Brennan had once famously said, “the only number that matters around here is 5” i.e. a majority.