In today’s Indian Express I have this op-ed on how two and three judge benches of the Supreme Court are increasingly deciding cases involving substantial questions of constitutional law (think Naz, the RTE case, Narco-analysis, Salwa Judum).  The constitution mandates such cases must be decided by five judges.  The issue of bench strength for important constitutional cases has been debated on this blog before (see here and here).  A number of former students and myself have also studied this question empirically in a paper that in part documents the severe decline in such larger benches since the 1960’s.

I outline a few reasons this trend should concern us in the piece including: (1) smaller benches are more likely to express minority or outlier positions that may not be as well thought through as if a larger bench heard the case (2) the potential for smaller benches to reshape law decided by larger benches undermining the Court’s rules on precedent (3) fidelity to the rule of law (i.e. the Constitution mandates it).

One reason that I didn’t discuss as explicitly is that smaller benches empower the Chief Justice even more than he already is.  The Chief Justice picks which judges will hear what important matters.  The smaller the bench the more consequential this power is.  This is not a new problem.  Chief Justice Subha Rao when he retired claimed that the best way to get around this challenge was to have the whole Court sit together (eleven judges at the time) so that “people can no longer have any apprehension, whether justified or not, that the court is packed.”  It’s unrealistic for the entire court to sit together today, but a bench of five is still better than two or three to get around this perceived problem of “court packing.”

Surprisingly, given the centrality of this issue to how the Indian Supreme Court works I have been unable to find any case that outlines principles or a test for determining when a case does involve a substantial question of constitutional law (and so mandates at least five judges).  The process seems currently to be at the discretion of the Chief Justice (smaller benches can refer cases to the Chief Justice for larger benches, but it is the Chief Justice that ultimately decides).

The sooner this issue gets resolved the better.  If I was on the losing side of any of these two or three judge bench decisions that arguably should have been five I would be arguing that the case needs to be reheard as a larger bench.  If the Court does eventually lay down guidelines for when a larger bench is required it is unclear what will happen to the precedent of these cases that seemingly should have been heard by a bigger bench.  Is the RTE decision thrown out because it should have been heard by five judges or grandfathered in?  How about narco-analysis?  Not having this issue clear creates too much potential uncertainty in the law.