In a previous post I discussed some research I had done where I found in the last ten years the Chief Justice had never been in dissent in a five judge bench or above. I suggested that this may be because since the CJI has power in selecting who sits on these larger benches he may be creating panels that are more likely to agree with him. I also suggested some potential ways of assigning judges to panels which would not give the CJI as much of a controlling hand or perceived controlling hand. This sparked a lively discussion from which I learned a great deal.

I recently got a chance to keep going back through five judge benches above on which the CJI has sat (again through Manupatra searches). I found no dissents (although a few concurrences) until Chief Justice Sharma’s dissent in R.C. Poudyal v. Union of India in 1993, about 15 years ago.

In this case the reservation in the Sikkim legislative assembly for Sikkimese of “Bhutia-Lepcha” origin and for “Sangha” Buddhist Lamaic monasteries was challenged (the Sangha reservation also used a separate electoral roll). The challengers argued this reservation violated the Constitution’s essentially republican and secular nature and the concept of “one person-one vote.” The majority of three judges found that these reservations did not violate the Constitution or its fundamental features. Chief Justice Sharma and Justice Agrawal had separate dissents. Chief Justice Sharma argued that the Constitution did not allow for religious reservations or separate electoral rolls so these reservations were unconstitutional.

The opinion was handed down the day before Chief Justice Sharma was set to retire. With such a small data set it’s difficult to draw too many conclusions from this. However, it reminds one of Aharon Barack’s more recent dissent in Adalah v. Ministry of Interior in 2006. The Israeli Supreme Court also uses smaller panels like the Indian Court. As President of the Israeli Supreme Court for almost a decade Barack had a controlling hand in setting up which judges sat on which panels. He rarely found himself in dissent (never as far as I know, but I haven’t looked into this enough to make that broad a claim) until Adalah which was decided shortly before he was set to retire (and also was a larger 11 judge bench, which arguably is much more difficult for an executive judge to control). This may point to an executive judge’s power not only coming from his or her ability to create panels that have judges that are more likely to favour the executive judge’s opinion, but also out of the threat of potential sanctioning through ongoing interactions (i.e. not being placed on important panels in the future). This hypothesis though is difficult to show with such a small data set. Also, as I went through the Indian judgments over the last 15 years I found that although often certain judges would be in a minority dissent they would then be on a later larger bench with the Chief Justice again, so it does not appear they were being punished for not agreeing in an earlier decision. Again, you would need more detailed analysis to come out with a conclusion either way.

One of the comments on my last post on this topic made the insightful comment that we would also need to look at this phenomenon from the perspective of CJI’s dissent records before they were CJI – i.e. if a CJI was often in dissent before becoming CJI and then never or rarely was after this would add an additional way of showing that he may be selecting judges that are more likely to favor his outcome preferences.

One final note, although I went through the Manupatra judgments with a fair amount of care Manupatra makes mistakes and I certainly make mistakes so if anyone knows of any dissent by a CJI in a five judge bench or above (or even a three judge bench) since Poudyal please let me know.