JUDICIAL MAJORITARIANISM
1. Context
As the recent majority judgment of the Supreme Court on demonetization comes under criticism, the minority judgment by J. Nagarathna is being hailed for its challenge to the RBI’s institutional acquiescence to the Central government. This questions our blind acceptance of numerical majorities in judicial decision-making.
2. About Judicial Majoritarianism
- As opposed to standard matters heard by Division Benches consisting of two judges, numerical majorities are of particular importance to cases that involve a substantial interpretation of constitutional provisions.
- In such cases, Constitutional Benches, consisting of five or more judges, are set up in consonance with Article 145 (3) of the Constitution. Such Benches usually consist of five, seven, nine, 11, or even 13 judges.
- This is done to facilitate decision-making by ensuring numerical majorities in judicial outcomes. The requirement for a majority consensus "flows from Article 145(5) of the Constitution which states that no judgment in such cases can be delivered except with the concurrence of a majority of the judges but that judges are free to deliver dissenting judgments or opinions.
3. Judicial Independence
All judges on a particular Bench give their rulings on the same set of arguments and written submissions. In light of the same, any differences in judicial decisions can be attributed to a difference in either the methodology adopted and the logic applied by the judges, or, as prospered by legal realists such as Jerome Frank, upon their own ‘judicial hunches’ which may be an outcome of their subjective experiences, outlook, and biases. In such circumstances, the majority may fall into either methodological fallacies and errors or be limited by their ‘judicial hunch’ respectively.
4. Meritious Dissents
- Our Constitutional history is replete with such meritorious dissents. The dissenting opinion of Justice H.R. Khanna in A.D.M. Jabalpur v. Shivkant Shukla (1976) upholding the right to life and personal liberty even during situations of constitutional exceptionalism is a prime example.
- Another example is the dissenting opinion of Justice Subba Rao in the Kharak Singh v. State of U.P. (1962) case upholding the right to privacy which received the judicial stamp of approval in the K.S. Puttaswamy v. UOI (2017) case.
- Moreover, the rate of dissent itself is subject to influences. To exemplify, Yogesh Pratap Singh, Afroz Alam, and, Akash Chandra Jauhari (2016) found that the rate of judicial dissent at the height of the Emergency in 1976 was a mere 1.27% as opposed to 10.52% in 1980.
- The study also found that the rate of dissent where the Chief Justice was a part of the Bench was lower than in those cases where the Chief Justice was not on the Bench. Such situations call into question the e$ciency and desirability of head-counting procedures for a judicial determination on questions of national and constitutional importance.
5. Gaps in Understanding
The absence of a critical discourse on judicial majoritarianism represents one of the most fundamental gaps in our knowledge regarding the functioning of our Supreme Court.
As pending Constitutional Bench matters are listed for hearing, we must respect the arguments of judicial majoritarianism based on which these cases are to be decided.
For Mains
| For Mains: What is Judicial Majoritarianism? Discuss the importance of Dissent in a democracy. |
Source: The Hindu
