The Desirability Of A Permanent Constitution Bench In The Supreme Court

^[2], and what must be the ideal composition of such a bench.

A constitution bench under Art 145 (3) decides cases involving substantial questions of law of interpretation of the Constitution. A constitution bench has a minimum of 5 though such strength may be higher.

In the early days of the Supreme Court, all the judges usually heard cases together. The practice of two judges sitting as a bench existed but was a rarity. P. N. Sapru was of the opinion that two judges were a "weak bench" while K.K. Basu said that benches should have "at least three judges as a rule" during the Rajya Sabha Debate of Supreme Court (number of judges) Bill, 1956.

Over time, as the number of cases increased, the size of the benches deciding the matters reduced and a 2 or 3 judge bench became routine. Litigation explosion in the decades that followed, with increased judicial activism in the post-emergency era, created the need for smaller benches, making division benches the norm, and constitution benches the exception. Despite the increase in the number of judges from time to time, the increase in pending backlog of cases has increased disproportionately.

Such an increase is seen because the Supreme Court, in order to promote wide access to justice and the court system to the people, has been increasingly admitting matters of regular nature, putting on the back-burner important cases requiring larger benches of 5 or more judges in order to speedily dispose cases and deliver justice causing much delay in hearing matters requiring larger benches. The long-term cost of this approach are very high as backlog of constitutional matters continue to build up to enormous proportions not only in the supreme court but in the high courts as well.

In a 2013 article^[3] Nick Robinson finds that tax, arbitration and company law matters have a higher acceptance rate in the Supreme Court than cases regarding question relating to the interpretation of the constitution. Also, larger benches are more backlogged than smaller ones. This creates a flood-situation where the Supreme Court can not find enough resources to dedicate to constitutional matters and other important fundamental issues under public interest litigations and writ petitions, which remain colossally backlogged.

^[4], Minerva Mills v. Union of India^[5], ADM Jabalpur vs Shivkant Shukla^[6], etc.

Despite their role in advancing the constitutional jurisprudence, there has been a decline in the number of constitution benches over time. In the 1960s, the Supreme court had an average of 100 constitutional benches per year. This number steeply declined to about 10 per year in the 2000s. Some scholars are of the opinion that despite disposing more than 5000 cases a year, the Supreme Court of India produces only a marginal degree of constitutional jurisprudence as compared to the United States Supreme court which decided just over 70 cases in 2009, but such cases mostly involved questions of constitutional importance.

But why is it desirable to have a permanent constitution bench at the Supreme Court? This question can be answered in two ways.

Firstly, Indian reformers and activists have often highlighted the need for a permanent constitutional bench in order to allow the court to decide on larger issues of public importance unhindered by regular matters involving mostly individual interest which take up most of the time of the smaller benches.^[7] India can follow the example of the US Supreme Court in taking such measures

The 229^th law commission report (2009)^[8] recommended setting up a permanent constitution bench in the Supreme Court in Delhi to deal with constitutional issues and similar important legal issues and the formation of 4 cassation benches in regional courts to deal with the appellate matters from various high courts under each region in order to expedite the process of adjudication. The recommendations made in the report have not been formally adopted, but have nonetheless been widely acknowledged as a possible solution to the issue of backlogs and burden on the apex court. Such a move will be welcome. The recent trend is that a majority of the cases admitted for hearing by the Supreme Court arise out of special leave petitions and regular matters which more often than not do not involve any substantial questions of law relating to the constitution but are merely appeals of civil or criminal nature, the maximum relating to taxation and family issues, as mentioned previously. This has resulted in a slump in the development of Constitutional Jurisprudence in the Supreme court. In 1988, in the 125^th law commission report, "radical measures" were recommended in order to tackle the problem of backlogs in the face of "litigation explosion"^[9]. This report of more than 3 decades ago, declared that "Any further deterioration might need a surgical operation". A specialised bench dealing specifically with matters described by Art 145(3) will certainly improve the scenario. It will greatly help reduce the backlog created due to the preoccupation of benches with regular matters which are admitted as a matter of course.

Secondly, while looking into the need for a permanent constitution bench, one must also acknowledge issues other than backlogs and pendency, such as transparency. The chief justice currently has unchecked power as to the constitution of benches, including constitution benches. He decides when such matters will be heard, and also which judges will form such a bench. In a fact-finding paper by Nick Robinson, it was concluded, relying on the empirical data, that out of more than 1500 cases decided by constitution benches, the CJI has been in dissent only 10 times since the inception of the Supreme Court.^[10]

The Chief Justice also has the unbridled power to decide whether a matter referred to him by a 2 or 3-judge bench merits hearing by a constitution bench wherein his subjectivity comes into play and matters of great importance might not see the opportunity to be further discussed and decided.

Then there is the problem of arbitrary categorisation of matters as to whether or not they involve important questions of law. In the absence of any standard to define what constitutes a substantial question of law as to the interpretation of the Constitution", most matters are not referred to a larger bench, simply because it is not clear whether the matter falls into this category at all. Such decisions are highly dependent on the way judges perceive the facts of each case. This issue has not been resolved, but there is hope of a solution in the near future if a permanent constitution bench is set up. It is this very bench that can decide on the issue and give a standard definition as to what category of cases shall be heard and decided by a constitution bench.

A certain degree of transparency can be ensured if a permanent constitution bench is formed by a proper procedure, perhaps on a rotation basis to ensure participation all the judges of the supreme court, rather than by allowing the Chief Justice, here too, to decide the composition of the bench. Such a method of selection of judges on a rotation basis will also remove the perceived ideological block which the people see as a hinderance to delivery of justice due to political or subjective inclination of individual judges.

^[11]. Hopefully, the number will go up with the formation of a permanent constitution bench dedicated to deciding "any case involving a substantial question of law as to the interpretation of this Constitution"^[12] since it will not be concerned with cases falling outside the realm of questions of constitutional importance defined by Article 145(3) of the Indian Constitution.