In search of judicial dialogue: Vanishing deliberation in Constitution Bench judgments

In November 2024, Justice DY Chandrachud penned one of his last judgments as Chief Justice of India for the majority in the seven-judge Constitution Bench in Aligarh Muslim University v. Naresh Agarwal and Ors. At first glance, the AMU case seems to be an instance of Constitution Benches fulfilling their purpose - a large number of judges debating and delivering their verdicts..However, the dissenting opinion of Justice Dipankar Datta highlighted the absence of consultative decision-making among judges, which would have been instrumental in shaping judicial opinions. He emphasised the lack of a forum for ensuring a true “give and take of ideas in true democratic spirit to build up a consensus.”.The purpose of Constitution Benches.Under Article 145(3) of the Constitution, a Bench of at least five judges is required to decide upon a ‘substantial question of law’. A study by Nick Robinson and Jyotika Randhawa notes that nearly 134 Constitution Benches were set up per year in 1960-64. However, in the last decade, the number of these Benches has diminished to less than 10 a year.Simultaneously, larger bench compositions have become rarer. As of January 2025, the vast majority of Constitution Benches (12 out of 19) are five-judge Benches. This is perhaps unsurprising, as an upper limit on bench composition was not really contemplated by the Constituent Assembly; Dr. BR Ambedkar considered a ‘minimum’ five-judge Bench necessary for discussing and interpreting constitutional provisions. However, during the Parliamentary debates on the 1956 Supreme Court (Number of Judges) Act, which established an upper limit for the total strength of the Court, smaller benches were considered ‘weaker’ as the need had begun to be felt for authoritative pronouncements..For a larger bench to be fully effective in ensuring finality, adequate intra-bench dialogue is crucial to ensure logically-reasoned conclusions. Justice PN Bhagwati underlined this in State of Gujarat v. Gordhandas Keshavji Gandhi (1961), noting that a larger bench’s authority over smaller benches derives from the fact that its verdict is not merely a collection of the individual opinions of judges, but the result of an intensive process of “joint deliberations and discussions”..Lack of ‘free and frank' discussions.Information regarding the frequency (or the lack thereof) of such discussions among judges is often not publicly available. Notably, however, the absence of a forum for discussion among the judges was put on record by Justice MM Punchhi in the Second Judges’ case (1993). As part of a nine-judge Bench, Justice Punchhi recorded his astonishment at the lack of “meaningful meetings[...] striving for a unanimous decision”.This phenomenon is particularly astonishing in light of the fact that a majority of Constitution Bench judgments are authored by individual judges, often the more senior of the judges on the Bench, on behalf of themselves and their brethren. One presumes that in these instances, the co-signing judges have undergone a process of thorough internal deliberation and collaboration, even if this process is not always extended to meetings of the entire Bench.However, as Justice Datta points out in the AMU case, the Supreme Court’s immense workload means that judges have limited time to conduct such meetings and engage in internal debates, on top of their duties in court and time spent on research and the actual writing of judgments. This bodes ill for the ability to ensure an honest exchange of opinions which could enrich the decision-making process..Jurisprudential need for deliberation.Consultation among judges and engagement with each others’ findings is crucial for enriching the resulting interpretations and positions of law. It is not unusual to find judges at the US Supreme Court dissecting each other’s opinions in their judgments. For example, Justices Ginsburg and Sotomayor’s dissent in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) closely examines the reasoning adopted in the majority and concurring judgments to justify their opposing conclusions.This practice is much rarer among Indian judges. Although cases such as Kesavananda Bharati (1973) or the Justice KS Puttaswamy judgement (2017) have resulted in volumes upon volumes of concurring and dissenting opinions, these do not include significant direct engagement with fellow judges. Concurring opinions, in particular, often merely restate the positions taken and references cited in the majority.This leads to confusion: for example, Justice Rohinton Nariman in the Sabarimala case (2018) was the sole judge to take note of an earlier concurring opinion which discussed the extent to which social welfare and reform could affect “essential religious practice”. However, he also noted that a lone concurring opinion, which had not been addressed by fellow judges, could not be conclusive. The jurisprudence in this area continues to remain murky..Conclusion.The value of constituting larger benches lies in the fact that greater deliberation and discussion will lead to greater certainty and consistency in jurisprudence, and allow for a more diverse and enriched process of legal reasoning. Judges must actively engage in constructive judicial dialogue to ensure that these Benches truly fulfil their purpose..Priyamvadha Shivaji is a Research Fellow at Vidhi Centre for Legal Policy.[This article is the fourth in a series by the JALDI (Justice, Access, and Lowering Delays in India) initiative at the Vidhi Centre for Legal Policy, analysing the significance and functioning of Constitution Benches at the Supreme Court.]