Power, politics and constitutional adjudication

The Supreme Court of India is often described as the most powerful court in the world. This power, in part, can be sourced from Article 145(3) of the Constitution, which prescribes that a bench of five or more judges decide matters that involve a substantial question of law as to the interpretation of the Constitution.

At its inception in 1950, all eight judges of the Supreme Court sat together for all matters. This continued till 1956, after which the strength of the Supreme Court gradually started increasing, standing now at 34 since 2019. With the increase in both the Court’s workload and strength, the practice of all judges sitting together was not to last, with division benches of two or three judges becoming commonplace.

Besides settling questions of constitutional interpretation, Constitution Benches also give finality to issues that have been variously decided by different division benches.

While dealing strictly with interpretation of the constitutional text, Constitution Benches inevitably end up critically impacting governance and politics.

A standout instance of that has been the nine-judge bench decision in SR Bommai v. Union of India (1994) on the scope and limitations of Article 356 (on imposition of emergency in states).

A milestone for federalism in India, SR Bommai could arrest, in large part, the practice of whimsical imposition of Presidential proclamations of Emergency in states by the Union. SR Bommai may not have entirely eliminated the possibility of arbitrary use of Article 356, but it has tangibly reduced the number of such occurrences.

Another instance where a Constitution Bench decision continues to impact politics is the case of Kuldip Nayar v. Union of India (2006), where a legislative amendment that removed the requirement of domicile in the state concerned for getting elected to the Rajya Sabha was challenged for violating the principle of federalism.

Construing the Rajya Sabha to be a revising chamber over the Lok Sabha, and not particularly a champion of local, state-level interests, a five-judge bench unanimously upheld the legislative amendment. In so doing, the judgment carried significant implications for the composition of the Rajya Sabha, and by necessary implication, the Parliament.

With the deletion of the domiciliary requirement from the statute validated, political parties have successfully maneuvered which candidate can be sent to Parliament via which House.

Constitution Bench decisions also have (and will have) significant social implications. In August 2024, a seven-judge bench in Davinder Singh v. State of Punjab upheld the constitutional validity of sub-classification in the Scheduled Caste (SCs) and Scheduled Tribe (ST) categories, for reservations in education and public employment.

The majority held that SCs are not a homogenous unit unto themselves, and that states are free to identify the different degrees of backwardness of specific groups and provide special provisions (such as reservation) to relatively more backward SCs.

While greenlighting sub-classification, the majority opinion expects states to be able to demonstrate, backed by empirical evidence, a sub-group’s need for wider protection, and a reasonable rationale for classifying a sub-group. While the Supreme Court has clarified that sub-classification should not be furthering any political expediency, the obvious nexus between reservation, caste politics and electoral outcomes cannot be wished away.

The judgment also impacts our future understanding of the purpose of reservations and distribution of quotas.

These lasting impacts on governance and politics should come as no surprise – after all, interpreting the Constitution is inevitably political.

Several Constitution Bench decisions have critically shaped Indian democracy. The largest-ever Constitution Bench in Kesavananda Bharati (1973) established the basic structure doctrine and circumscribed the scope of Parliament’s amending power. Maneka Gandhi (1978) adopted the “due process” standard to ensure that the procedure adopted in depriving an individual of their personal liberty must be just, fair and reasonable. In Justice KS Puttaswamy (2017), the Court affirmed of right to privacy as a fundamental right under the Constitution.

Each of these decisions, like many others, demonstrate the overwhelming presence of the Court in key governance issues which encompass the relationship between the individual and the state.

Timely hearings and utmost quality of adjudication by Constitution Benches are critical to the development of law. Key questions of governance hinging in some way on determination by Constitution Benches must not be left lingering for prolonged durations.

Delays breed speculation as to the factors that weigh on the judiciary while constituting and scheduling hearings before a particular Constitution Bench. Though now decided, the delay which preceded the hearing of key constitutional issues, such as the validity of the abrogation of Article 370, impacted public faith in the judicial process. With the passage of time, the eventual decision appeared to be a mere academic exercise.

Given the overburdened docket of the Supreme Court, perhaps a dedicated Constitution Bench is the potential way forward. To exclusively decide issues entailing interpretation of the Constitution or reconcile diverging division bench decisions, this dedicated bench could devote the time, energy and academic rigour such cases deserve.

This might simultaneously merit considering the possibility of increasing the overall strength of the Court altogether, to ensure that disposal of other (non-Constitution Bench) matters does not get severely impacted.

Ritwika Sharma is an Assistant Professor at the Jindal Global Law School, OP Jindal Global University, Sonipat, Haryana.

This article is the sixth in a series by the JALDI (Justice, Access, and Lowering Delays in India) initiative at the Vidhi Centre for Legal Policy, analyzing the significance and functioning of Constitution Benches at the Supreme Court.