Bigger bench, please

Why we should worry when constitutional cases are heard by two or three judges

For some time now, there has been a crisis building in the Supreme Court on how it hears its most important cases. It is the sort of crisis that has largely remained hidden from public view, not because it is a secret but because its rather serious implications can be easily missed. And yet, its remedy will most likely be found in the simple act of public scrutiny.

The Constitution, Article 145(3), to be precise, says that any "substantial question of law" relating to the interpretation of the Constitution must be heard by benches of at least five judges (often referred to as constitution benches). This seems straightforward and logical enough. Although the Supreme Court's current 27 judges generally decide the thousands of relatively mundane cases that come through its doors each year in benches of two or three, the Constitution is explicit that for important constitutional matters larger benches are needed. Or, to put it more colloquially, bigger cases require bigger benches.

However, if we look at some of the most important constitutional cases of the last term, we find smaller benches doing the work. The Right to Education Act will affect almost every schoolchild in the country. Yet, the case was decided by three judges. The Naz Foundation case on the constitutionality of Article 377 of the Indian Penal Code was heard by just two judges. The judgment in that case, which is due to be delivered soon, will shape the rights of sexual minorities, helping define the content of the right to equality.

And this recent trend of smaller benches hearing major constitutional cases is not just limited to the last term. During the previous term, for instance, in the Salwa Judum case, two judges ruled that it was unconstitutional for the government to arm militias to fight Maoists. In 2010, three judges ruled it unconstitutional for the police to involuntarily subject those in police custody to narco-analysis. It is hard to argue these cases involved only trivial or insubstantial questions of constitutional law.

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