<p style="text-align: center;"><strong>INTERPRETATION OF THE CONSTITUTION AND THE CONSTITUTIONAL BENCH: ISSUES AND CHALLENGES</strong></p>
Written by Anamika Dass
“Constitutional bench verdicts in the Supreme Court are now an endangered species, and the court has embraced the role of an appellate adjudicator more than its traditional and primary role of being a constitutional arbiter or as perennial source of authoritative law of comparatively greater longevity,” said a senior advocate Govind Goel.
Chief Justice of India T.S. Thakur’s highlighted the ‘burden’ being placed on the Indian judiciary by way of judicial delays and backlogs in India.
In May 2016, CJI, Thakur quantified this inadequacy with a claim that India needs 70,000 judges to clear the pending cases. The basis of his speech indicates the benchmark of having 50 judges per million population. The origin of the parameter of “50 judges per million” lies in the 120th report of the Law Commission of India.
With India’s population being pegged at 1.34 billion as of February 2017 and applying this benchmark, India should have approximately 65,000 judges is going to be herculean, if not impossible, the task in next few decades.
The current judicial strength stands at 28, short of three judges.
What was the intention of the framers of the constitution behind Article 145(3) and the creation of the constitution bench? In this paper, I would discuss the change in the trend that has been observed since Independence in the creation of the constitution benches and disposing of the cases and what can be the way ahead to deal with the pendency of the cases.
The Idea: Constituent Assembly Debate:
Volume VIII; Monday, the 6th June 1949
The need for five or more judges sitting in judgment over questions of constitutional importance traces its history from the deliberations of the Drafting Committee in October1948 where it was recommended that the proviso to Article 121(2) (now Article 145(3)) read that “it shall be the duty of every judge to sit for the said purposes”, the purpose herein being “deciding any case involving a substantial question of law as to the interpretation of this Constitution.”
Shri T. T. Krishnamachari was putting his argument in the Parliament before Dr. B.R Ambedkar that “That for the proviso to clause (2) of Article 121, the following be substituted: ‘Provided that it shall be the duty of every judge to sit for the said purpose unless owing to illness he is unable to do so, or owing to personal interest or other sufficient cause he considers that he ought not to do so.
While, Shri Alladi Krishnaswami Ayyar said “That concerning amendment No. 1964 of the List of Amendments, for clause (2) of Article 121, the following clause be substituted
2) Subject to the provisions of the next succeeding clause, rules made under this article may fix the minimum number of judges who are to sit for any purpose, and may provide for the powers of only Judges and Division Courts.
2(a)The minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution, or for the purpose of hearing any reference under Article 119(before amendment) of this Constitution shall be five:
Provided that where the Court hearing an appeal under Article 111(before amendment) of this Constitution consists of less than five judges and in the course of the hearing of the appeal the court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal such court shall refer the question to a court constituted under this clause for opinion and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.'”
Further, he said that there is no need to comment on the subclause (2), and (2a) which speak for themselves. The only clause which requires some elucidation is the proviso.
“The main idea of the proviso is that judicial time need not be unnecessarily wasted.”
While this suggestion was not adopted in its entirety, we do have Article 145(3) in place which mandates that “the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution shall be five.”
There are many situations where the constitutional question has been raised along with the other questions, conclusion that the constitutional point that is raised is not necessary for the disposal of the appeal, and that the case can be easily disposed of on the other aspect that has been raised. Under those circumstances, it will be the sheer waste of judicial time that a Bench of five Judges should hear this case if otherwise, a Bench of three Judges can under the rules of the Court dispose of the appeal.
- The important question that comes to mind is what substantial question of law is? What are the parameters that define the term Substantial?
Some of the possible interpretations could be:
1) Any case involving the interpretation of the Constitution. After all, it’s probably a “substantial” question for the parties involved, even if to no one else.
(2) Any case that turns on the interpretation of the Constitution (i.e. the interpretation of the Constitution is of substantial, not secondary, importance to the case).
(3) A case that is of general importance to the country (i.e. a case of “substantial” importance)
(4) A new or novel question of the interpretation of the Constitution (i.e. a question that has not already been decided by five judges which a smaller bench could then use as precedent )
- Does any other provision of the Constitution tell us anything about how to interpret 145(3)?
Article 133, discussing the Court’s appellate jurisdiction for certified civil matters, the Constitution states that one of the criteria for a case to be appealed is “that the case involves a substantial question of law of general importance.” This provision seems to indicate that not all substantial questions of law are of general importance. So we have a good first clue about what the intent of the framers might have been. “Substantial question” seems to mean something different than “general importance”.
- The Interpretation of the Constitution should involve:
(1) a plain meaning reading of the Constitution;
(2) an attempt to harmonize the meaning of different sections of the Constitution;
(3) an examination of the intent of the framers;
(4) an examination of relevant jurisprudence; and
(5) an examination of what is good policy.
The Practice: last six decades
These Constitution Benches were known to give India’s best known and the important judgments like A.K. Gopalan vs. State of Madras (Right to life), Keshavananda Bharati vs. State of Kerala (Basic structure doctrine) and Ashok Kumar Thakur vs. UOI (Reservations)
Despite their Central role in the Constitutional Jurisprudence yet their number has been declined dramatically.
During 1960’s court averaged about 100 five- judge bench or more which surprisingly came down to about nine in a year during 2000’s that means that the Supreme Court produces less jurisprudence involving the substantial question of law during this decade.
Other than this decline in the number of the benches there were other changes also that were occurring in the bench which can be traced from the shift in the pattern over the years. It is evident that ever since Independence the Constitution Benches has become less frequent, their judgments became lengthier and significantly delayed.
Especially after the emergency, there was more access to the courts which resulted in the increase in the pendency of the cases. There were on average 71 five- judge bench or larger bench per year before the emergency which reduced to 11 per year after that.
There was a decline despite the fact that the court increased its number of judges in 1956 from 8 to 11 and then 14 in 1960, 18 in 1977, 26 in 1986, 31 in 2008, however, it is 23 in the present year i.e. in 2017.
In 1950’s about 13 % of the court decisions were given by the five- judge bench or larger bench. As the number of backlog cases increased, they usually sat on the smaller benches. Though according to Article 145(3) there should be at least five- judge bench to decide the case involving the substantial question of law, however, by the 1970’s the number of the reported judgment delivered by two- judge bench is more than that of three- judge bench.
Jurisdiction: About 60% of the Constitution Benches were receiving appeals. On the other hand, only 30% they were directly brought to the court under its writ jurisdiction, 6% in some cases where appealed and brought under writ jurisdiction while the remaining 4% were brought under Article 131 of the Constitution.
The Issues: Constraints of a number of judges and increasing pendency.
The Chief Justice Warren Burger once said,
“All litigations are inherently clumsy, time-consuming business”
What judiciary is facing is the constraints of the number of the judges, presently in 2017, we have 28 sitting judges in the Supreme Court and is short of three.
Increasing pendency of the cases which further rose by 3% in 2016 as compared to 2015. The number of the judgment given by the Constitution Bench since independence is 2294 till 2016. Nick Robinson a legal researcher, who has compiled and analyzed the data of 50 years of the Supreme Court and found out that the number of the cases decided by these Constitution benches has been falling steadily from an average of 134 cases during the 1960s to an average of 6.4 cases per year in 2000s.
A possible cause of this increase in the pendency of the cases is that over the years the Supreme Court has started taking up routine matters and has become a court of appeal and rectifying the errors made by the High Courts or other tribunals. Court has taken too much of its plate by allowing any litigant and entertaining all kinds of petitions/applications that come before it and somewhere the main reason behind the creation of the Constitution Bench to decide the cases involving a substantial question of law has lost eventually over the years. They had lost its character and had become an apex court solving the disputes of the litigants, and the cases involving the substantial question of law or general importance has been kept aside.
Further, as substantial questions relating to the interpretation of the Constitution were of the utmost importance, the Constitution provided that such questions should be decided by large benches of judges and the minimum number of judges who were to sit for deciding such questions should be five, but in contrast this kind of cases are generally decided by the two-judge bench.
Presently, all this has changed. The Supreme Court of India has lost its original character and has gone far away with the main idea of the frames behind the creation of the Constitution Bench by self-enlargement of its jurisdiction making itself a general court of appeal by routinely entertaining special leave petitions between litigants which do not involve important constitutional issues or issues of law of general importance. The number of the SLPs and PILs was pending before the court which does not involve any substantial question is increasing every year. And between all these pendency the cases of Constitution and the National importance has been sidelined and not heard for many years. In 2015 only 4 cases were decided.
Presently, the cases of significant importance are decided by the two-judge bench in contrast to the minimum requirement of a five-judge bench; the example can be seen in the case where the Supreme Court nullified Section 8(4) of the Representation of the People Act, 1951. This important decision on the interpretation of Parliament’s legislative powers on members of legislatures convicted of offenses was delivered by a bench of two judges of the Court despite the Constitutional requirement that substantial questions of interpretation of the Constitution should be decided by not less than five judges. A similar situation is in 2G Spectrum case.
The Way ahead:
Considering the entire scenario and the evolution of the new jurisprudence and law over the years and with the possible interpretation of the provisions of the Constitution, the main idea of the framers of the Constitution behind the creation the Constitution Bench was to decide upon the case which involves the substantial question of the law, so that the time of Judiciary is not wasted.
Therefore, the possible interpretation is that the “Article 133 should be read with Article 145(3) i.e. whenever the case under Article 133 involves a substantial question of law or general importance it should be heard and decided by the Constitution Bench consisting of the minimum five-judge bench.”
The Supreme Court should embrace its original role perennial source of definitive judgment and the interpreter of law rather than an apex court taking up all routine cases.
By this way, only the main idea behind the creation of the Constitution Bench can be sustained which will not allow the valuable time of the judiciary be unnecessary wasted and there will be no pendency of the cases as well as they will only take up the cases involving the substantial question of law.
Other important points to be concluded-
- If the Court gives a sound judgment about what amounts to a “substantial question,” that would be immensely helpful in providing some level of certainty to the jurisprudence around Article 145(3).
- Need to constitute a separate Constitution bench that would sit throughout the year to deal only with matters of the kind mentioned in Article 145(3) is already pending as a part of the suggestion.
- Constitution bench should be selected randomly to ensure that CJI does not have much power in which judge will sit on which bench.
- The discretion of the CJI should also be decreased about when these benches will be heard.
- Many of the cases can be clubbed together and can be heard together which are creating the backlog.
Constitution Benches were known to give India’s best known and the critical judgements like A.K. Gopalan vs. State of Madras (Right to life), Keshavananda Bharati vs. State of Kerala (Basic structure doctrine) and Ashok Kumar Thakur vs. UOI (Reservations) as still are jurisprudence is developing with the judicial pronouncement and the judgements given by higher bench has more definite authority.
In the end, I would like to conclude what had been prevailing in the society cannot be changed overnight. The loss and the pendency can be mitigated together with the help of Judiciary, Government and its people discharge their respective obligations so that the justice delivery system is strengthened to achieve a vibrant rule of law.
 Shri T. T. Krishnamachari was speaking in Constituent Assembly Debate on 6th June 1949
 Shri Alladi Krishnaswami Ayyar was talking in Constituent Assembly Debate on 6th June 1949
 Constitution of India
 AIR 1950 SC 27
 AIR 1973 SC 1461
 (2008) 6 SCC 1
 Supreme Court of India Annual Report (2009) and All India Reporter (AIR).
 Economic & Political Weekly February 26, 2011, Vol XLVI No 9
 K.Prabhakaran vs. P.Jayarajan SC, 2005