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.

But why should we care if these cases are heard by three judges or five or nine or just one? The most obvious answer is that the Constitution mandates it. Fidelity to the rule of law seems to imply that at least five judges should hear these cases. This might be answer enough, but there are other reasons as well.

More judges mean that there will be more points of view, greater reflection and more thorough analysis offered in these vital cases that will help set the direction of the country for decades to come. It also gives such judgments added value and legitimacy. It is more difficult to overturn a five-judge bench than a two- or three-judge bench, meaning the public can have more confidence in the stability of the law on issues that affect millions of lives. More judges also mean that it is likelier that the opinion of the bench will reflect that of the overall Supreme Court and not just two or three judges with a minority viewpoint. This is all the more critical in cases where novel questions of law are being addressed and there is no clear precedent on the issue.

Alternatively, when there is a clear precedent, more judges are required to overturn the decisions of these earlier benches. Court watchers already worry that some of today's smaller benches are effectively reshaping doctrine by ignoring or de-emphasising judgments of earlier and larger constitution benches, undermining the court's entire system of precedent.

Given all these benefits to larger benches, one has to wonder why they are not being constituted more often. A likely answer, but not an excuse, can be found in the court's famously daunting backlog. As the court has found itself bogged down with more and more cases (over 50,000 are currently pending), it has become more difficult to have larger benches as they take judges away from disposing of the pressing line of backlogged matters. This hypothesis seems to be confirmed in the statistics. In the 1960s, a much less congested Supreme Court heard about 100 five-judge or larger benches a year. By the first decade of the 2000s, the court averaged only about 10 constitution benches a year.

The issues and values at stake in reforming the court are not minor. Focusing more judges on constitution benches could come at the cost of less access to the court for other matters. Alternatively, expanding the court's size to deal with them could lead to deterioration in the cohesiveness of its jurisprudence. Meanwhile, doing nothing will continue to undercut the institution's legitimacy and the quality of its work.

A first step could be in at least making clear how to determine when a case involves a "substantial question" of constitutional law and so requires a larger bench. In none of the above cases did the judges justify why the matter was being heard by less than five judges  perhaps because no such fully articulated test currently exists. There are no easy answers here, but the public should have confidence that this problem is being addressed head on and that the court is laying out a vision for how it wants to balance the many competing pressures on its time and judges.

The writer is a visiting fellow at the Centre for Policy Research, Delhi

express@expressindia.com

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