Is judicial majoritarian rule justified?

While the Supreme Court’s recent majority judgement on demonetization has been criticised, J. Nagarathna’s minority judgement has been lauded for its challenge to the RBI’s institutional acquiescence (reluctant acceptance) to the Central government.

What is Judicial Majoritarianism?

  • Numerical majorities are especially important in cases involving significant interpretations of constitutional provisions.
  • The requirement for a majority consensus stems from Article 145(5) of the Constitution, which states that no judgement in such cases can be delivered unless a majority concurs.
  • It also allows judges to freely issue dissenting judgements or opinions.
  • In important cases, Constitutional Benches of five or more judges are established in accordance with Article 145(3) of the Constitution.
  • Such benches typically have five, seven, nine, eleven, or even thirteen judges.

Why in news?

  • Blind acceptance: This situation calls into question our blind acceptance of numerical majority judgements.
  • Disregard for dissent: This raises concerns about judicial decision-making and the constitutional disregard for dissenting judgements’ analysis and appreciation of arguments and evidence.
  • Analysts are now attempting to challenge the weightage given to numerical majorities in judicial decisions by our Constitutional Courts rather than the merits of their reasoning.

The crux of the debate: Why do experts need to use the term “majority”?

  • Defiance of merit: A meritorious minority decision, regardless of the flawlessness of its reasoning, receives little weightage in terms of its outcomes.
  • Complex situations: All of the judges on a particular Bench rule on the same facts, laws, arguments, and written submissions.
  • Judicial hunches can be the result of subjective experiences, outlooks, perceptions, prejudices, and biases.

Narrow margin: Some meritorious dissents in India

  • Our constitutional history is replete with such meritorious dissents. A prime example is Justice H.R. Khanna’s dissenting opinion in A.D.M. Jabalpur v. Shivkant Shukla (1976), which upheld the right to life and personal liberty even in situations of constitutional exceptionalism.
  • Another example is Justice Subba Rao’s dissenting opinion in the Kharak Singh v. State of U.P. (1962) case, which upheld the right to privacy and was confirmed by the court in the K.S. Puttaswamy v. UOI (2017) case.

Way ahead

  • Weighted assent in judgements: Ronald Dworkin proposes a system that may give more weightage to the vote of senior judges because they have more experience, or to the vote of junior judges because they may better represent popular opinion.
  • Getting rid of headcounts: Such alternatives, however, can be explored only after we identify and question the premises and rationales that underpin headcounting in judicial decision-making.
  • Consume critical discourse: One of the most fundamental gaps in our existing knowledge about the functioning of our Supreme Court is the lack of a critical discourse on judicial majoritarianism.
  • Cases to expert panels: As pending Constitutional Bench matters are scheduled for hearing and judgements are reserved, we must consider the judicial majoritarianism arguments that will be used to decide these cases.

@the end

  • The concept of judicial majoritarianism must be reconsidered.
  • The academic discourse on this topic is still in its early stages.
And get notified everytime we publish a new blog post.