The Supreme Court, in August 2022, had notified that 25 constitution bench matters will be listed before the relevant benches from August 29. August 29 was the first working day of newly Chief Justice of India (CJI) U.U. Lalit.



CJI UU Lalit’s move to list 25, five-judge bench matters for hearing has gladdened many Supreme Court watchers. A frequent complaint about SC recently has been that it seemed to ignore cases that can only be heard by constitution benches.


About the Constitution Bench

  • Article 145(3) of the Constitution stipulates that a minimum of five judges must sit for any case involving a substantial question of law, involving the interpretation of the Constitution.
  • This bench is referred to as the Constitution bench.
  • Conflicting verdicts of three-judge benches also need five-judge benches to hear the matter.


Decline in Constitution Bench hearing

  • As per the Constitutional experts, the constitution benches heard over 15% of all matters in the early 1950s against closer to 0.1% in recent decades.
  • They highlighted that, in early 1960s, the court decided over 130 constitution bench judgments a year against just a handful per year in recent times.


Constitution bench in early decades

  • In early decades, apex court took on a large number of constitutional law matters as it treated violations of fundamental rights as a substantial question of constitutional law.
  • SC as a people’s court allowed many common people for the first time to take on the mighty state.
  • The very first constitution bench matter, AK Gopalan vs State of Madras, 1950, upheld the preventive detention law.
  • Later, GoI found itself at the receiving end as constitution bench and high court decisions on free speech, reservation and land reform matters frustrated government policies.
  • The frequent disagreements between government and the apex court came to a boil in 1973.
    • The then CJI SM Sikri constituted the 13-judge constitution bench to hear the Kesavananda Bharati case.
    • The Kesavananda Bharati verdict remains an important shield against executive overreach to this day.


Need to setup Constitution Benches

  • Cases involving interpretation of constitutional law heard by two and three judge benches —
      • Off late, two and three-judge benches have frequently heard cases involving interpretation of constitutional law.
        • Many experts believe this as a wrong precedent.
        • The auction-only rule for natural resources of the two-judge bench that cancelled 122 2G licences was overruled by a five-judge constitution bench on a presidential reference.
        • A two-judge bench struck down Section 66A of IT Act. Another two-judge bench re-criminalised homosexuality in 2013
        • It was a five-judge bench that, in 2018, finally defanged Section 377 of IPC, after a nine-judge bench in 2017, hearing the issue of the right to privacy, legitimized sexual autonomy.
      • Also, judicial scrutiny of coordinate institutions like Parliament, EC, CAG, etc, is best done by five-judge benches.
  • Many big issues are pending —
      • Currently, there are many big issues, involving substantial question of law, are pending.
      • This includes electoral bonds, EWS quota and certification of some laws as money bills etc.
      • A constitution bench is required to deliberate on these issues.


What are the challenges?

  • India’s Constitution framers wanted our top court to be a people’s court, hearing everything from rights violations to taxation and bail matters.
    • It also entertains unique special leave petitions against orders/decrees of other courts.
  • To satisfy this constitutional mandate, CJIs had no option but to delegate work to two judge benches.
  • Also, the pandemic disrupted SC’s routine, and there is frightening pendency in the apex court. In this case, constituting a 5-judge bench becomes challenging.