Judicial majoritarianism

Subject : Polity

Section: Judiciary

Concept :

Against the backdrop of the recent Supreme Court judgement on demonetisation, the majority judgement of the Court on issues had been criticised while the minority judgement by Justice Nagarathna is being acclaimed.

Background

A five-judge Constitution Bench of the Supreme Court upheld the government’s process to demonetise ₹500 and ₹1000 banknotes through a gazette notification issued on the 8th of November 2016.
A Constitutional Bench of the Supreme Court upheld the government’s demonetisation process in a 4:1 majority verdict.

What is judicial majoritarianism?

While standard matters are placed in front of Division Benches which consist of two judges, cases that mandate the interpretation of constitutional provisions would require numerical majorities in order to reach a conclusion.
Hence to hear such cases that mandate the interpretation of the constitutional provisions, Constitutional Benches are formed which consist of at least five judges or more.
Constitutional Benches usually consist of five, seven, nine, 11 or even 13 judges (odd numbers) in order to facilitate decision-making via numerical majorities.
Constitutional Benches are set up in accordance with the provisions of Article 145 (3) of the Constitution.
As per Article 145 (3), a minimum of five judges must sit for deciding a case involving a “substantial question of law as to the interpretation of the Constitution”, or for hearing any reference under Article 143, which deals with the power of the President to consult the Supreme Court.
Article 145 (5) of the Constitution required a majority consensus for a judicial outcome.
According to Article 145 (5), “no judgment in such cases can be delivered except with the concurrence of a majority of the judges but that judges are free to deliver dissenting judgments or opinions”.

Constitutional history of meritorious dissents

In the A.D.M. Jabalpur v. Shivkant Shukla (1976) case: the dissenting opinion of Justice H.R. Khanna in upholding the Right to Life and personal liberty even during situations of constitutional exceptionalism is regarded as a remarkable example of meritorious dissent.
In the Kharak Singh v. State of U.P. (1962) case: the dissenting opinion of Justice Subba Rao in upholding the Right to Privacy which was later approved through the K.S. Puttaswamy Judgment is also a prime example of meritorious dissent.