#GS 02 Judiciary
- In case of cases which involve a substantial interpretation of constitutional provisions Constitutional Benches, consisting of five or more judges, are set up in accordance with Article 145(3) of the Constitution.
- These Benches usually consist of five, seven, nine, 11 or even 13 judges in order to facilitate decision-making by ensuring numerical majorities in judicial outcomes.
- Article 145(5) of the Constitution is the bases for a majority consensus and it states that no judgment in such cases can be delivered except with the concurrence of a majority of the judges.
- However, it also provides that judges are free to deliver dissenting judgments or opinions.
The issue with Judicial majoritarianism
- Unlike the legislature which is filled by politicians who may act on hunches or popular perception, judges are experts of law and are aware of the arguments for and against an impugned matter.
- Hence the need to resort to head counting in order to resolve disagreements amongst judges seems a bit bizarre.
- Since all judges on a particular Bench give their rulings on the same set of arguments and written submissions, any differences in judicial decisions can be attributed to either of two factors.
- The first factor can be the difference in either the methodology adopted and the logic applied by the judges.
- While another factor can be their own ‘judicial hunches’ which may be an outcome of their subjective experiences, outlook, and biases.
- Hence, it is entirely possible that the majority may fall into either methodological fallacies and errors or be limited by their ‘judicial hunch’ respectively.
- However, even in such situations, a meritorious minority decision, regardless of the impeccability of its reasoning has little effect on the outcome.
Source “Is judicial majoritarianism justified?”
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