Testing the efficacy of permanent Constitution Benches

The Constitution requires the presence of Constitution Benches (CBs) to interpret its texts and decipher important questions of law. They are constituted on an ad hoc basis by the Chief Justice of India.

The evolution of these benches in the Supreme Court has been marked by their instrumental role in developing and adjudicating constitutional principles since the nation's independence. However, CBs have stagnated in recent years despite their crucial role.

According to the data collected, CBs heard at least 440 cases during the years 1950-59. In 2022-23, however, the benches heard only 19 cases. Such a sharp decline in hearings has prompted deliberations on the establishment of a permanent Constitution Bench within the Supreme Court to deal with the issue of pending constitutional matters. However, it would be necessary to consider the temporal limitations of this bench's operation and its impact on the structure and functioning of the Supreme Court.

To constitute a bench of five, seven or nine judges, the Chief Justice would be required to select from a total of 32 incumbent Supreme Court judges. An issue (coined as the revolving door problem by scholars Aparna Chandra, Sital Kalantry and William Hubbard) is the comparatively brief tenures and premature retirements of Supreme Court judges, with approximately one judge retiring every two to three months for the next few years. This would necessitate a regular review of the composition of the permanent bench, which could affect the efficiency and stability of the bench itself.

Moreover, it is an acknowledged position that the Supreme Court is currently experiencing an overload of cases, with approximately 85,000 cases pending. In this regard, staffing a large percentage of judges on permanent benches (close to 30% of the total strength in the case of a nine-judge bench) would inadvertently increase the pendency of all other matters before the Court. The composition of a permanent bench would therefore have to be curated to ensure a balance between the regular hearings of the Court and the specialised hearings on constitutional matters.

In addition to the composition of the bench, the scheduling of these benches would result in a substantial alteration to the structure of hearings at the Supreme Court. Given the gravity of constitutional matters, the roster would need to be meticulously curated to ensure adequate time allowance for judges on the respective permanent benches, which could have a substantial impact on their daily caseloads.

It is not feasible for a bench to operate for extended periods. The question therefore arises as to how the roster might be formulated in such a manner as to take into account (i) the large number of cases pending and (ii) the limited number of judges. It follows that the composition and roster of a permanent bench must be carefully considered, to ensure that it does not have any adverse implications for the functioning of the Supreme Court itself.

Given the manifest challenges associated with composing a permanent bench, it would be pragmatic to explore a compromise. Rather than a permanent bench functioning at full capacity, a semi-permanent system could be implemented to enhance the productivity of CBs, while catering to the temporal limitations. The roster for the semi-permanent constitution bench could be structured to assign judges to respective benches on a rotational basis, with a proposed duration of six months per rotation. A designated weekly cause list would determine the number of cases to be heard by the bench each week, thereby establishing its operational duration.

Depending on the number of matters, the benches could decide to sit on either one or two days of the week. The average time taken by a five-judge bench to hear a constitutional matter is approximately 16 hours as per the data collected by the Constitution Bench Time Tracker initiated by JALDI (Justice, Access & Lowering Delays in India). If we were to extrapolate the time taken by a CB to hear cases for 5 hours a day, 2 days a week, over 6 months, they would have a total of 240 hours to hear such cases. This would mean that if the CB took an average of 16 hours per case, it could hear approximately 15 cases in 6 months.

This semi-permanent arrangement could mitigate the effects of (i) the limited incumbency and (ii) the revolving door problem by ensuring that judges would hear both constitutional matters and their regular cause lists simultaneously in a week. In a sense, this arrangement would be similar to the Green Benches established in High Courts across the country, constituted to hear environmental matters. The broader implication of this arrangement is that there would now be a system for hearing both constitutional and appellate matters simultaneously, which is analogous to the principles enshrined in the Constitution. What is needed to improve constitutional jurisprudence in the country is not just permanence, but an effective restructuring of the Supreme Court's operational processes.

Navami Krishnamurthy is a Research Fellow at Vidhi Centre for Legal Policy.

[This article is the fifth in a series by the JALDI (Justice, Access, and Lowering Delays in India) initiative at the Vidhi Centre for Legal Policy, analyzing the significance and functioning of Constitution Benches at the Supreme Court]