November 30, 2023

Good morning. In today’s either/view, we discuss whether a permanent constitution bench would help the Supreme Court of India.

Note: We will not publish the ‘State of the states’ and ‘Key number’ sections going forward.


Would a permanent constitution bench help the Supreme Court of India?

(Image credit: Subhashish Panigrahi, CC BY-SA 4.0, via Wikimedia Commons)

The Supreme Court is an essential part of any democracy. In many ways, they’re the last line of defence of the Constitution. Over the past several years, the apex court in India has ruled on matters of national importance like abortion and LGBTQ+ rights. It’s often referred to as the People’s Court. All this isn’t to say the court is perfect; far from it. In fact, the past several years have also seen spirited debate and discussion on reforming the court to best serve the people.

One of the proposals is for a permanent Constitution bench, proposed by Chief Justice DY Chandrachud. A permanent constitutional bench could help the court better deal with the pendency of cases that the Indian judiciary is infamous for. On the other hand, some are worried about some unintended consequences of such a bench and whether it would actually spur people to approach the court.


In the Supreme Court, most cases are usually heard by a division bench comprising 2-3 judges. An exception to this norm is a constitution bench comprising at least five judges. These benches are set up to hear extraordinary and substantial questions that require expert interpretation of the Constitution. Under Article 143 of the Constitution, the Chief Justice of India (CJI) is authorised to form such a bench.

Here are some scenarios when such a bench would be constituted – when the President of India has asked for the court’s opinion on a question or matter of law and when two or three-judge benches have delivered conflicting verdicts on the same issue.

Constitution benches have a storied history in India. They’ve decided on some landmark cases. In 1960, a seven-judge bench stated that Parliament can’t cede a state’s territory to another country. In Kedar Nath Singh v. State of Bihar (1962), the constitutionality of Section 124A of the Indian Penal Code, which penalises sedition, was upheld.

When the Supreme Court began functioning in 1950, it had a total of eight judges. In the 1950s, about 13% of the court’s decisions came from a bench with five or more judges. While the number of judges in the Supreme Court has increased to over 30 currently, there has been a decline in constitution benches.

In the 1960s, the Court averaged about 100 five-judge or larger benches. This decreased to about 9 in the first decade of the 2000s. While the court decided about 5,000 regular hearings a year in the 2000s, it arguably produced less jurisprudence on substantial matters involving constitutional law. Compare this with the US Supreme Court. In 2009, it wrote just 72 judgments, but they often dealt with crucial constitutional issues.

The idea for a permanent constitution bench isn’t recent. In 2019, then Chief Justice Ranjan Gogoi wrote to the Prime Minister outlining the need to increase the number of judges. With the exponential increase in cases, successive CJIs have found it difficult to set up five-judge benches.

Cut to a couple of months ago, CJI Chandrachud also expressed the need for a permanent constitution bench.

VIEW: A necessity for the court

A long-demanded structural reform of the Supreme Court is a permanent constitution bench. History and data are good reasons why this is necessary. When we look at constitution benches in the 1960s, they decided an average of 134 cases. That number declined to 6.4 in the latter half of the 2000s. In the first half of this year alone, constitutional benches convened 55 times and delivered 13 judgments. That’s the most in a decade.

Per the Constitution, the Supreme Court serves two important roles – a constitutional court and a national court of appeal. However, the court has rarely functioned in its full strength. Constitutional benches have become something of a luxury. Since the court now has 32 judges, it’s in a better position to perform its two roles. With additional reforms like time management and time limits on oral arguments, the court would become far more effective.

Constitution benches and their judgments are vital since they affect a large number of people. Some pertinent examples are the validity of Section 6A of the Citizenship Act, the validity of constitutional amendments to Section 334 about reservation for SCs and STs, etc. When such a judgment is delivered, it can be applied to hundreds of other litigants. Multiple cases can be disposed of based on a single constitution bench verdict. There are over 80,000 pending cases.

COUNTERVIEW: Would it actually do any good?

Merely having a permanent constitution bench wouldn’t suffice. In fact, without other reforms like how judges conduct proceedings and judgements thereafter, the court can’t fulfil its constitutional roles. Structural reforms in the Supreme Court have been a long-pending demand. It’s the first step that needs to be identified and rectified before there’s talk of permanent benches.

While the pendency of cases in the high courts and the Supreme Court has been discussed at length, the problem lies in the lower courts. Over 90% of all pending cases stem from the lower courts, which include district and subordinate courts. In many cases, even a high court verdict is deemed unsatisfactory, and the Supreme Court has to hear their appeals. While the court can’t free itself from being a court of appeal, it does need to relook the kinds of cases it takes up.

Given the issues of inadequate judicial strength, even a permanent constitutional bench wouldn’t help. It would be a half-baked solution. The sanctioned strength of the Court is supposed to be 34. Another thing to note is that while a permanent bench might give the court more time to hear constitutional matters, slow-moving matters may increase pendency in the short run.

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What is your opinion on this?
(Only subscribers can participate in polls)

a) A permanent constitution bench will help the Supreme Court of India.

b) A permanent constitution bench will not help the Supreme Court of India.


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