Judicial Majoritarianism

Context: As the recent majority judgment of the Supreme Court on demonetisation comes under criticism, the minority judgment by J. Nagarathna is being hailed for its challenge to the RBI’s institutional acquiescence to the Central government.

About Judicial Majoritarianism:

• As opposed to standard matters heard by Division Benches consisting of two judges, numerical majorities are of particular importance to cases which involve a substantial interpretation of constitutional provisions.
• In such cases, Constitutional Benches, consisting of five or more judges, are set up in consonance with Article 145(3) of the Constitution.
  • Such Benches usually consist of 5, 6, 9, 11 or even 13 judges.
• This is done to facilitate decision-making by ensuring numerical majorities in judicial outcomes.
• Article 145(5) of the Constitution: It states that 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.

Differences among the judges and methodological fallacies:

• Any differences in judicial decisions can be attributed to a difference in either the methodology adopted and the logic applied by the judges.
• The differences can also be attributed to the judges’ own ‘judicial hunches’ which may be an outcome of their subjective experiences, outlook, and biases.
• In such circumstances, it is entirely possible that the majority may fall into either methodological fallacies and errors or be limited by their ‘judicial hunch’ respectively.
• In such situations, a meritorious minority decision, irrespective of the impeccability of its reasoning receives little weightage in terms of its outcomes.
• For example:
  • The dissenting opinion of Justice H.R. Khanna in A.D.M. Jabalpur v. Shivkant Shukla (1976) upholding the right to life and personal liberty even during situations of constitutional exceptionalism.
  • Dissenting opinion of Justice Subba Rao in the Kharak Singh v. State of U.P. (1962) case upholding the right to privacy which received the judicial stamp of approval in the K.S. Puttaswamy v. UOI (2017) case.

Dissenting opinions:

• The rate of judicial dissent at the height of the Emergency in 1976 was a mere 27% as opposed to 10.52% in 1980.
• The rate of dissent where the Chief Justice was a part of the Bench was lower than in those cases where the Chief Justice was not on the Bench.
• Such situations call into question the efficiency and desirability of head-counting procedures for a judicial determination on questions of national and constitutional importance.

Source: The Hindu

Previous Year Questions

Q.1) A legislation which confers on the executive or administrative authority an unguided and uncontrolled discretionary power in the matter of the application of law violates which one of the following Articles of the Constitution of India? (2021)

1. Article 14
2. Article 28
3. Article 32
4. Article 44

Q.2) With reference to Indian Judiciary, consider the following statements.

1. Any retired judge of the Supreme Court of India can be called back to sit by the Chief Justice of India with prior permission of the President of India.
2. A High court in India has the power to review its own judgement as the Supreme Court does.

Which of the statements given above is/are correct? (2021)

1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2