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

What is Judicial Majoritarianism?

• Numerical majorities are of particular importance to cases which involve a substantial interpretation of constitutional provisions.
• The requirement for a majority consensus flows from Article 145(5) of the Constitution which states that no judgment in such cases can be delivered except with the concurrence of a majority.
• It also provides for judges to freely deliver dissenting judgments or opinions.
• In important 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 five, seven, nine, 11 or even 13 judges.

Why in news?

• Blind acceptance: This situation raises questions with respsect to our blind acceptance of numerical majority judgements.
• Disregard for dissent: This flags issues in judicial decision-making and the constitutional disregard of analysis and appreciation of arguments and evidence in dissenting judgments.
• Merits of dissent: Analysts now seek to challenge the weightage given to numerical majorities in judicial decisions by our Constitutional Courts as opposed to the merits in their reasoning.

Heart of the debate: Why do experts need to resort to ‘majority’?

• Defiance of merit: A meritorious minority decision, irrespective of the impeccability of its reasoning receives little weightage in terms of its outcomes.
• Complex situations: All judges on a particular Bench give their rulings on the same set of facts, laws, arguments and written submissions.
• Nature of bias: Judicial hunches may be an outcome of subjective experiences, outlooks, perceptions, prejudices and biases.

Narrow margin: Some meritorious dissents in India

Our Constitutional history is replete with such meritorious dissents-

• 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 is a prime example.
• Another example is the 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.

Way forward

• Weightage-based assent in judgments: Ronald Dworkin proffers a system that may either give more weightage to the vote of senior judges given that they have more experience or to the junior judges as they may represent popular opinion better.
• Doing away with headcounts: Such alternatives, however, can only be explored once we identify and question the premises and rationales which underlie head-counting in judicial decision-making.
• Imbibe critical discourse: The absence of a critical discourse on judicial majoritarianism represents one of the most fundamental gaps in our existing knowledge regarding the functioning of our Supreme Court.
• Cases to expert benches: As pending Constitutional Bench matters are listed for hearing and judgments are reserved, we must reflect upon the arguments of judicial majoritarianism on the basis of which these cases are to be decided.

Conclusion

• There is a need to reflect upon the concept of judicial majoritarianism.
• The academic discourse on this aspect is still nascent and developing.

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