Monday, February 28, 2011

Studying the Constitution Bench

In this piece in the most recent edition of the EPW I and my co-authors - Anjana Agarwal, Vrinda Bhandari, Ankit Goel, Karishma Kakkar, Reeba Muthalaly, Vivek Shivakumar, Meera Sreekumar, Surya Sreenivasan, and Shruti Viswanathan - systematically examine all constitution benches since independence. It is well known that the frequency of constitution benches have been in decline for some time (the highwater mark was an average of 134 such cases a year during 1960-64, which has dropped down to a low of 6.4 a year during 2005-2009). Further, as has been mentioned on this blog, several important matters that deal with a substantial question of constitutional law are no longer heard by a five judge or larger bench, seemingly violating this constitutional requirement.

This article verifies the decline in constitution benches in real numbers for the first time in any place that I know of. Further, it looks at how these benches have changed over the years: with opinions becoming longer, more split, and more difficult to determine the victor. Some findings are a bit mysterious - like why appellants/petitioners are doing substantially better in the last couple decades in these cases. Other results seem at first counter-intuitive, but make sense upon further reflection, such as the most foreign citation happening by the Court in the first decade of independence (far before our "globalized" era, but in the fledgling first years where there was little Indian precedent to rely on except colonial era cases). Finally, still other findings were already known, but this study gives more detail and weight - such as Chief Justices disproportionately not being in dissent (we only found a CJI in dissent 10 times since independence), which perhaps indicates they are choosing these benches to their liking (for more on this see this article I wrote in July in India in Transition).

Such quantitative studies as this one have clear drawbacks. One can't get a sense of the importance of individual cases without reading them through and placing them in their context. One can't tell the history of the court in numbers - without narrative, without invoking the values that run through it. And yet, I think such studies are still useful. They give us hard numbers (or relatively hard ones) upon which we can make grounded statements about certain developments we have seen on the court. We can better understand it as an institution. We can say constitution benches are becoming less frequent, we can say opinions are getting longer. This might not be much, but we can say it on solid ground. And that is more than what one can hope for in most discussions about the law. Why the court is hearing fewer constitution benches or writing longer opinions. Or whether it should. Those are questions numbers can't answer, but which they can inspire debate about, and hopefully will.
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