The Chief in the minority: Why does this matter?

DESK BRIEF: Since 1950, a Chief Justice has dissented all of 13 times in a Constitution Bench case

Earlier this week, a five-judge Bench of the Supreme Court held that queer persons did not have a right to marry. Though this Bench, led by Chief Justice D.Y. Chandrachud agreed on this central question, it split 3:2 on queer persons’ right to a state recognised civil union, and adoption rights. The CJI, interestingly, was in the minority in this judgement. 

On a first glance, this may not seem interesting at all. In a five-judge bench, dissents are expected and are welcome. As the CJI said himself, dissent is the “safety valve of democracy”. A closer look however shows that the Chief Justice hardly ever dissents in a Constitution Bench. Data suggests that since 1950, a CJI has dissented all of 13 times in a Constitution Bench case. 

“The Indian Supreme Court…”, legal scholar Nick Robinson and others explain, is “chief justice-dominant.” As Master-of-the-Roster, the CJI is tasked with assigning cases to judges and handpicking judges to hear constitution benches. With constitution benches, where the Court is deciding substantial questions of law, there appears to be no discernable pattern to how judges for the bench are chosen by the CJI. Robinson suggests that the “chief justice is potentially picking benches that are more likely to decide in a way that he favours.” 

Professor George Gadbois’s research takes the example of CJI K. Subba Rao. Before being appointed as Chief Justice, CJI Rao dissented 48 times, often, with strong “anti-government” judgements, “more often than any other judge in the Supreme Court’s history.” In his 9.5 month tenure as CJI, not once did he have to dissent with the majority. Gadbois notes that in CJI Rao’s tenure as Chief, there were 167 cases against the Union government, of which private parties won 83 times—a high winning rate not seen under any of his predecessors. 

In conversation with SCO, Dr. Aparna Chandra pointed out that “the Chief Justice being able to carry the majority with them …is an incredible power.” The claim that the CJI is merely first among equals, that the only difference between the CJI and the associate judge is administrative duties, might not paint the full picture. This administrative power, she explained, “is shaping judicial outcomes”. More often than not, this exercise of power also means that the CJI “disproportionately allocates constitution bench matters, the most salient matters, to themselves”.

So what does it mean then, that 15% of CJI’s dissents in a Constitution Bench were in the last two years alone? In 2022, CJI U.U. Lalit was in the minority with Justice S.R. Bhat in the challenge to reservations for economically weaker sections, followed now, by the incumbent CJI in the plea for marriage equality. Before that, in 2017, CJI J.S. Kehar dissented in the judgement that declared the practice of triple talaq unconstitutional.

Perhaps this is indicative of a gradual shift towards ensuring the presence of an ideologically diverse bench. This hypothesis may soon be put to test, with a sharp increase in the number of constitution bench cases being heard at the Supreme Court. The fact remains however, that in Constitution Bench allocations, the CJI continues to assign the cases to himself. In the Court’s recent exercise of hearing and clearing pending constitution Bench cases, the Court set up five judge benches to hear In re: Article 334 of the Constitution of India, Sita Soren v Union of India, and In re: Section 6A of the Citizenship Act, 1955. Sita Soren was referred to the seven-judge bench. Another seven-judge heard the challenge to validity of an unstamped arbitration agreement. The CJI presided over all these cases. 

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