JIndal Global Law School, India
The Supreme Court of India (“Court”) has, for much of its life, seen low rates of dissent. While the rate of non-unanimity, somewhat respectably, hovered at around 8.4 per cent in its early years, it has languished at less than 1 per cent in more recent times. This has naturally evoked curiosity given that it is the court of last resort in India, tasked with deciding presumably the most contentious or controversial legal issues here. While different explanations have been proffered for this phenomenon (primarily, the nature of cases heard by the Court and the increasing use of two-judge benches), I will briefly consider the most controversial of them – the untrammelled and unguided power of the Chief Justice of the Court (“Chief Justice”) to constitute benches and assign matters. In other words, I will consider whether the power of the Chief Justice, as the master of roster, is used to exclude, or has the effect of excluding dissident voices.
This power of the Chief Justice is also at heart of the recent controversy plaguing the Court. While cases are ordinarily allocated through a computer program based on subject category, the subject-wise roster is prepared by the Chief Justice; and besides, the computer allocation may be overridden by the Chief Justice. More importantly, where the matter is to be heard by a larger bench, for instance, where the case involves a question of constitutional interpretation, the discretion available to the Chief Justice is greater. The allegation is that the present Chief Justice has assigned ‘cases having far reaching consequences’ to benches ‘of their preference’ without ‘any rational basis.’ This was apparently said in the context of two cases particularly – one seeking a probe into allegations of bribery against judges of the Court, and the other into the suspicious death of a judge, B.H. Loya, who was hearing a politically sensitive case. These suggestions raise serious doubts on the independence of the institution, and that has been the primary concern of those critical of the aggregation of power in the hands of the Chief Justice. However, the integrity of the decision-making process, as a whole, is made suspect by the possibility that benches could be populated by judges of a particular bent of mind, in a bid to influence the eventual outcome. It is here that the presence of dissent on the Court can serve as reassurance that the decision-making process is not dictated by any one person. Where each judge irrespective of their personal predilections has an equal chance to serve on benches hearing important matters, and is able to freely express their difference in opinion, one would expect to see dissents frequently. However, an examination of the dissent rates does not offer any such assurance.
I examined all judgments pronounced by three-judge and five-judge benches during the tenure of the present Chief Justice (as available on SCC Online) and found that all of the 3 five-judge bench cases and all but 2 of the 108 three-judge bench cases were decided unanimously. Unlike on two-judge bench cases, where disagreement is rare, the rate of dissent in cases decided in larger benches is expected to be higher than the average. This is because larger benches usually hear matters that are more salient, or at least more contentious. Mathematically too, the probability that all the judges will agree is lower in larger benches. Nonetheless, dissent is near absent in the three and five-judge bench cases decided in this time.
While the reasons for this could be many – the nature of the cases at hand or the personality of the individual judge – one cannot eliminate the possibility that the pattern of bench composition impacted dissent. I examined the bench composition in these cases, and found that a handful of judges are overrepresented on the bench. The Court presently has twenty-four judges, yet it is curious that all the three five-judge bench cases decided in this period, were decided by a bench comprising of Dipak Misra, C.J. and A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, JJ. Similarly, I examined the bench composition in the three-judge bench cases, and found that 77 of the cases (i.e. more than 70 per cent of the total) were decided by a bench comprising Dipak Misra, C.J. and A.M. Khanwilkar and D.Y. Chandrachud, JJ. The bench that dismissed the petition seeking an enquiry into the death of Judge Loya was composed of the same three judges; and A.M. Khanwilkar, J. whose recusal was sought in the case seeking a probe into allegations of bribery against judges of the Court, has been on 80 per cent of all the three judge-bench cases and every five-judge bench.
Of course, the frequent presence of certain judges in important matters cannot lead us to the conclusion that bench composition has been engineered to ensure certain outcomes, despite the near absence of dissent. However, its implication for dissent generally must be considered. A large court, such as this one, is bound to have a diversity of opinions, the benefit of which is entirely lost if only a handful of judges are repeatedly hearing important matters. Having divergent perspectives on the bench, sometimes reflected in a dissent is bound to add robustness to the decision-making process, and result in better-reasoned judgments. Instead, it is seen for instance that less than 20 three-judge bench cases have one of the four senior-most judges (and Jasti Chelameswar, J. in none). Further, while collegiality among these judges is likely to grow when they frequently sit together on benches, it is also likely to reduce dissent. The potential impact on collegiality is one of the major costs of dissenting, and may act as a deterrent. It is hardly surprising therefore that of the 77 three-judge bench cases decided by Dipak Misra, C.J. and A.M. Khanwilkar and D.Y. Chandrachud, JJ. only one is not unanimously decided – which was interestingly decided in the early days of this association.
However, the solution is not merely for the Chief Justice to allocate matters to a wider pool of judges. As long as they have wide discretion in constituting benches, dissent is likely to be low, for it may encourage other judges to align themselves to a Chief Justice by suppressing their differences in opinions, to ensure they are part of larger benches. After all, judges too are affected by concerns of reputation and legacy, much of which is dependent on their presence on the bench hearing salient cases. Thus, while this unbridled power of the Chief Justice is admittedly on the administrative side, it could severely constrain decision-making by other judges on the judicial side. The concerns that I present here are, of course, apart from the possibility of actual abuse of the Chief Justice’s administrative power so as to exclude dissident voices and ensure favourable judicial outcomes. However, the possibility of arbitrary exercise of this power has recently been dismissed outright by the Court, with the decisive declaration that ‘there can be no presumption of mistrust (against the Chief Justice).’ Therefore, even if we are to bow to the fiction that the Chief Justice can do no wrong, I hope this piece makes a compelling case against the master of roster power of the Chief Justice by examining dissent.
Krithika Ashok is an Assistant Professor at Jindal Global Law School, India.