Last week, a nine-judge bench of the Supreme Court heard arguments on whether privacy is a fundamental right.

Nine judges on a single bench is fully one-third of the current roster of appointed judges in the Supreme Court. When the Supreme Court was born in 1950, there were a total of seven judges and a chief justice. All eight sat in judgement over each case. Progressively, and as the case load increased, the number of judges has gradually increased to a total of 31 today, as amended by Parliament in 2008. Of these 31 slots, 27 are filled today.

Between independence and the mid-1970s, the number of admitted cases rose from about 1,000 to about 5,000. During and immediately after the Emergency period, the case load quintupled. According to Nick Robinson—now at Yale University—who wrote a series of enlightening articles about the Supreme Court, there was a dramatic drop-off in the number of recorded admission and regular hearing matters pending before the court in the mid-1990s. This arose because the court changed how it accounted for matters by counting each clubbed matter rather than each hyphenated matter relating to the same case separately. It also instituted a framework for clubbing matters more effectively at the lower court levels. Despite this, the number of backlogged cases has risen again and runs to approximately 60,000 today.

One way that the Supreme Court has tried to keep pace with the increasing case load has been to institute small bench hearings. Over the years, with similar matters being heard by different but small benches, the Supreme Court has acquired what Robinson calls a polyvocal character. Robinson describes it thus: “A decision of the Indian Supreme Court is almost never a judgement of the entire court. Most judgements are from benches of just two or three judges. This sprawling structure of the Indian Supreme Court, with its many benches hearing hundreds of cases between them on any given day, is a product of the historical prioritization—by the Constitution, Parliament, and the judges themselves—of wide access to the Supreme Court." This inclusive access to the Supreme Court makes for a large case load and lends a polyvocal character to its decisions. Robinson adds: “The roots of valuing wide access to the Supreme Court are both idealistic and pragmatic. An often distant and rigid government is suddenly made personal and (potentially) responsive at the pinnacle of judicial power. India’s Constitution was meant to be transformative. The Constitution, and by extension the judiciary, was charged with changing a country rooted in hierarchy into one that internalized the liberal values of equality and freedom of expression for all its citizens."

Large benches are not the norm for the Supreme Court these days. According to Article 145(3) of the Constitution, a bench of at least five judges needs to sit in judgement on any case “involving a substantial question of law as to the interpretation of the Constitution". During the early decades after independence, constitution benches were created for over 100 cases in a decade. That number has slowed down to about 20 in each decade over the last 30 or so years. As a proportion of disposed cases, constitution benches have dropped to a fraction of 1% from over 5%. The largest bench that has ever adjudicated on a case is 13, in the matter of Kesavananda Bharati v. State of Kerala in 1973.

It is a matter of court practice that if past decisions of constitution benches are going to be re-examined, then the later constitution benches have to be of greater size than the earlier ones. By my count, this is the 15th nine-member bench of the Supreme Court. The current case being heard on privacy will re-examine the issue decided earlier by a six-member and an eight-member constitution bench. The issue of privacy itself has been debated in eight or more instances, several of which have been adjudicated on by smaller benches.

It is important to have a large bench decide major cases, particularly one that has a direct bearing on individuals. For a substantial question of law, the polyvocal character of the court creates ambiguity and results in a periodic requirement for review. A larger bench has greater legitimacy and greater value for precedent setting than a small bench. The tendency of the court to choose efficiency versus effectiveness and legitimacy will likely result in a greater case load over time, with the same issues swirling in a different context with each coming decade. Even though the Constitution was always meant to be a living and evolving one, continually re-examining basic issues of the Constitution leaves a rather confused state. Contrary to what the Law Commission recommended in 2009, a separate constitution bench outside the Supreme Court makes little sense. A better way would be to filter out the more mundane cases on the docket, allowing more time for constitutional jurisprudence. With the advent of the goods and services tax (GST) and the somewhat complicated split of GST into state GST, Central GST and integrated GST, the Supreme Court’s time will be in ever greater demand for issues of federal tax splits. In coming years, the Supreme Court may have to trade some of its inclusiveness for (constitutional) prioritization.

P.S. “At his best, man is the noblest of all animals; separated from law and justice he is the worst," said Aristotle.

Narayan Ramachandran is chairman, InKlude Labs. Read Narayan’s Mint columns here. Comments are welcome at narayan@livemint.com

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