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What Is Judicial Majoritarianism?


As the recent majority judgment of the Supreme Court on demonetisation comes under criticism, the minority judgment by J. Nagarathna is being hailed for its challenge to the RBI’s institutional acquiescence to the Central government. This questions our blind acceptance of numerical majorities in judicial decision-making.


GS II: Polity and Governance

Dimensions of the Article:

  1. What is judicial majoritarianism?
  2. Heart of the Debate

What is judicial majoritarianism?

  • As opposed to standard matters heard by Division Benches consisting of two judges, numerical majorities are of particular importance to cases which involve a substantial interpretation of constitutional provisions.
  • In such 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.
  • This is done to facilitate decision-making by ensuring numerical majorities in judicial outcomes.
  • 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 of the judges but that judges are free to deliver dissenting judgments or opinions.

Heart of the Debate:

The Role of Judges in Resolving Disagreements:
  • Unlike representatives in legislative bodies who may rely on intuition or public opinion, judges are experts in law and are familiar with the arguments for and against a particular issue.
  • Despite this, Jeremy Waldron raises the question of why judges still resort to head-counting to resolve disputes among them.
Differences in Judicial Decisions:
  • All judges in a particular bench make their ruling based on the same set of arguments and written submissions.
  • Differences in judicial decisions can be attributed to differences in the methodology and logic applied by judges or, as legal realists such as Jerome Frank suggest, to their own “judicial hunches,” which may be influenced by their personal experiences, perspectives, and biases.
  • In such cases, it is possible that the majority may make methodological errors or be limited by their “judicial hunch.”
  • Even a well-reasoned minority decision may not receive much weight in terms of its outcomes.
  • There are several examples of meritorious dissents in constitutional history, such as the dissenting opinion of Justice H.R. Khanna in the case of A.D.M. Jabalpur v. Shivkant Shukla (1976) and the dissenting opinion of Justice Subba Rao in the case of Kharak Singh v. State of U.P. (1962).
Influence on the Rate of Dissent:
  • The rate of dissent is subject to various influences, such as the political climate at the time.
  • A study by Yogesh Pratap Singh, Afroz Alam, and Akash Chandra Jauhari (2016) found that the rate of judicial dissent during the Emergency in 1976 was only 1.27% compared to 10.52% in 1980.
  • The study also found that the rate of dissent was lower when the Chief Justice was part of the bench compared to when the Chief Justice was not present.
  • Such findings raise questions about the efficiency and desirability of head-counting procedures for determining questions of national and constitutional importance.

-Source: The Hindu

December 2023