Historic - SC to get permanent five-judge constitution bench: Will Hear Cases Involving Statute & Complex Laws

Source: Times of India dated 21.09.2019

Dhananjay Mahapatra - New Delhi
For the first time in its nearly 70-year-long history, the Supreme Court is set to realise the dream of the Constitution-framers by creating a permanent five-judge Constitution bench, to be available round the year to adjudicate complex constitutional questions and interpret laws.

Starting with a strength of eight judges in 1950, including the Chief Justice of India, the judges’ strength is now 34, with a recent amendment by Parliament after CJI Ranjan Gogoi wrote to Prime Minister Narendra Modi outlining the urgent need for an increase in SC judges’ strength in proportion to the increase in litigation.

This gave CJI Gogoi freedom to decide that from October 1 onwards, the SC will have a permanent five-judge bench. As per earlier practice, a two-judge bench, if it found an important question of law in a case, referred the issue to a three-judge bench, which referred certain select important cases for adjudication by a Constitution bench.

The CJI then used to weigh pendency of cases, engagement of judges in other important cases which are at a stage of being partly heard and then select five judges who could take up Constitution bench matters without disturbing the rate of disposal. Over last three decades, setting up of five-judge benches has been a challenging task for successive CJIs, given the exponential increase in filing of cases, triggered by numerous SC decisions expanding the writ jurisdiction to create the instrument of PIL and widening the span of fundamental rights.

As head of collegium, CJI appointed 14 SC judges

The SC also has 164 matters referred by two-judge benches to three-judge benches. CJI Ranjan Gogoi has decided to set up five permanent three-judge benches to take up these long pending 164 cases. Till now, only one or two threejudge benches functioned daily. But, with routine workload assigned to these benches, it prevented them from devoting adequate time to hear detailed arguments in these cases.

PILs raising important questions of law, scams and human rights violations have been consuming significant judicial time making it difficult for successive CJIs to disengage judges from such issues and include them in Constitution benches, a process that would block five judges for a long period.

In the US and certain other countries, all the judges of the Supreme Court sit together and decide those petitions which are certified by the full court to be of constitutional importance. Nearly 90% of the cases filed in US SC are rejected at the threshold and never heard by the court.

CJI Gogoi, as head of the collegium, would be credited for appointing a record 14 judges to the SC. During his tenure as CJI, the SC twice achieved its full strength—of 31 judges in May this year and again of 34 judges now. With four new judges scheduled to take oath on Monday, the CJI worked out a scheme by which SC would truly discharge its duties as a constitutional court with a permanent fivejudge bench.

There are 37 matters pending for adjudication by Constitution bench. The Ayodhya issue had been gathering dust since 2010 and CJI Gogoi decided to take it up despite the option of keeping pending a case that is termed as most important in judicial and national history. Even during the hearing of the Ayodhya issue, the CJI had to squeeze out an hour daily to ensure that chambers for the new judges got ready prior to them taking oath to ensure that a full strength SC functioned smoothly. With the setting up of a permanent five-judge Constitution bench and five three-judge benches, as many as 20 of 34 benches would be engaged in adjudicating constitutional questions and important matters.