Context: 

Recent majority judgment of the Supreme Court on demonetisation came under criticism, and minority judgment by Justice Nagarathna is being praised for its challenge to the RBI’s institutional acquiescence to the Central government. This questions the blind acceptance of numerical majorities in judicial decision making.

About Judicial Majoritarianism:

• Division Benches of higher judiciary consist of two judges.
• Numerical majorities of the judicial bench 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. 

What is the debate about?

•  All judges on a particular Bench give their rulings on the same set of  arguments and written submissions.
• Any differences in judicial decisions can be attributed to a difference in
  • the methodology adopted and the logic applied by the judge
  • their own ‘judicial hunches’ which may be an outcome of their subjective experiences, outlook, and biases.
• It is entirely possible that the majority may fall into either methodological fallacies and errors or be limited by their ‘judicial hunch’ respectively.
• In such situations, a meritorious minority decision, irrespective of the impeccability of its reasoning, receives little weightage in terms of its outcomes.

Examples of judicial dissent:

• The dissenting opinion of Justice H.R. Khanna in A.D.M. Jabalpur v. Shivkant Shukla (1976) upholding the right to life and personal liberty even during emergency
• The dissenting opinion of Justice Subba Rao in the Kharak Singh v. State of U.P. (1962) case upholding the right to privacy which received the judicial stamp of approval in the K.S. Puttaswamy v. UOI (2017) case. 

Conclusion:

• There should be a critical discourse on judicial majoritarianism to bridge one of the most fundamental gaps in our knowledge regarding the functioning of our Supreme Court.

News Source: The Hindu

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