Judicial Majoritarianism

Context: 

Recent majority judgment of the Supreme Court on demonetisation came under criticism, and minority judgment is being praised for its challenge to the RBI’s institutional acquiescence to the Central government. 

About Judicial Majoritarianism:

• Judicial majoritarianism refers to the practice in Indian constitutional law where decisions made by Constitutional Benches of the Supreme Court require a majority consensus, as stated in Article 145(5) of the Constitution. 
• This means that a majority of the judges on the bench must agree on a decision in order to deliver a judgment. 
• This practice is accepted without much debate and aims to ensure consistency in decision-making by the Supreme Court.

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