A two-judge Supreme Court bench, comprising Justice SC Sharma and Justice Datta, has requested the Chief Justice of India to explore the possibility of setting up a permanent five-judge Constitutional Bench to deal with questions involving interpretation of the Constitution.
Why this matters
Constitutional questions currently require bench formation: Under Article 145(3), cases involving a “substantial question of law as to the interpretation of the Constitution” must be heard by at least five judges.Such benches are constituted by the Chief Justice of India as required. Currently, there are 22 five-judge matters with 175 tagged matters pending in court.A permanent bench could make the process more predictable. Instead of repeatedly constituting a five-judge bench whenever a major constitutional question arises, a standing bench could hear such matters more continuously.It could also speed up constitutional litigation. Constitution Bench cases can remain pending for long periods because judges have multiple rosters and cases. A dedicated bench could potentially create greater continuity and reduce delays.
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A permanent bench could also bring greater consistency as the same group of judges will be dealing regularly with constitutional questions, which could develop continuity in constitutional jurisprudence, rather than different combinations of judges being assembled for different cases.It could also increase the importance of the CJI’s roster decisions. The CJI is the master of the roster and decides which judges sit on particular benches. A permanent five-judge bench would therefore be a significant change in how the court allocates its most important constitutional cases.Constitution Benches decide some of the country’s most consequential questions, including the limits of Parliament’s power, fundamental rights, federalism, separation of powers and challenges to constitutional amendments.The Supreme Court has used Constitution Benches extensively in recent years; for example, 16 Constitution Bench judgments were delivered during former CJI D.Y. Chandrachud’s tenure.
