Half-Yearly Five-Judge Constitution Bench Pendency | 2023

Constitution Benches of the Supreme Court which typically assemble in five, seven or nine-judge Benches, answer ‘substantial questions of law’ and interpret the Constitution. When the Court answers a question posed before a Constitution Bench, it offers clarity in a string of cases that turn on that question.

A Constitution Bench case often has many other cases dealing with similar issues tagged with it. For example, a 5-Judge Bench is hearing a case on whether the holder of a common driver’s licence could drive a transport vehicle. The case concerns the interpretation of the Motor Vehicles Act, 1988—specifically how the law meant to categorise Light and Transport motor vehicles. There are 72 cases ‘tagged’ to this leading case. Many of these cases are insurance claims which have been pending due to the lack of clarity on the key constitutional question. When the larger question is answered, all these tagged cases pending for years get clarity. 

In the first half of 2023 alone, Constitution Benches assembled 55 times and delivered 13 judgements. This may be the highest Constitution Bench activity the top Court has seen in a decade. With these 13 judgements, the Constitution Bench pendency saw a sharp dip.

Pendency of Five Judge Bench Cases in 2023

Figure 1 above shows the pendency of five-Judge Bench cases this year. The x-axis marks the months and the y-axis plots the number of pending cases in each month.

At the beginning of 2023, there were 43 five-judge Constitution Bench cases pending at the Supreme Court. This figure had remained unchanged since November 2022, when CJI Chandrachud assumed office of the Chief Justice of India. 

In January, the Court heard and decided the challenge to the Union’s demonetisation scheme, the case on public official’s freedom of speech and the petition seeking the revision of the euthanasia guidelines. When February began, five-Judge Constitution Bench pendency had fallen from 43 to 40. 

February saw judgements in cases such as the challenge to All India Bar exams and the reference of the challenge to the excommunication of members of the Dawoodi Bohra community to a larger Bench. Pendency was reduced by another four cases and fell to 36 as the month closed. 

Two Constitution Bench judgements were delivered in March. One where the Court refused additional compensation for the victims of the Bhopal Gas tragedy and one where it set up a committee for the appointment of Election Commission members. However, when March closed, the pendency of cases increased. This is because the Court referred new cases to 5-Judge Benches, including the plea for marriage equality to 5-Judge Constitution Benches. As April began, the pendency of 5-Judge bench cases increased to 38.

The Supreme Court delivered only one 5-judge Bench judgement in April. This judgement invalidated unstamped arbitration agreements.  At the beginning of May, the pendency remained unchanged at 38 cases. 

May is the star month in this graph, as it saw the highest Constitution Bench activity of the year with judgements in six cases. This list includes the Maharashtra Shiv Sena rift, the tussle between the Union and the NCT of Delhi over ‘services’ in the capital, upholding the practice of Jallikattu, the Supreme Court’s power to directly grant divorce and more. As the month closed, the pendency had fallen to 32 cases. 

The Court was on Summer Vacation in June and did not hear any Constitution Bench cases. When the Court resumed in July, there were 33 five-Judge Constitution Bench cases pending before the Court. This means, in the first half of 2023, the pendency of five-judge Constitution cases reduced by ten.

Why Do the Trends this Year Stand Out?

In the past, the top Court has seen a lack of Constitutional Bench activity. Infamously, during former Chief Justice N.V. Ramana’s tenure, no Constitution Bench cases were conducted at all. His successor Former CJI U.U. Lalit made vigorous efforts to revive Constitution Benches at the top Court in his 2.5-month tenure as CJI. A day before he assumed Office, he listed 25 cases that will be heard by Constitution Benches. He also promised that at least one Constitution Bench would be present throughout the year. 

That momentum appears to have progressed with new enthusiasm under the incumbent CJI D.Y. Chandrachud. At the time of his oath in November last year, the Court had 43 main 5-Judge Constitution Bench cases pending on its docket. Eight months into his term, this number stands at 33 cases. 

*Data collected as on July 24, 2023.