Where are the Seven and Nine Judge Constitution Benches?

This year, the Supreme Court has been abuzz with Constitution Bench activity with 55 hearings and judgements in 13 cases. Constitution Benches typically comprise five, seven, or nine judges, and they play a pivotal role in answering significant legal questions and interpreting the Constitution. The pendency of Constitution Bench cases has also seen a drop of 10 cases since last year. 

This decrease in pendency is promising because the top Court has seen little to no Constitution Bench activity since Covid 19. In fact, during former CJI N.V. Ramana’s tenure (April 6, 2021- August 26, 2022), no Constitution Bench cases were heard. His successor CJI U.U. Lalit (August 27, 2022- November 8, 2022) adopted a militant approach to revive Constitution Bench activity at the Court; but his short tenure of 2.5 months put an early end to his grand plans to re-establish the top Court in its vital role as the Constitutional Court. Succeeding from Lalit, current CJI D.Y. Chandrachud too seems to have kept up the same enthusiasm for undertaking Constitution Bench activity.  

Even then, there is an anomaly—while there is a change in trajectory in the pendency of five-judge Bench cases which dropped by 10 cases compared to last year, the pendency of seven and nine-judge Bench cases remains stagnant. 

While there is no mandate on the Court to sit in seven, nine or larger Benches, cases before these Benches become crucial in answering questions that a five-judge Bench cannot.

Half-Yearly Trends (2023)

Figure 1 above shows the pendency activity for five, seven and nine-judge Bench cases. The x-axis represents the months and the y-axis the number of cases Bench-wise.

The blue line represents the five-judge Bench activity, the red line represents the seven-judge Bench activity and the orange line represents the nine-judge Bench cases. 

As seen in the graph, while five-judge Bench cases have seen a decrease in pendency numbers, the pendency of seven and nine-judge Bench cases remain constant at six and seven cases respectively. 

Cases pending before seven and nine-judge Benches involve substantial questions about the interpretation of the Constitution and the evolution of laws in the country. For instance, in Aligarh Muslim University v Naresh Agarwal, a seven-judge Bench of the Court will decide the parameters for granting ‘minority status’ to an educational institute. In Rojer Mathew v South Indian Bank Ltd. a seven-judge Bench will decide the constitutionality of Part XIV of the Finance Act, 2017 etc. 

Examples of cases pending before nine-judge Benches of the Court include the Sabarimala review petitions which raise significant questions about religious rights, personal freedoms and choice. In State of Uttar Pradesh v Jai Bir Singh a nine-judge Bench will reconsider its 1978 decision which gave a wide interpretation to the definition of 'industry' under the Industrial Disputes Act, 1947.

Why does this matter?

The Constitution of India does not mandate seven or nine-judge Benches. Article 145 says that to decide a ‘substantial question of law related to the interpretation of the Constitution’ or requiring the Supreme Court's advice under Article 143, where the President seeks clarification on a matter, a Bench must have a minimum of five judges. 

When the case at hand has many constitutional questions that even a five-judge Bench cannot answer adequately, a reference to a larger Bench becomes crucial. The interpretation of the Constitution by these Benches sets a precedent for not just other Courts in the country but also smaller Benches of the Supreme Court itself. 

For instance, in 2017, the last time a nine-judge Bench sat for K.S. Puttaswamy v Union of India, they recognised the right to privacy as a fundamental right. The Bench ruled that the right to privacy is intrinsic to an individual’s ability to exercise bodily autonomy. This precedent of the Court became crucial in many subsequent cases before the Court which involved questions about personal rights and liberty. Most recently, the petitioners in the pleas for marriage equality for LGBTQIA+ persons anchored their arguments on the fundamental right to privacy. 

The ‘basic structure doctrine’ established by the 13-judge Bench in Kesavananda Bharati v State of Kerala back in 1973 serves as a binding precedent for constitutional Bench cases to date. 

Why is There a Stagnation of Larger Bench Cases?

The reason behind the silence with seven and nine-judge Bench matters can only be speculated. Arguably, larger Benches pose a problem for the Supreme Court, which is currently burdened with a load of 69,776 cases because more judges are occupied with a single case. When a seven-judge sits, close to one-fourth, ie., 21% of the Court’s sanctioned strength of 34 judges will be occupied with deciding a single matter. This percentage is even higher for nine-judge Bench cases—26% of the judges will be occupied with one case. 

Even so, this apprehension may not always hold true. SCO has found that for the first time in five years, there is a decrease in the Court’s half-yearly pendency trends, despite significant Constitution Bench activity in 2023. If this year’s trends are any indication of the Court’s efficiency in listing cases, assigning them to smaller Benches and delivering comprehensive Orders that need no further appeals, the same will follow even when larger Benches sit.