Abstract The Supreme Court of India adjudicates cases on the basis of majority rule: under Article 145(5) of the Constitution, judgments and opinions must be delivered with the concurrence of a majority of the judges hearing the case. Jeremy Waldron has termed this practice “judicial majoritarianism” in his essay “Five to Four: Why Do Bare Majorities Rule on Courts?” This article extends Waldron’s analysis to the Indian context and examines a practice that has received little sustained scrutiny. It argues that the acceptance of judicial majoritarianism in India rests largely on assumptions of obviousness rather than on articulated philosophical foundations. Engaging with defenses of judicial majoritarianism, the article critiques their application in light of the Supreme Court’s decision in the case of Trimurthi Fragrances v. NCT of Delhi. It contends that the Court’s reasoning exposes structural tensions in the doctrine’s epistemic, procedural, and normative justifications. The article concludes by calling for a more rigorous theoretical defense of judicial majoritarianism and seeks to initiate a broader discourse on the legitimacy of majority-based adjudication in India.
Kaushik et al. (Mon,) studied this question.