Deciding how many judges should decide: The question of constitution benches at the Indian Supreme Court

Abstract The Indian Supreme Court hears thousands of cases a year, usually deciding matters in benches of two or three judges. However, under the Indian Constitution a bench of at least five judges is required to hear a “substantial question of law as to the interpretation of the Constitution.” In practice, the Court has constituted relatively few of these larger benches in recent years, raising concerns that the institution has prioritized clearing its notorious backlog over its duties of constitutional interpretation. This article claims the issue of supreme court bench size has received insufficient attention. In India, the Constituent Assembly had a broad, but underdeveloped, understanding of when constitution benches would be constituted. Since then, Indian Supreme Court jurisprudence on the topic has often been contradictory and incomplete. Yet, whether or not a supreme court constitutes a larger bench can have significant implications. This article argues that since larger benches reduce the voice of particular judges, they can improve the consistency, quality, and legitimacy of judgments. However, larger benches take more judicial resources and can also have other, less predictable, impacts. For example, smaller benches likely fostered the development of public interest litigation in India in a way larger benches would not have. The article finds that at least three types of institutional factors determine when larger benches are constituted. It argues the Indian Supreme Court should pursue reforms related to each.