Is judicial majoritarianism justified?

Source: The post is based on an article “Is judicial majoritarianism justified?” published in The Hindu on 2^nd February 2023.

Syllabus: GS 2 – Governance

Relevance: Concerns associated with judicial majoritarianism

News: The article discusses judicial majoritarianism and issues surrounding it.

What is judicial majoritarianism?

Judicial majoritarianism refers to numerical majorities, i.e., number of judges supporting a judgment.

Cases in SC are usually heard either by Division Benches which consist of two judges or by Constitutional Benches which consist of five, seven, nine, 11 or even 13 judges.

Judicial majoritarianism deals with the Constitution divisions which involve a substantial interpretation of constitutional provisions. Judicial majoritarianism helps in the decision-making process easier.

The concept of majoritarianism comes from Article 145(5) of the Constitution which states that no judgment in such cases can be delivered except with the concurrence of a majority of the judges.

However, it also says that judges are free to deliver dissenting judgments or opinions.

What is the issue with Judicial majoritarianism?

Now the question comes that when all judicial decisions are based on the set rules and laws, then why is there is difference in opinion among judges.

Differences in judicial decisions can be because of differences in either the methodology adopted and the logic applied by the judges.

Since judgements are made on different methodology and logic, there are chances that those judges giving the majority may have fallen into error of methodologies or logics.

In such a scenario, judges who are dissenting may form a minority but their methodology applied may be correct and without errors compared to those who formed the majority.

However, those forming the minority get very little attention.

A great example is of the dissenting opinion of Justice H.R. Khanna in A.D.M. Jabalpur v. Shivkant Shukla (1976) upholding the right to life and personal liberty even during situations of constitutional exceptionalism.

Moreover, the rate of dissent itself is subjected to influences.

For example, the study found that the rate of dissent where the Chief Justice was a part of the Bench was lower than in those cases where the Chief Justice was not on the Bench.

Such instances highlight the concerns of the efficiency of the judgments and of the majoritarianism procedures adopted by the judiciary in deciding the case of national and constitutional importance.

What can be the way ahead?

The system proposed by Ronald Dworkin can be adopted as an alternative to judicial majoritarianism.

He proposed for a system which may either give more weightage to the vote of senior judges given that they have more experience or to the junior judges as they may represent popular opinion better.

However, such alternatives can only be explored when the rationale behind judicial majoritarianism is questioned.