Is judicial majoritarianism justified?

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CategoryPolity

Last Updated03/02/2023

As the recent judgement of SC on demonetisation comes under criticism, the minority judgment by J. Nagarathna is being hailed for its challenge to the RBI’s institutional acquiescence to the Central government.
This questions our blind acceptance of numerical majorities in judicial decision-making.

Numerical majorities are important in cases involving substantial interpretation of constitutional provisions.
Constitutional Benches are set up with five or more judges to ensure numerical majorities.
No judgment can be delivered except with concurrence of a majority of the judges, but judges are free to deliver dissenting judgments.
Article 145(5): It states that no judgement in such cases can be delivered except with the concurrence of a majority of the judges but that judges are free to deliver dissenting judgments or opinions.

Jeremy Waldron: He questions why is it that the judges too have to resort to head counting in order to resolve disagreements amongst judges.
Differences in judicial decisions: These can be attributed to a difference in either the methodology adopted and the logic applied by the judges.
Judicial hunches: It may be an outcome of their subjective experiences, outlook, and biases.

Ronald Dworkin: He proffers a system which may either give more weightage to the vote of senior judges or to the junior judges as they may represent popular opinion better.
There is a need to identify and question the rationales which underlie head-counting in judicial decision-making.

A.D.M. Jabalpur v. Shivkant Shukla (1976): Upheld right to life and personal liberty even during situations of constitutional exceptionalism
Kharak Singh v. State of U.P. (1962) & K.S. Puttaswamy v. UOI (2017): Upheld the right to privacy

The absence of a critical discourse on judicial majoritarianism represents one of the most fundamental gaps in our knowledge regarding the functioning of our Supreme Court.
As pending Constitutional Bench matters are listed for hearing, we must reflect upon the arguments of judicial majoritarianism on the basis of which these cases are to be decided.