Speaking Differently on the Polyvocal Court

*Richa Maria and Sarthak Sahoo

Introduction

The Supreme Court of India (‘Court’) is routinely described as polyvocal. The notoriety of this description lies in the fact that no authority lesser than the Chief Justice has tried to disavow its veracity.  

‘Polyvocal’, literally understood as speaking in many voices, has been used to refer to a legal phenomenon wherein the  Court does not speak with the collegial authority of larger benches dealing with critical legal questions and consequently coming to compromises, but rather multiple small benches, each speaking severally from each other.

It has been argued in scholarly literature, that this shift that occurred in the Court with the onset of the 2000s has meant a decline in the Court’s ability to hold tight its jurisprudence and effectiveness. Specifically, two normative legal concerns can be culled out from existing literature against the Court’s polyvocality. 

First, that polyvocality has led to what Gautam Bhatia calls, ‘institutional incoherence and contradictory jurisprudence’.These refer to two distinct but concatenated issues. Institutional incoherence simply refers to the fact that many parts of the institution, i.e. the sub-courts of the Court, do not speak in one voice and do not say the same thing, which leads to contradictory jurisprudence.  The law decided by a larger bench is often ignored by smaller benches. Benches often ignore precedent by a co-ordinate bench, thereby developing contrary jurisprudence on the same matter.

Second, that polyvocality has led to constitutional legerdemain in relation to Article 145 of the Constitution. This article compels the court to hear ‘substantial questions of law’ with a minimum coram of five judges. It is argued that polyvocality renders the constitutionally mandatory rule flouted, as small benches take on substantial questions instead.

In our view, neither of these arguments is sustainable. Instead, we argue that the woes of institutional incoherence and contradictory jurisprudence are not a consequence of polyvocality, but allude to poor judicial discipline in India in general – and that a polyvocal court and a disciplined court are not mutually exclusive. Secondly, we argue that Article 145 is not breached by divesting substantial questions to smaller benches. Instead, this is a natural and valid consequence of the Court’s mature jurisprudence. Lastly, we argue that the polyvocality of the Court, if done right, can potentially reduce the contradictory jurisprudence plaguing it. 

Historical Context

To begin with, it is important to understand the historical emergence of polyvocality in India. Chintan Chandrachud lays out three phases of the Supreme Court’s thinking on constitutional interpretation. The first, textualism, maintained strict fidelity to the constitutional text. The second, eclecticism, ensured a cohesive understanding of constitutional rights.  The third phase of Panchayati eclecticism saw a shift insofar as the desire for a coherent philosophy of interpretation dissipated, and gave way to an eclecticism which showed the different shades of thought that judges adopted regarding the same issues. It is this phase that is relevant for our purposes. 

It occurred because the self-perception of the Court turned far more result-oriented, wherein it would adopt an interpretative lens that would allow it to reach the most fair and just decision. However, such eclecticism could only thrive in an environment where judges had greater autonomy and lesser need to compromise. This is where the ‘panchayati’ prefix came in. 

The Court started to prefer to sit in sub-courts of two judges or so. This would allow for a quick dispensation of justice based on the judges’ philosophy of being flexible enough to render what they deemed to be the correct result. This remains the position today. Any critical analysis of the Court’s polyvocality must appreciate this context. 

More Judges, More Benches, Merry Voices?

First, we may turn to questions of institutional incoherence and contradictory jurisprudence. Much like polyvocality, the factual truth of these two phenomena is well documented. It is indeed true that judges in India are consistent in their inconsistencies with the established jurisprudence.

Evidence on this point is overwhelming. As part of their empirical project, Aparna Chandra, William Hubbard, &  Sital Kalantry have identified fifty-six (56) instances of division benches (two judges) of the Court ‘overruling’ binding precedent. (1) This made up almost 48% of the studied dataset. On the qualitative end, Shrutanjaya Bharadwaj & Ayush Baheti further provide seven distinct examples of significant judicial decisions which were obtained by such contradictory jurisprudence. (2)

There can be no understating of the dangerous nature of such blatant ignorance of precedent. Bharadwaj & Baheti have further recognised how smaller benches use a motley of strategies to achieve their desired result inconsistent with larger bench holdings, such as neglecting to mention them, distinguishing them on superficial grounds, or declaring the binding judgment as contrary to a larger bench themselves. (3) It is undeniably true that, like great men on a battlefield, the best of our judgments have been built on the corpses of many protesting precedents.

However, this is scarcely an argument against polyvocality. This is because the aforementioned conduct betrays a lack of judicial discipline and rules-based judging, as opposed to the polyvocal nature of the Court. 

Even if we were to decrease the number of judges at the Supreme Court, or the fact that they sit in smaller panels, polyvocality would continue. Judges would continue to operate similarly, fashioning distinctions and jurisprudential outliers even when common facts arise. Therefore, in principle, polyvocality is not the inherent reason for the contradictory jurisprudence of the Court. 

Admittedly, having a high number of judges increases the probability of polyvocality. The objection is, that if we had fewer judges, we would have fewer contradictions. However, this modified criticism admits of a difference in degree and not kind. Less polyvocality is certainly better than more polyvocality. Nonetheless, since it is not the sole causative variable, it cannot be subject to mutation without there not being a significant cost/benefit consequence for the judiciary. 

This is not borne out to be the case either. The judicial branch, including the Chief Justice, as well as the Law Commission of India, have long been hawking to increase the number of judges in India. This is due to the low judges-to-population ratio (21 for every million) compared to the Commission’s desiderata (50 for every million). Therefore, reducing or maintaining the status quo on the strength of judges in such Courts, would perhaps marginally reduce institutional incoherence, but would seriously hamper effective justice delivery at the large scale.  

In a nutshell, polyvocality lacks the much-needed causative capacity over contradictory jurisprudence. Logically speaking, this problem is a fait accompli of any Court that does not sit en banc. Judicial differences between judges exist and manifest themselves in their opinions irrespective of the proportion of the bench strength or the number of judges in the court. 

Of course, having more sub-courts makes these errors more probable and frequent. However, the contradictions in jurisprudence do not emerge because of the polyvocal nature of the Court. It is rather the nature and conduct of the judges that occupy the Court which determines the jurisprudence’s coherence.  The solution to this problem, therefore, lies beyond any structural opposition to polyvocality.

Questions about Substantiality

The second objection concerns the constitutional requirement for substantial questions of law. Article 145 of the Constitution, states in sub-clause (3) that whenever any substantial question relating to the interpretation of the Constitution arises, a bench of no less than five judges shall adorn it. 

The conventional argument goes thus: with emerging polyvocality, five judges' benches no longer hear substantial questions of law. It is now sub-courts that do this. This is constitutionally impermissible. We argue that the shift to polyvocality simply means the standards of a substantial question of law have changed, given the developed jurisprudence and judicial priorities of the institution.

Take, for example, questions relating to reservations. Given the constitutional scheme and the state of jurisprudence at the inception of the constitution, every facet of such a legislative move would be constitutionally ambiguous. However, since then, the court has had a colourful history of opinions on the matter.

Today, the Court has traversed extremes to reach strong conclusions about reservations and their modalities. For example, in MR Balaji v. State of Mysore, the 50% limit on the available seats was established. (4) Even exceptions to this rule of an ‘arbitrary’ figure, were put to rest by the nine-judge bench in Indra Sawhney v. Union of India, upholding the sanctity of the 50% rule unless otherwise ‘extraordinary circumstances’ exist. (5) Similarly, on the temporal end, various benches have observed time-base limits on such action. See Trivedi J. in Janhit Abhiyan v. Union of India 2023 5 SCC 1. (6)

Therefore, the idea that every minor facet of reservation and its technicalities must be subject to a constitution bench is itself myopic. There are volumes of the Court’s jurisprudence which are instructive enough to allow judges to engage in routine interpretivism and reach decisions as to how a particular case is decided. The questions relating to a minor facet of reservation, therefore, are simply not substantial enough to warrant the docket of five robes iteratively. What was substantial in the 1950s is not so today.

The case laws relating to substantiality under Article 145 bear this out. In practice, only abstract legal questions of significant constitutional interpretation or complex legal principles necessitating authoritative adjudication reach constitution benches. Usually, individual cases that depend on that legal question – and one assumes there are many such hinging on them, given that landmark judgments serve as governing law for related disputes – are sent back to smaller benches that do not bear the constitutional character to be decided according to the law set by them. This is precisely what happens with the polyvocal court. For example, in L. Chandra Kumar v. Union of India, the constitution bench held that the powers of High Courts to judicially review administrative actions are inherent and could not be excluded. (7) After that, cases related to administrative decisions were sent back to smaller benches for adherence to this principle. (8) This decentralisation is crucial to the appropriate application of the law.

The Court in State of J&K v. Thakur Ganga Singh, has held that the concept of substantiality is bounded by its novelty. (9) If the law on a matter is established or settled, or even been effectively decided, then there is no need for a constitution bench. (10) Indeed, in Ganga Singh, the construction of Article 14 was not in dispute, and merely its application to the factum was under question. 

It is but a logical idea that over time, the jurisprudence of the Court has seen enough development that erstwhile substantial questions of law do not remain the same. Similarly, in T.M. Krishnaswami Pillai v. Governor General in Council, the Federal Court had held that when a controlling precedent held field on a question of law, it would not qualify as a substantial question. (11) A difference of opinion is necessary for the same. (12)

Indeed, to ensure legal consistency, a pragmatic and not dogmatic conception of substantial questions is necessary. This is because legal consistency warrants Article 145 to be applied consistently, not that its interpretation be consistent. That would defeat the dynamic nature of the Constitution itself, which will change its norms and parameters in line with the needs of the day and the force of the law. Beyond reasons of consistency, this rule is also crucial to the judicial economy and proper utilisation of the resources of the judicial branch. Nick Robinson has noted the advantages of subpanels along the same line, allowing results-based adjudication and avoiding ideological bottlenecks in dealing with appeals.

Therefore, the objection to polyvocality on the grounds of unconstitutionality or constitutional legerdemain does not stand, at least in this formulation.

Conclusion 

To provide what we believe is the appropriate position on polyvocality is that it is simply a descriptive phenomenon with neither principled nor practical predisposition towards contradictory jurisprudence. To the limited extent that judicial strength is to blame for this, it can only be reversed with massive losses to justice delivery in the future. Additionally, neither do the sub-panels of the Court in any way impinge on the mandate of Article 145. On the contrary, for proper implementation of Article 145, such sub-panels would, in turn, be necessary for a high-volume docket like India.

Richa Maria and Sarthak Sahoo are 3rd year law students at the Rajiv Gandhi National University of Law, Punjab.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.

Endnotes

1. Aparna Chandra, Willian HJ Hubbard, and Sital Kalantry, ‘The Supreme Court of India: An Empirical Overview of the Institution’ (2018) Public Law and Legal Theory Working Papers No 660, 23 <https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2273&context=public_law_and_legal_theory> accessed 26 November 2024.

2. Shrutanjaya Bhardwaj and Ayush Baheti, ‘Precedent, Stare Decisis and the Larger Bench Rule: Judicial Indiscipline at the Indian Supreme Court’ (2021) 6(1) Indian Law Review <https://doi.org/10.1080/24730580.2021.1941688> accessed 26 November 2024.

3. Id.

4. MR Balaji v State of Mysore 1963 SC 649.

5. Indra Sawhney v Union of India 1992 Supp (3) SCC 217 [182].

6. Janhit Abhiyan v Union of India 2023 5 SCC 1 [221].

7. L Chandra Kumar v Union of India 1997 3 SCC 261.

8. Id. at [100].

9. J&K v Thakur Ganga Singh 1959 SCC OnLine SC 116 [8].

10. Id.

11. TM Krishnaswami Pillai v Governor General in Council 1947 SCC OnLine FC 12 [3].

12. MP Jain, Indian Constitutional Law (8th edn, LexisNexis 2018) 225.