In the paper “Interpreting the Constitution: Indian Supreme Court Constitution Benches Since Independence“, Robinson et al. examined all Constitution bench decisions from independence through the end of 2009 and found that in any given vote on a constitution bench, there has been about a 5.2% chance a judge will dissent. However, if it is the Chief Justice who is voting, that chance decreases to 0.8%.
This figure is especially impressive since it was also found that the CJI disproportionately sits on Constitution bench cases.
This is supported by George Gadbois’ study on “Indian Judicial Behaviour” which indicated that the Chief Justice’s power to assign cases to benches can and does influence outcomes of cases.
Gadbois speaks of a time when he met former CJI, Justice Subba Rao, after his retirement. He recalls that the judge, who was notorious for dissenting when he was a judge, was never in dissent after he became CJI. When they met, Justice Rao supposedly admitted to Gadbois that that many Chief Justices strategically assigned benches in order to impact outcomes.
In the study by Robinson et al. mentioned above, they found that between independence and 2009, the CJI had been in dissent only 10 times in constitution bench cases.
Recently, in the book Court on Trial, the authors analysed constitution bench decisions from 2009 to 2016 and found that the CJI was never once in dissent.
We went through the constitution bench decisions from 2010 to the present day (filtered on the supreme court website) and found that the CJI was in the dissenting minority only thrice.
This means that the CJI has dissented in only 13 constitution bench cases in the 73-years history of the Supreme Court of India.
CJI Chandrachud said as much while at speaking at the 3rd Comparative Constitutional Law discussion co-hosted by Society for Democratic Rights (SDR), New Delhi and Georgetown University Law Center, Washington DC. He said this in the context of the recent judgment in the same-sex marriage case in which he found himself in the minority.
He said that he stands by his dissent and added, “sometimes it is a vote of the conscience and vote of the constitution“.
Below are the thirteen instances in which the CJI was part of the dissenting judgments.
Source: Barandbench
