What is a Constitution Bench?

By Dhruva Vig


A bench is a method of organisation of judges of a Court, which is managed and regulated by the Registry in the Court, along with the Chief Justice, to organise the judges into several “benches“, i.e., groups of 2 or more judges to hear particular matters.

A common takeaway which may be drawn from the litany of recent landmark judgements is that these happen to have brought a new narrative to the Indian legal demographic, all while being relatively significant constitutional matters.

There has been a direct contradiction to the provisions of Article 145(3)[1] of the Constitution of India, as such matters have been decided by Supreme Court benches of two or three judges, as opposed to the minimum requirement of five in the matters before the Supreme Court of India.

The very issue of a bench structure shapes a notable part of the literature on adjudication of cases, which shall be in direct consonance with the outcome of such cases.

The Supreme Court initially began its functioning with a small roster of judges, to the tune of eight specifically, with the inclusion of Chief Justice of India.

The roster count gradually increased with the rise in litigation, pendency of cases and a need to cater to the wide array of judicial matters. It has now grown to a total of thirty-three judges in accordance with the Supreme Court (Number of Judges) (Amendment) Act, 2019.

To entertain such matters before the Court, it is common practice that the Court holds benches, comprising of 2-3 Judges each, in order to tackle the ever-growing need to pronounce more and more judgements with the increasing count of cases.

However, such practice also begs the question as to the quality of judgements so pronounced, as the same have been under the scrutiny of many over the recent years.

With the increase in workload, the Courts have also adopted the practice of incorporating more judges so as to manage such skyrocketing volume of cases, and so did the Supreme Court’s practice of holding 2-3 judges per bench.

Another major development in such pursuance of combatting with the increasing workload, would the recent move to exhume Article 224A, which will allow the Courts to incorporate retired judges on its roster.

The historical record for the need that arose for the appointment of 5 judges per bench over questions of constitutional importance, can be traced back to the deliberations and arguments that were made at the Drafting Committee in October 1948, when the committee had made recommendations to the proviso of then Article 121(2) [currently Article 145(3)] that, “it shall be the duty of every judge to sit for the said purposes“, where the said purpose herein referring to “deciding any case involving a substantial question of law as to the interpretation of this Constitution“.

Justice Felix Frankfurter was in agreement with the view, where the Supreme Court of the United States had advised Sir B.N. Rau that the Court should sit en banc so as to lend finality and authoritativeness to its decisions.

Legal Provisions

The Supreme Court (Number of Judges) Act, 1956 lays down the provisions for the purposes of providing for an increase in the number of Judges of the Supreme Court from time to time.

Article 141 talks about “Law declared by Supreme Court to be binding on all courts.”, where the law which has been declared by the Supreme Court, shall be binding on all courts within the territory of India.

Article 145 talks about the “Rules of Court, etc”, where under clause (2) & (3), it has been provided that
(2) Subject to the [provisions of clause (3)], rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts.

(3) The minimum number] of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five.

These provisions shall be deemed to be applicable, provided that in circumstances where the Court which is hearing an appeal under any of the provisions of this Chapter, other than Article 132, consists of less than five Judges, and in the course of the hearing of such appeal, the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution.

The determination of which is necessary for the disposal of the appeal, such Court shall in such circumstances refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question, and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.

Article 216 talks about the provision of “Constitution of High Courts”, where every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint.

Article 214 talks about the provision of incorporating “High Courts for States”, where there shall be a High Court for each State across the territory of India.

Case Laws

S.P. Gupta v. Union of India[2]

Fixing the strength of Judges in each High Court is a purely executive function left to the discretion of the Government of India and there are no judicially manageable standards for the purpose of controlling or guiding the exercise of that discretion by the President.

Kantaru Rajeevaru (Right to Religion, In re-9 J.) v. Indian Young Lawyers Assn.[3]

A Court can refer question(s) of law to a larger Bench in instances of a review petition.

Beghar Foundation v. K.S. Puttaswamy (Aadhaar Review-5 J.)[4]

Change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. Review petition against Supreme Court decision on a particular issue, filed during pendency of reference of question of law pertaining to that same issue to a larger Bench is not a ground for disposal of review petition only after that decision.

Shah Faesal v. Union of India[5]

The scope of overruling of judgments of Supreme Court was noted in this case. It was held that earlier precedent can be overruled by a larger Bench if: (i) it is manifestly wrong, or (ii) injurious to public interest, or (iii) there is a social, constitutional or economic change necessitating it.

It was also held that a coordinate Bench of same strength cannot take a contrary view and cannot overrule the decision of earlier coordinate Bench. No doubt it can distinguish judgment of such earlier Bench, or refer the matter to a larger Bench for reconsideration in case of disagreement with the view of such earlier Bench.

It was also held that the rule of per incuriam literally means judgment passed in ignorance of a relevant statute or binding precedent; or that it is not possible to reconcile the judgment with a previous binding ruling of coordinate or larger Bench. Per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta.

Prithi Pal Singh Bedi v. Union of India[6]

The Obiter Dicta in this case was that when a question not specifically arising for decision but discussed and observations have been made, such observations even though obiter entitled to respect by succeeding bench of the Supreme Court.

CIT v. Saheli Leasing & Industries Ltd.[7]

In order to enable the Court to refer any case to a larger Bench for reconsideration, it is necessary to point out that a particular provision of law having a bearing over the issue involved was not taken note of or there is an error apparent on its face or that a particular earlier decision was not noticed, which has a direct bearing or has taken a contrary view.

State of Assam v. Ripa Sarma[8]

It was held that a Judgment which is rendered in ignorance of earlier judgments of Benches of co-equal strength, would render the same per incuriam. Such judgment cannot be elevated to the status of precedent.

State of U.P. v. Achal Singh[9]

When can reference to larger Bench be made? The reliance on Supreme Court decisions governing different statutory rules does not require reference to larger Bench since basis of those decisions is entirely different. Moreover, it is not question of unsettling law but more of its application.

Kamini Jaiswal v. Union of India[10]

The issue of Constitution of Benches and allocation of cases was taken up in this case. The administrative prerogative of Chief Justice of India in this regard, clarified. Chief Justice is the Master of Roster and he alone has the prerogative to constitute Benches and allocate cases.

Said prerogative could not have been exercised by a two-Judge Bench giving directions for constitution of a Bench of five senior most Judges of Supreme Court to decide present writ petition. Even if imputations are hurled at the Chief Justice, said prerogative would not hinge on whim of the litigant and Chief Justice can constitute a Bench to decide the matter.

By doing so, the Chief Justice does not become a Judge in his own cause. Said prerogative is also given by Supreme Court Rules, 2013. It is contempt to imply that Chief Justice would assign matter to a Bench which would not pass an adverse order against him. Conduct of petitioner is wholly unethical and nothing but forum hunting.

For the said unwarranted conduct, petitioner is taking refuge under propositions of law that justice should not only be done but seem to have been done. Such conduct is deprecated.

Shanti Bhushan v. Supreme Court of India[11]

The role of Chief Justice as Master of Roster was discussed. The Judiciary discharges function of administration of justice in the process of judicial review. Foundation of judicial review is faith of people. Judicial performance gains public faith and trust when guided by independence, impartiality, fairness, competence and moral courage.

Chief Justice acting as Master of Roster takes into consideration various relevant factors so as to eliminate element of arbitrariness. After assigning a matter to particular Bench role of Chief Justice ends there and assignee Bench acquires complete dominion over the case.

Kantaru Rajeevaru (Sabarimala Temple Review-5 J.) v. Indian Young Lawyers Assn.[12]

When there is more than one petition pending in Supreme Court on same, similar or overlapping issues involving substantial questions of law re interpretation of the Constitution, they must be proceeded together and be decided by a larger Bench to instil public confidence and effectuate principle underlying Article 145 (3).

Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly[13]

When shall reference to Constitution Bench be made? The cardinal rule is to achieve judicial balance between crucial obligation to render justice and compelling necessity of avoiding prolongation of list. Any question of law of general importance arising incidentally, or any ancillary question of law having no significance to final outcome would not require reference.

Casual and cavalier reference should not be undertaken. Responsibility vests in Supreme Court not to indulge in excessive academic endeavours and to preserve precious judicial time.

Kantaru Rajeevaru (Right To Religion, In Re-9 J.) (2) v. Indian Young Lawyers Assn.[14]

This article is not applicable where reference to larger Bench is made by five Judge Bench.

Roma Sonkar v. M.P. State Public Service Commission[15]

When Division Bench by impugned judgment remitting matter to Single Judge for moulding relief, it was held to be improper.


Article 224A

Bench Structure and Constitutional Adjudication

The High Courts of India

Bench System in Indian Courts


  1. Article 145(3) 
  2. 1981 Supp SCC 87
  3. (2020) 3 SCC 52
  4. (2021) 3 SCC
  5. (2020) 4 SCC 1
  6. (1982) 3 SCC 140
  7. (2010) 6 SCC 384 : (2010) 2 SCC (Civ) 691
  8. (2013) 3 SCC 63 : (2013) 1 SCC (L&S) 474 : (2013) 2 SCC (Cri) 44 : (2013) 2 SCC (Civ) 13
  9. (2018) 17 SCC 578
  10. (2018) 1 SCC 156
  11. (2018) 8 SCC 396
  12. (2020) 2 SCC 1
  13. (2020) 2 SCC 595
  14. (2020) 9 SCC 121.
  15. (2018) 17 SCC 106

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