Why in news?  With recent supreme court judgment regarding demonetisation comes under criticism, as it questions our blind acceptance of numerical majorities in judicial decision-making.

Highlights

• The minority judgment by Justice Nagarathna is being hailed for its challenge to the RBI’s institutional acquiescence to the Central government.

What is judicial majoritarianism?

• Numerical majorities are of particular importance to cases which involve a substantial interpretation of constitutional provisions.
• In such cases, Constitutional Benches, consisting of five or more judges, are set up in consonance with Article 145(3) of the Constitution.
• Such Benches usually consist of five, seven, nine, 11 or even 13 judges.
• This is done to facilitate decision-making by ensuring numerical majorities in judicial outcomes.
• The requirement for a majority consensus flows from Article 145(5), states that no judgment 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.

What is at the heart of the debate?

• ‘Judicial hunches’ may be an outcome of judges subjective experiences, outlook, and biases with regard to differences in judicial decisions
• In some circumstances, it is entirely possible that the majority may fall into either methodological fallacies and errors or be limited by their ‘judicial hunch’
• A meritorious minority decision, irrespective of the impeccability of its reasoning receives little weightage in terms of its outcomes
• 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.
• At a times, a system more weightage given to the vote of senior judges as  they have more experience or to the junior judges as they may represent popular opinion better.

Most popular examples on meritorious minority decision

• The dissenting opinion of Justice H.R. Khanna in D.M. Jabalpur v. Shivkant Shukla (1976) upholding the right to life and personal liberty even during situations of constitutional exceptionalism.
• Justice Subba Rao in the Kharak Singh v. State of U.P. (1962) case upholding the right to privacy that received the judicial stamp of approval in the S. Puttaswamy v. UOI (2017) case.