Bench

Introduction

A “bench” denotes the number and constitution of judges hearing a matter. In India, bench composition is not a neutral administrative fact: it shapes admissibility, precedential weight, the procedure for raising substantial questions of law, and—frequently—the ultimate outcome. Understanding how benches are constituted, when a larger bench is required, and how to secure favourable bench composition are practical skills every litigator and judge must master.

Core Legal Framework

• Constitution of India
• Article 141: “Law declared by the Supreme Court shall be binding on all courts within the territory of India.” The binding force of a Supreme Court decision is central to disputes about conflicting precedents and the need for larger benches.
• Article 145: Empowers the Supreme Court to make rules for practice and procedure and underpins the administrative arrangement (including roster and bench constitution) by which the Court functions. Article 145(3) is conventionally read to require that substantial questions of constitutional law, or any decision that may overrule a previous Supreme Court precedent, be considered by a “Constitution Bench” (i.e., a bench of at least five judges).
• Supreme Court Rules and High Court Rules
• The Supreme Court Rules (and individual High Court rules) govern roster arrangement, listing, references to larger benches, and procedural modalities for applications to constitute benches. The Chief Justice (of India for the Supreme Court; respective Chief Justices for High Courts) exercises administrative control over the Constitution’s judicial work-distribution.
• Judicial Doctrine
• Doctrine of precedent: a decision of a larger bench generally prevails over conflicting holdings of a smaller bench. This principle drives the practice of referring questions of law to a larger bench where there is divergence.

(Quotations of Articles: the operative content of Articles 141 and 145 are decisive in bench-related practice; practitioners should refer to the Constitution text and the current Supreme Court Rules for precise language and procedural prescriptions.)

Practical Application and Nuances

How “bench” matters in day-to-day advocacy and judicial functioning:

• Types of benches
• Single-judge bench: Common in High Courts for writs, interlocutory applications, and routine matters. Decisions by single judges bind subordinate courts but may be overruled by division benches or larger benches.
• Division bench: Typically two judges (occasionally three). Most appellate work in High Courts is by division benches. In the Supreme Court, two-judge benches are the day-to-day norm for civil/criminal appeals and special leave petitions.
• Constitution Bench (five judges or more): Required for substantial questions of constitutional law, resolving conflicts of Supreme Court precedents, or when the law needs to be authoritatively settled (e.g., overruling an earlier decision). Famous examples: Kesavananda Bharati (13-judge bench); K.S. Puttaswamy (9-judge bench).
• When to seek a larger bench
• Conflicting High Court decisions: If High Courts are split on a legal question, a party should urge the Supreme Court for a Constitution Bench reference on grounds that the question affects uniformity of law.
• Conflicting Supreme Court precedents: If there are two inconsistent Supreme Court judgments, a litigant should apply for constitution of a larger bench to resolve the conflict. The usual route is an application to the registry or an interlocutory application before the court/seeking urgent listing before the Chief Justice.
• Substantial question of constitutional law: Where an issue involves interpretation of Constitutional provisions (e.g., fundamental rights, federal structure), the Bench should be of five or more judges under Article 145 principles.
• How disputes about bench-strength arise in practice
• Roster/administrative control: The Chief Justice’s roster determines who sits where. Tactical issues—like avoiding a particular bench perceived as adverse—occasionally create friction. A practitioner must be realistic: administrative allocation is not a judicial ruling but a matter of institutional practice.
• Precedential weight and overruling: If trying to evade or overturn an adverse precedent, argue for a constitution bench by demonstrating (a) direct conflict among earlier decisions; (b) wider public importance; and (c) the necessity to lay down a uniform rule.
• Concrete examples
• Civil practice: Party A loses before a single judge on an important commercial law point; two High Courts reach opposite conclusions on the same contract principle. Party A/appellant should (i) identify the split, (ii) file an SLP indicating the conflict and pray for a larger bench, and (iii) file an application for reference to a Constitution Bench with a short note highlighting the conflict and the consequences of divergent jurisprudence on commerce/industry.
• Criminal practice: Where differing benches of the Supreme Court have issued inconsistent tests for admissibility of certain confessions or for grant/refusal of bail, an advocate for the accused can apply for constitution of a three- or five-judge bench by showing inconsistency and the risk of miscarriage of justice if the law remains unsettled.
• Tactical procedural moves to secure a larger bench
• File a focused interlocutory application before the bench seized of the matter pointing to conflicting decisions and asking the court to refer the point to a larger bench.
• Serve a concise “bench-note” (chronology of conflict, legal question, immediate fallout) to the registry/CJI to ensure proper listing.
• Where time is of essence (e.g., interim liberty interests), seek urgent administrative listing before the CJI with a compressed note and clear prayers.

Landmark Judgments

• Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
• Bench strength: 13 judges.
• Principle: Laid down the “basic structure” doctrine and showcased how matters of constitutional magnitude are reserved for large Constitution Benches. The case is the archetype for why bench-strength matters: a large bench was necessary to settle competing views on Parliament’s amending power.
• K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
• Bench strength: 9 judges.
• Principle: Fundamental right to privacy declared: the use of a large bench to settle a core constitutional principle underscores the Supreme Court’s practice that issues involving core fundamental rights and interpretative finality warrant larger benches.
• Practical import of these decisions
• Both decisions show (a) that complex constitutional questions demand larger benches for authoritative determination, and (b) that only such benches can overrule or harmonise prior decisions for the purpose of Article 141.

Strategic Considerations for Practitioners

• When to push for a larger bench
• Do so when the decision will affect a broad class of litigants, there is an explicit conflict in precedent, or when a fundamental constitutional question is at stake.
• Do not seek a larger bench merely because you dislike an earlier judgment. Courts are cautious with such requests and require clear demonstration of conflict or constitutional importance.
• How to frame your request effectively
• Be precise: State the specific question(s) needing reconsideration and cite the conflicting authoritative decisions, preferably with exact paragraph references and extracts of ratios that conflict.
• Emphasise stakes: Explain the practical consequences—do thousands of litigants depend on the issue? Is there risk of inconsistent administration of law?
• Provide a chronology: A compact table of decisions showing dates, benches, and points of conflict helps the registry/CJI.
• Bench composition and choice of forum
• Know the roster: Research the usual benches and their subject-matter inclination (e.g., certain benches take up constitutional questions more readily). Use this knowledge to time applications and to craft submissions appropriately.
• Court of first hearing: For appellate work, decide where to raise bench-strength issues—sometimes the High Court or a division bench can refer to a larger bench at the High Court level before escalation.
• Common pitfalls
• Overreach: Broad, unfocussed applications seeking a “larger bench” without showing concrete legal conflict are often rejected and can prejudice future listing.
• Delay: Waiting too long to seek reference—especially once adverse precedent has crystallised—reduces chances of success.
• Tactical misrepresentation: Inflating the importance of the question without supporting authorities undermines credibility.
• Neglecting interim relief: Do not rely solely on the promise of a larger bench; simultaneously seek appropriate interim measures (stay, injunction, bail) to protect client interests while the constitutional question is sorted.
• Drafting checklist for an application to constitute a larger/Constitution Bench
• Short statement of facts and procedural posture.
• Precise legal question(s) proposed for reference.
• List of authorities constituting conflict (dates, benches, paragraph citations).
• Short argument on why the question is “substantial” and affects uniformity of law/public interest.
• Prayer(s): constitution of bench of specified strength; urgent listing; interim relief if necessary.
• Annexures: certified copies of the conflicting judgments, relevant statutes, earlier orders of the court.

Conclusion

“Bench” is more than a headcount. Bench composition is an essential tool of judicial architecture: it governs the authoritative development of law, resolves conflicts of precedent, and shapes the litigation trajectory. For practitioners, mastery of how to secure an appropriate bench—by precise drafting, strategic urgency, and by demonstrating true conflict or constitutional gravity—is indispensable. Think strategically: identify the legal question crisply, map the conflicting authorities, and seek an appropriate bench while protecting your client’s immediate interest by interim orders. The bench you get often determines the law you can create or overturn.