Odd Benches, Clear Verdicts: A Call for Structural Reform in India’s Judiciary

Introduction

In the curious case of Ramesh Baghel v. State of Chhattisgarh¹, where a village panchayat decision barred a man from being buried in their own village, the Supreme Court came out with a split verdict. Justice S.C. Sharma, after meticulously analysing the facts of the case, noted that “public order” was not a “ruse” and directing the man be buried in a different village. In stark contrast, Justice B.V. Nagarathna held that this was a gross violation of fundamental rights, namely, Articles 14² and 15(1)³ and directed that the man be buried in his own private land in his village. However, the operative order — deviating from the regular practice of referring such split verdicts to a larger Bench — favoured Justice Sharma’s stance, leading to the man’s burial in a different village. If it were not for the operative order, the case would have been referred to a larger Bench delaying the matter further while the dead body would have been left in the mortuary for a few more weeks.

This begs the question, are split verdicts or to be specific, Benches with an even number of Judges a bane to an expedient justice system? This piece aims to argue through various case studies that even-numbered Benches are unnecessarily delaying swift delivery of justice and decisions. Further, a structural overhaul of the system of creating Benches would be proposed in order to remedy this pertinent issue.

Split verdicts: A procedural impasse to speedy justice

Split verdicts in India essentially happen when an equal number of Judges in even-numbered Benches pronouncing differing judgments, thereby no clear and definitive ruling. Generally, this takes place when the Judges’ interpretation of either law or facts is different. The usual course of action after a split verdict is to send the matter to a larger Bench with odd number of Judges. This results in a conclusive judgment as the opinion of the majority of Judges is tilted towards one side. The fundamental concern of the parties involved in these types of cases is the amount of time this process takes throughout. In India, legal processes travel at a snail’s pace⁴. It is already a huge ordeal for a case to reach the Supreme Court through appellate routes. Adding to that, when a case is then sent to a larger Bench, the proceedings often effectively start again. Assuming one of the parties is not satisfied with the judgment, they have to file a review or curative petition. Keeping aside further appellate remedies like review or curative petitions, this extra step of reference to a larger Bench creates unnecessary delay for the parties seeking a relief. This is the central contention here. The practice of constituting Benches with an even number of Judges from the onset leading to a split verdict in some cases, is hampering the right to speedy justice, which is an integral part of Article 21⁵ of the Constitution of India.⁶ In S.P. Gupta v. Union of India⁷, the Supreme Court held that:

741. … Two vital limbs of the justice system are that justice must be within the easy reach of the weaker sections of the society and that it must be attainable within a reasonably short time, in other words, speedily.

Split verdicts violate both. Firstly, “the reasonably short amount of time” is increased unnecessarily because by the time a concrete judgment is delivered by a larger Bench referred to by the even Bench, the case would already be sub judice for a considerable period of time. Secondly, the resources that are required to constantly be involved in litigation, especially in the Supreme Court make the whole process (that is already incredibly difficult) virtually impossible.

Case studies of judicial division:

Certain case studies demonstrate the bane of split verdicts by the higher court:

(1) Tahir Hussain v. State (NCT of Delhi)⁸: In this case, the petitioner was a politician and was accused of being involved in the Delhi Riots of 2020 among other crimes. He was languishing in jail for almost 5 years and applied for interim bail before the Supreme Court. The main contentions were that the trial was not even close commencing and his fundamental rights, namely, Article 21⁹ were being violated. Further, he sought bail to campaign for the upcoming Delhi Assembly Elections. The Court delivered a split verdict where Justice Mithal opined that liberty given to an accused in such a heinous crime can potentially lead to detrimental consequences. Whereas, Justice Amanullah held that the petitioner had spent almost 5 years in jail and should be released on bail. There were no operative orders in this case and the case was sent to a larger Bench.

This case demonstrates how split verdicts can severely cause an impediment to the liberty of a person. The petitioner was left in a limbo even after spending the last half-decade in jail without conviction. In the matters of life and liberty, speedy justice is imperative in a functional democracy, however, this ordeal essentially negates it.

(2) P. Nallammal v. State¹⁰: The petitioner here was the wife of the ex-Chief Minister of Tamil Nadu. The Madras High Court convicted the petitioner’s husband under Sections 13(1)(e)¹¹ and (2)¹² (disproportionate assets) of the Prevention of Corruption Act, 1988 (POC Act)¹³ and found her guilty of abetment. She appealed to the Supreme Court against the conviction. The Supreme Court delivered a split verdict: Justice Dhulia upheld her conviction, stating that a number of properties were bought in her name throughout the tenure of her husband indicating complete knowledge of all the crimes that were being committed and her tacit involvement in all of them. However, Justice Amanullah dissented and acquitted her by observing the typical dynamics of marriages in India are incredibly complicated, and the properties being in her name do not reflect mens rea on her part. The case was then referred to a larger Bench.

It is crucial to note that economic crimes in India hold significant weight. They fundamentally hamper the monetary working of the nation and are dealt with severe care and attention. Laws for persons seeking bail accused under the Prevention of Money-Laundering Act, 2002¹⁴ and the POC Act are incredibly stringent.¹⁵ Hence, in a case where the petitioner has been convicted for disproportionate assets, the final judgment of the Supreme Court becomes extremely important as it gives a definitive end to a series of appeals and provides crucial precedent for the interpretation of economic crime laws.

(3) Aishat Shifa v. State of Karnataka¹⁶: In 2022 the Karnataka Government released an order mandating a uniform dress code in government schools and allowed private schools to enforce their own form of dress code “in the interests of unity, equality and public order”. Effectuating this order, the practice of wearing hijab in a particular school was banned. A petition challenging this order was rejected by the Karnataka High Court and the judgment was subsequently appealed in the Supreme Court. It was contended by the petitioners that the practice amounted to an essential religious practice. The Supreme Court delivered a split verdict, where Justice Gupta upheld the government order and observed that the order was well within the Government’s legislative competence. On the contrary, Justice Dhulia struck down the order stating that it violated the fundamental rights of the students, namely, Articles 14¹⁷ and 19¹⁸ of the Constitution of India. The matter was then referred to a larger Bench.

Here, two things are to be noted: firstly, female children whose education is at stake are getting sacrificed because of an indeterminate delay in the next judgment; secondly, this creates a legal vacuum in the educational-legal sphere of jurisprudence, where it is still not clear where government orders that regulate uniforms stand.

Instances of judicial expediency

In order to remedy this inordinate delay in justice delivery, the Supreme Court has sometimes taken expeditious steps to ensure quick disposal in urgent cases. For example, in Yakub Abdul Razak Memon v. State of Maharashtra¹⁹, the Supreme Court was divided on his mercy plea on the eve of his hanging. However, the next day a larger Bench confirmed his death sentence the very next day. In another case²⁰, where a 26-week pregnant woman’s permission to terminate her pregnancy was challenged, the Supreme Court’s verdict stood split. However, just 5 days later, a larger Bench decided on the matter and held that the woman cannot medically terminate her pregnancy at that stage. These cases prove that the Supreme Court in cases of national interest and medical emergencies, has expedited its decisions and delivered a definitive verdict through a larger Bench.

Therefore, one of the criteria implicitly identified by the courts to create odd-numbered Benches in an expedited manner are matters of “urgency”. These cases are generally extensively covered by the media or are of profound public importance, so the process of decision-making has to be quick. It is fair to mention, however, that these types of cases, where the Supreme Court or the High Courts actually create a new Bench and deliver a verdict within a short time span, are few and far between. Moreover, to clarify, expedited verdicts do not necessarily mean well-reasoned judgments and that is certainly not desirable. Nevertheless, the creation of a larger odd-numbered Bench is something that is certainly a dire need for swift justice.

Way forward

The conundrum of split verdict is to be tackled in High Courts and the Supreme Court with different reforms, as both face a different set of challenges.

High Courts: The core proposal to avoid split verdicts is to constitute odd-numbered Benches, such as Single Judge or three Judges instead of two for regular Division Benches, or five/seven for more complex matters. This will ensure that the chances of a split verdict are eliminated and an odd-numbered Bench will always deliver a definitive judgment, thereby preventing procedural redundancies. However, the primary obstacle to this reform, however, lies in the acute shortage of Judges plaguing almost all High Courts, which would complicate the formation of larger Benches²¹. This will again lead to the further burgeoning of cases on an already overburdened judiciary. A fundamental solution to that is an expedited filling of these judicial vacancies, which would necessitate a streamlined appointment process and robust infrastructure development to support and ensure that the courts are well-equipped with judicial strength and can handle necessary matters without getting overburdened. High Courts like the Allahabad High Court, Punjab and Haryana High Court, Gujarat High Court are all grappling with an almost 40% vacancy rate²² and simply filling those will substantially alleviate most of the problems in constituting the proposed larger odd-numbered Benches.

Supreme Court: The same proposal of constituting odd-numbered Benches should be effectuated in the Supreme Court as well. However, implementation of this proposal similarly runs into the same issue of inadequate judicial strength that the High Courts face. Even after generally working at full sanctioned strength, the Supreme Court still has a pendency of around 83,000 cases and constituting an odd-numbered Bench every time would be functionally very difficult²³. A long-term proposal would be to increase the overall strength again; however, that would require the amendment of Article 124 of the Constitution of India²⁴ and that power is vested with the Parliament. This step is certainly desirable, but the onus would be on the Parliament and it is not actionable for immediate relief. Further, the Supreme Court’s practice of only constituting an at least 2-Judge Bench is a big obstacle. To remedy these impediments, matters that result in a split verdict (without an operative order) should be automatically referred to a larger Bench. Ideally, that Bench ought to commence its hearings in a time-bound manner. This reform will ensure that an unresolved case due to a split verdict will be heard again in a short, predictable time span, saving essential resources and, essentially, protecting the fundamental rights of the parties involved.

Conclusion

In conclusion, split verdicts are a major procedural hurdle in India’s legal system. The process to get justice is generally a very vexatious endeavour. Adding on to an already languid system, this practice causes an unnecessary delay for the parties to get definitive judgments. Cases that deal with personal liberty, economic crimes and constitutional matters especially call for quick procedural steps in order to commence hearings in the courts. Eliminating this additional and redundant practice of referring to a larger Bench after a divided verdict results in a faster judicial process. It not only reinforces the trust and integrity of our sacred judicial institution but also upholds the fundamental rights of the litigants.