JUDICIAL MAJORITARIANISM

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• Recently the Constitution bench of the Supreme Court in a majority opinion (4:1) upheld the Union Government’s demonetization order of 8th November 2016 to demonetize currency notes of Rs 500 and Rs 1,000.
• The majority of judges (4:1) accepted all arguments of the Union Government
  • Section 26(2) of the Reserve Bank of India Act, 1934 gives the Union government the power to demonetize currency “on the recommendation of the Central Board” of the RBI.
  • The majority view found that the word ‘recommendation’ would mean a consultative process between the Central Board and the Central Government.”
  • The judges highlighted that it cannot be expected that the RBI and the Central Government acted in two isolated boxes. An element of interaction/consultation in such important matters cannot be denied.
  • The majority verdict states that curbing fake currency, black money and terror funding are legitimate interests of the state and have a rational nexus with demonetization.
  • The court said that the Centre is the best judge since it has all the inputs about fake currency, black money, terror financing & drug trafficking.
  • The majority stated that the court cannot determine the effectiveness of the economic policy. It agreed with the Centre’s contention that the decision had to be made in secrecy and haste for it to be effective.
• Justice B V Nagarathna disagreed with the reasoning and conclusions in the majority opinion
  • The Justice stated that demonetization was a violation of Section 26(2) of the RBI Act as the recommendation for the demonetization originated from the Centre and not the RBI’s Central Board.

Judicial Majoritarianism:

• Many Social activists criticized the above situation and raised questions concerning the blind acceptance of numerical majorities in judicial decision-making and the constitutional disregard of analysis and appreciation of arguments and evidence in dissenting judgments.
• Unlike the standard matters heard by Division Benches consisting of two judges, numerical majorities are of particular importance to cases which involve a substantial interpretation of constitutional provisions.
• Constitutional Benches consisting of five or more judges are set up in consonance with Article 145(3) of the Indian 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.
• All judges on a particular Bench give their rulings on the same set of facts, laws, arguments and written submissions.
  • Any differences in judicial decisions can be attributed to a difference in either the methodology adopted or the logic applied by the judges in their interpretation, In such circumstances, the majority may fall into either methodological fallacies and errors or be limited by their ‘judicial hunch’ respectively.
• The absence of a critical discourse on judicial majoritarianism represents one of the most fundamental gaps in our existing knowledge regarding the functioning of our Supreme Court.
  • As pending Constitutional Bench matters are listed for hearing and judgments are reserved, we must reflect upon the arguments of judicial majoritarianism based on which these cases are to be decided.

https://www.thehindu.com/specials/text-and-context/is-judicial-majoritarianism-justified/article66460574.ece