While in the High Courts, Judges sit singly or in a division bench ( i.e. a bench of 2 judges ) or sometimes in a full bench ( i.e. a bench of 3 or more judges ) to hear cases, in the Supreme Court judges always sit in benches, usually of 2 judges, but occasionally of 3 or more . No judge sits singly in the Supreme Court.
The purpose of forming benches of 2 or more judges is that a single person, however intelligent and learned he may be, is likely to have views which are one sided and subjective, with his personal prejudices, predilections and views influencing his judgment . But when 2 or more persons sit together and discuss a matter, the decision becomes more objective, with personal angularities rubbed off, and all aspects considered. Errors of a single person are often corrected by another. This is the reason for forming benches of 2 or more persons.
But for a bench of 2 or more persons to function effectively, it is necessary that each of the judges on it must apply his/her mind independently, and express his/her own views.
When I sat for the first time with Justice Gyan Sudha Mishra in the Supreme Court, before entering the Courtroom I had a few minutes talk with her. I told her " Sister, although I am the senior member on our bench, in the Court we are equals. Please feel free to disagree with me whenever you wish, I will never be offended or take it amiss. In fact the very purpose of a division bench is that both judges should apply their minds, and not that the junior judge should sit like a dummy. In fact sometimes I may be on the wrong track, and then you can correct me. You can also put questions to the lawyer arguing a case directly, and not necessarily through me ".
At this she said that I was very gracious, and that no senior judge with whom she sat in the High Court or Supreme Court had ever spoken like this to her.
What I found in my long career in the judiciary is that often ( though not always ) senior judges on a bench resent it if the junior judge disagrees with him, or even puts a question to a counsel arguing a case directly. They feel that the junior judge is misbehaving if he does so, and expect him to sit like a dummy, and just sign on the dotted line on the judgment prepared by them. But this way the very purpose of forming a bench is undermined.
Once when I was sitting in a division bench with a senior judge in the Allahabad High Court, after hearing the arguments of the lawyers the senior judge would dictate orders without even consulting me. When I told him that he should consult me before dictating orders, he felt very offended.
The old tradition of the Allahabad High Court was that the Chief Justice would sit with the seniormost judge in the Court. The reason for this was that a very senior judge could disagree with the Chief Justice if he thought the Chief Justice was wrong, whereas junior judges, though theoretically they too could disagree with him, in practice would rarely have the courage to do so.
In recent times, however, this sound practice has largely been given up. When I was a Judge in the Supreme Court, I found the Chief Justices would usually sit with junior judges, who would rarely disagree with him, probably thinking it is not good manners to disagree with the Chief Justice..
In Constitution benches ( i.e. benches of 5 or more judges ), the senior judges should sit with the Chief Justice ( if he was on the bench ). But what I found was that often junior judges were made to sit with the Chief Justice who would rarely disagree with him, thus undermining the very purpose of forming such a bench.
I will conclude by relating an interesting incident in the Allahabad High Court a century ago ( related in the memoirs of my grandfather Dr. K.N. Katju )
Sir Henry Richards was at that time Chief Justice of the Allahabad High Court ( he was Chief Justice from 1914 to 1919 ) and sitting with him on the bench hearing criminal appeals was the senior most puisne judge of the Court, Sir Pramoda Charan Banerji. While Sir Henry Richards was known to be a liberal judge who was not readily disposed to accept the police version in every criminal case, Sir Pramoda Charan was considered by the bar as a severe, or to use a vulgar expression, a 'convicting' judge.
A criminal appeal against a death sentence came up for hearing before this bench.
After the appeal was heard for some time, the 2 judges ceased to be fellow travellers in the same direction. Instead of talking with each other, they were talking at each other through the lawyers.
When one of them would put a question to the lawyer,the other judge would intervene by saying " Probably your answer to this would be----:, and so on.
Soon the judges ceased to be even on talking terms with each other, and each was ostentatiously sitting up in his chair looking around elsewhere.
After arguments were over, it was obvious there would be divergent judgments, and the matter would have to be referred to another bench.
The Chief Justice, being the senior judge on the bench, began dictating his judgment first. After a careful consideration of the prosecution evidence he ended up by saying that it would be unsafe to uphold the conviction of the accused, and giving him the benefit of doubt would acquit him.
Then began Sir Pramoda Charan. He dictated his long judgment countering the comments of the Chief Justice, and everyone in Court thought that the matter would now be sent to another bench.
But lo and behold ! At the end of his lengthy judgment he was heard dictating the conclusion " However, inasmuch as the learned Chief Justice has come to a different conclusion in favour of the accused, I am not prepared to dissent. I therefore agree that the appeal should be allowed and the accused. "
Everyone present in Court was electrified, the most being Sir Henry Richards himself. He could not believe his ears. Throughout the delivery of Sir Pramoda Charan's judgment, Sir Henry Richards had been sitting deep in contemplation, with his eyes half closed, but as soon as he heard the concluding words he suddenly sat up, as if an electric shock had been given to him. His face glowed, and he simply beamed with joy, and almost looked like a blushing bride.
And then Sir Henry rose from his chair, his face wreathed in smiles, and bowed low before Sir Pramoda Charan.
Some people commented that it was wrong for Sir Pramoda Charan to have acquited the accused having found him guilty. After all, each judge on a bench must apply his mind independently
Others said that Sir Pramoda Charan had done the right thing, as it would be monstrous for one judge to say that he would hang the accused when the other judge was in favour of acquittal.
I leave it to the readers of this post to express their views on this.