Bench

What is a Bench?

Bench, in the legal sense, can indicate the location in a courtroom where a judge sits. Secondly, the term is also used as a metonym used to describe members of the judiciary collectively, or the judges of a particular court, such as the King's Bench or the Common Bench in England and Wales, or the federal bench in the United States, or the Division Bench, Constitution bench in India. Thirdly, the term is used to differentiate judges, who are referred to as "the bench", from attorneys or barristers, who are referred to as "the bar". The phrase "bench and bar" denotes all judges and lawyers collectively.

In India, when the Supreme Court began functioning in 1958, it started with eight judges (the Chief Justice and seven other judges). They used to sit in benches of 2-3 judges each. The question of five or more judges sitting for questions of constitutional importance first came up in the deliberations of the Constitution Drafting Committee in 1948 with proviso in Article 121(2) (now Article 145(3)) that provided ‘it shall be the duty of every judge to sit for deciding any case involving a substantial question of law to the interpretation of this Constitution.’ At present, the Court has a strength of 30 judges (Chief Justice and 29 other judges). The benches of the Supreme Court usually sit in 2 or 3 except in case of constitutional matters wherein Article 145(3) of the Constitution clearly states that there must be five judges Bench for deciding questions of constitutional importance.

Official Definition of Bench

'Bench' as Defined by Legislation

The term 'bench' has a variety of meanings in different laws in India. In the Administrative Tribunals Act, 1985, it refers to a Bench of a Tribunal. In the Trade Marks Act, 1999, it refers to a Bench of the Appellate Board. In the Prevention of Money-Laundering Act, 2002, it refers to a Bench of the Appellate Tribunal. In the Railway Claims Tribunal Act, 1987, it refers to a Bench of the Claims Tribunal.

Types of Benches

The benches established by the court can be distinguished based on many criteria or pre-requisites, such as, strength of the sitting judges, the objectives behind its establishment by the court, etc.

Benches on the Basis of Strength of Judges

The benches are distinguished on the basis of strength of judges in all the levels of judiciary i.e., Supreme Court, High Court and District Court. These benches are also constituted in tribunals or quasi-judicial bodies.

Single Judge Bench

A bench of one judge was introduced through the 2019 amendment of Supreme Court Rules. Order VI Rule 1 states that normally all matters shall be heard by a bench consisting of “not less than two judges”. Nevertheless, the provision does not rule out the possibility of a single judge hearing cases. In fact, Rule 6 of Order VI envisages scenarios where a single judge during vacation may hear certain matters.

In August 2019, the Supreme Court made a number of changes to these Rules. On 11 May 2020, the Supreme Court notified a change to Order VI, Rule 1.As per this change, the following categories of cases, starting from 13 May, may be heard by a “judge sitting singly”.

a.  Special Leave Petitions arising out of grant, dismissal or rejection of bail applications and anticipatory bail applications in offences involving not more than 7 years’ imprisonment;

b. Application for transfer of criminal or civil cases from one High Court to another High Court or one trial court to another trial court in another state.

Division Bench

In India, a division bench typically consists of not less than two or three judges, and it is responsible for hearing a wide range of matters. A division bench of three judges is also called a full bench in some High Courts. The matters heard by a division bench can vary based on the jurisdiction and the level of the court. However, in general, the division bench hears the following types of cases:

a.  Appeals: The division bench hears appeals from lower courts or tribunals. These appeals can pertain to civil, criminal, or administrative matters.

b. Constitutional Matters: The division bench of the High Court or the Supreme Court of India hears cases related to constitutional issues. These matters can include challenges to the constitutional validity of laws, disputes related to fundamental rights, or interpretation of constitutional provisions.

c.  Public Interest Litigation (PIL): The division bench often hears PIL cases that involve matters of public importance. These cases can be related to environmental issues, human rights, social justice, or any other matter that affects the public at large.

d. Land and Property Disputes: Division benches of High Courts or the Supreme Court hear cases related to land acquisition, property disputes, and other real estate matters.

Constitution Bench

A bench of 5 judges or more is usually known as a Constitution Bench. Article 145(3) stipulates that a minimum of five judges needs to sit for deciding a case involving a “substantial question of law as to the interpretation of the Constitution" or to hear any reference under Article 143. Therefore, while the number of judges of a constitution bench is considered five, larger benches may also called Constitution Benches.

The Constitution Benches are exceptions, set up only if one or more of the following circumstances exist:

1.     The case involves a substantial question of law pertaining to the interpretation of the Constitution [see Article 145(3) of the Constitution, which mandates that such matters be heard by a bench of not less than five judges];

2.     The President of India has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution [again, see Article 145(3)];

Benches on the Basis of Territory

High Court

Permanent Bench

A permanent bench of a High Court is a court that is located in a place other than the main seat of the High Court. It is composed of one or more judges who sit year-round at the permanent bench location. Permanent benches are typically established in order to provide easier access to justice for people who live in remote areas. The High court benches are established in accordance with the recommendations made by the Jaswant Singh Commission and the judgement pronounced by the Supreme Court in Federation of Bar Associations in Karnataka v. Union of India.

In many states, certain regional or circuit benches have been established as permanent benches by the high court. For example, the Circuit Bench of the Patna High Court at Ranchi became a permanent bench in 1976. The Dharwad and Gulbarga benches of the Karnataka High Court were also circuit benches before they were converted into permanent benches in 2013. The following list has states which have permanent benches other than the presiding seat.

State	Permanent Bench
Maharashtra, Goa, Daman and Diu, Dadra and Nagar Haveli	Seat: Mumbai Bench: Panaji, Aurangabad, and Nagpur
Tamil Nadu	Seat: Chennai Bench: Madurai
Uttar Pradesh	Seat: Allahabad Bench: Lucknow
Karnataka	Seat: Bengaluru Bench: Dharwad and Gulbarga
Assam, Arunachal Pradesh, Nagaland, Mizoram	Seat: Guwahati Bench: Kohima, Aizawl, and Itanagar
Rajasthan	Seat: Jodhpur Bench: Jaipur
Madhya Pradesh	Seat: Jabalpur Bench: Gwalior and Indore

Circuit Bench

Circuit Bench are temporary courts that hold proceedings for a few selected months in a year. The establishment of circuit benches has been implemented successfully in certain High courts, for example, the Calcutta High Court extended its Circuit Bench in Port Blair, the capital of the Andaman and Nicobar Islands and in Jalpaiguri, the headquarter of the Jalpaiguri division of West Bengal. The Dharwad bench and Gulbarga bench of the Karnataka High Court were previously operated as circuit bench.

Special Bench

Most high court rules also contain provisions for the constitution of special benches by the Chief Justice of the respective High Court. For example, Rule 22 of the Bombay High Court Rules, 1960, states that the Chief Justice may constitute a special bench to hear a particular case or category of cases if he or she considers it necessary or expedient to do so.

Supreme Court

Regional Bench of Supreme Court

The Constitution framers wanted the Court to have a specified place of sitting so that litigants could approach it. However, they were also aware of the geographical constraints of India. Hence, they empowered the Chief Justice of India to establish regional benches across India. Article 130 of the Indian Constitution provides the Chief Justice of India the power to establish regional benches of the supreme court in India in various parts of the country. The increased workload in the apex court over the years has led to discussion about establishment of regional benches in recent years. The Law Commission has released reports with various recommendations to establish regional benches of the Supreme Court.

The Eleventh Law Commission in its 125th Report titled 'The Supreme Court - A Fresh Look,' submitted in 1988, reiterated the recommendations made by Tenth Law Commission in its 95th Report for splitting the Supreme Court into two, namely (i) Constitutional Court at Delhi and (ii) Court of appeal or Federal Court sitting in North, South, East, West and Central India. The Eighteenth Law Commission in its 229th Report had also suggested that a Constitutional Bench be set up at Delhi and four Cassation Benches be set up in the Northern region at Delhi, Southern region at Chennai/Hyderabad, Eastern region at Kolkata and Western region at Mumbai. The matter was referred to the Chief Justice of India. The Full Court in its meeting held on 18th February 2010, found no justification for setting up of benches of the Supreme Court outside Delhi.

However, this issue was live again with the establishment of the National Court of Appeal. The Supreme Court referred the issue again to a Constitutional Bench for authoritative pronouncement. This matter is still awaiting adjudication.

Special Bench

A special bench is a bench of the Supreme Court that is constituted to hear a particular case or category of cases. The special bench provision is intended to allow the Supreme Court to hear cases that are of particular importance or complexity. It can also be used to hear cases that involve a large number of parties or that have a significant impact on the public interest. It is also constituted by the Chief Justice, requiring the advocate-on-record to show cause against the matters alleged in the summons.

The Chief Justice of India may constitute a special bench if he or she considers it necessary or expedient to do so. The special bench shall consist of not less than three judges.The special bench shall consist of not less than three judges. Currently, six special Benches have been constituted by the Hon’ble Chief Justice of India and they deal with:

(i)           Death Reference Cases & Criminal Matters;

(ii)          Land Acquisition and Requisition Matters;

(iii)         Compensation Matters and Matters relating to Consumer Protection

(iv)         Indirect Tax matters and Arbitration matters

(v)          Service Matters and

(vi)         Direct Tax Matters

Law Commission Reports on Benches

Law Commission Reports on the establishment of Regional Bench(es).

58th Report: 'Structure and Jurisdiction of the Higher Judiciary' (1974)

This report recommended that the Supreme Court should establish regional benches in different parts of the country. The report argued that this would help to improve access to justice for people living in remote areas. It recommended that the regional benches should have the same powers as the Supreme Court. It also proposed that the regional benches should be coordinated by a mechanism established by the Supreme Court.

The 229th Report: 'Need for division of the Supreme Court into a Constitution Bench at Delhi and Cassation Benches in four regions at Delhi, Chennai/ Hyderabad, Kolkata and Mumbai' (2009)

This report recommended setting up a constitution bench in Delhi to deal with constitutional and other allied issues, as well as four cassation benches to be set up in the Northern region/zone at Delhi, the Southern region/zone at Chennai/Hyderabad, the Eastern region/zone at Kolkata and the Western region/zone at Mumbai to deal with all appellate work arising out of the orders/judgments of the High Courts of the particular region.

Law Commission Reports on the establishment of Constitution Bench.

95th Report: 'Damages in applications for Judicial Review Recommendations for legislation' (1984) 

This report advocated dividing the Supreme Court into two divisions: (i) constitutional division and (ii) legal division. The report also classified which kind of cases will be heard by the division. Furthermore, it required that justices be assigned to a certain division within a short period of being nominated to the Supreme Court.

125th Report: 'The High Court Arrears- A Fresh Look' (1988) 

This report made a number of recommendations for reforming the Supreme Court, including the establishment of two divisions of the Supreme Court which was advocated in the 95th report. The Law Commission argued that splitting the Supreme Court into two divisions would make justice more widely accessible.

The constitutional division would deal with cases that involved constitutional issues, while the non-constitutional division would deal with all other cases. This would allow the Supreme Court to focus on the most important cases, and it would also reduce the cost of litigation for litigants. This would ensure that the Supreme Court was able to hear cases with the highest level of expertise.

International Experiences

Deviations from Indian Practice or Conceptualisation Relating to Benches

En banc

En banc means “on the bench” in French. The term refers to a special procedure wherein all judges of a particular court hear a case. It is used when the court believes that the matter in question is especially complex or important.

This concept is incorporated in different countries with slight variations. In the United States of America, the strength of the en banc benches is determined by the Circuit bench of the court. The Ninth Circuit, for instance, has 29 judges, and its en banc court consists of 11 judges. Theoretically, the Ninth Circuit can render en banc decisions with all 29 judges participating; such a hearing would overrule a prior 11-judge en banc hearing on the same case. Though no rule exists barring a party from requesting such a hearing, no such application has ever been granted.

How Other Countries have Sought to Define, Operationalise and Collect Data Regarding Bench

The composition and powers of benches differ around the world. They are determined by whether the jurisdiction is a common or civil law system, and the constitutional provisions of the respective countries. Here, some Common law countries have been discussed to understand the different benches and their system in different countries.

United Kingdom

The Supreme Court of the United Kingdom has twelve judges, who rarely sit together as a bench. In most cases, five judges decide the matter. However, if the case raises significant constitutional issues, the Supreme Court may, at its discretion, expand the number of judges hearing the case. One such instance was the recent case of Brexit (Miller I and Miller II), the Supreme Court constituted a bench of eleven judges (one position not filled due to vacancy).

Australia

The High Court of Australia sits in panels of two on most questions that come as appeals from lower courts, though the full bench of seven sits in constitutional cases and in cases where the court is being asked to overturn precedent.

Israel

Some common law supreme courts distinguish even more sharply between cases involving constitutional issues and those involving just ordinary law. The Israeli Supreme Court, for example, sits in two capacities: as the Supreme Court, the highest court of appeal for civil and criminal matters, and as the High Court of Justice (Bagatz), which considers exclusively administrative and constitutional law disputes. Both courts have the same fifteen judges, who normally sit in panels of three for cases. However, the chief justice may decide to increase the panel to any bigger uneven number of judges in circumstances of significance - constitutional matters in the High Court of Justice.

Canada

The Supreme Court of Canada, which has a bench of nine members, has a quorum of five judges, which is the number of judges allocated to an ordinary case. However, if the case is of constitutional significance, the entire bench will be assigned to hear the case.

Appearance in Official Databases

The system of benches has limited appearance in the official databases. The Bench system in India and the roster of Judges is managed by the Chief justice of India in the Supreme Court and the Chief justices in their respective High Courts. However, some High courts have an allocation of judges according to different benches on the basis of subject matter or through regular notifications or they have an automated system by assigning Bench IDs for easier allocation of cases.

Some High Courts through notifications have divided the subject matter to different benches of Judges. Thus, the case allocation is through this classification of subject matter along with the rules of the Code:

Delhi High Court

Uttarakhand High Court

Manipur High Court

Some Courts such as Allahabad High Court, Bombay High Court, Calcutta High Court, etc. have an automatic system for allocation of cases to judges in benches. Here, cases will be automatically allocated to Courts in equal numbers having the jurisdiction. They have allotted Bench IDs for judges in different benches. Bench ID is essentially a coding of the constituted bench and reflect the details of judges and courtroom therein. Thus, the Bench IDs provide a reference to the public to know the allocation of cases and the Bench as well as the Judges.

For example, Allahabad High Court:

Research on the Concept of Benches

'The Constitution Bench Pendency Project: Methodology and Challenges' by the Vidhi Centre for Legal Policy

This is a research project that aims to track and analyse the pendency of cases before Constitution Benches of the Supreme Court of India. The project uses a variety of data sources, including the Supreme Court website, the High Court websites, and the RTI Act to identify these challenges. The paper recognises that there is a lack of comprehensive data such as: Inaccurate filing dates, unavailability of tagging orders and historic data, lack of clear identification of the status of cases (e.g., marking cases as 'pending' before a Constitution Bench is a misnomer when the issue of law has been resolved but the merits to be decided are sent back to the original bench), ambiguity in identifying the main matter, non-availability of High Court orders, etc.

'Half-Yearly Five-Judge Constitution Bench Pendency: 2023' by R. Sai Spandana

The article recognises the trend of pendency in five-judge Constitution Bench cases at the Supreme Court of India in the first half of 2023. The article notes that the number of pending cases has decreased from 43 at the beginning of the year to 38 at the end of May. This is due in part to the Supreme Court's increased efficiency in listing cases, assigning them to smaller benches, and delivering comprehensive orders that need no further appeals. The article also notes that the Supreme Court has heard and decided several important cases in the first half of the year, including cases on the constitutionality of the Citizenship Amendment Act, the electoral bonds scheme, and the appointment of judges to the Supreme Court. The article concludes by noting that the decreasing pendency of five-judge Constitution Bench cases is a positive sign for the Supreme Court's efficiency and productivity.

'Interpreting the Constitution: Supreme Court Constitution Benches & Independence'

The paper explores the challenges associated with data used in the context of the Supreme Court of India. It emphasises the importance of Constitution Benches in addressing significant legal and constitutional questions. However, the paper highlights that data collection and interpretation in this area are challenging due to discrepancies in official court reports and the vast number of cases involved. It also discusses the issue of subjectivity in data interpretation. Moreover, the dynamic nature of constitutional interpretation makes it difficult to analyse past data in the context of present-day cases, considering factors like changes in bench composition, evolving societal values, and the influence of precedents. The paper also raises concerns about the lack of transparency in data collection and publication.

Related terms/Synonymous terms

The concept of Bench is synonymously also used with the term 'panel.' A panel is ordinarily known as a group of judges selected to hear and decide a case. The term is generally used to indicate the strength of the judges on a case. However, Benches in India have significant importance as they have pre-determined strength of judges and degree of stare decisis.

Bench is also commonly confused with the term 'collegium.' However, collegium is a group of high-ranking judges who are responsible for the appointment and transfer of judges in India while the Bench does not perform these functions and only resolve cases and offer judgement.