Why in News? 

• 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 have been in news recently after the recent Supreme Court Judgement on demonetization.

What is Judicial Majoritarianism?

• The requirement for a majority consensus flows from Article 145(5) of the Constitution, which states that no judgment in such cases can be delivered except with the concurrence of a majority of the judges but that judges are free to deliver dissenting judgments or opinions.
• Numerical majorities are of particular importance to cases, which involve a substantial interpretation of constitutional provisions. In such cases, Constitutional Benches, consisting of five or more judges, are set up in consonance with Article 145(3) of the Constitution.
• Such Benches usually consist of five, seven, nine, 11 or even 13 judges.

An issue with Judicial Majoritarianism:

• Issue of why numerical majorities of judicial bodies are accepted without any debate, while numerical majorities in representative bodies such as the Lok Sabha are often looked at with suspicion.

Reflect upon the concept of judicial majoritarianism:

• Jeremy Waldron in his ‘Five to Four: Why Do Bare Majorities Rule on Courts?’ He holds that the arguments of – efficiency through ease of decision-making; epistemic objectivity through majority adherence; and equality through fairness, which are made in defence of judicial majoritarianism cannot explain or justify our adherence to majority decisions.
• As opposed to representatives of the people in legislatures who may act on hunches or popular perception, judges are experts of law and are aware of the arguments for and against the impugned matter. 
• Given the same, Jeremy Waldron questions why is it that the judges too have to resort to head counting in order to resolve disagreements amongst judges.
• All judges on a particular Bench give their rulings on the same set of facts, laws, arguments and written submissions. 
• In light of the same, any differences in judicial decisions can be attributed to a difference in either the methodology adopted and the logic applied by the judges in their interpretation, or, upon their own ‘judicial hunches’ which may be an outcome of their subjective experiences, outlook, perceptions, prejudices and biases.

Constitutional history:

• The dissenting opinion of Justice H.R. Khanna in A.D.M. Jabalpur v. Shivkant Shukla (1976) upholding the right to life and personal liberty even during situations of constitutional exceptionalism is a prime example.
• Another example is the dissenting opinion of Justice Subba Rao in the Kharak Singh v. State of U.P. (1962) case upholding the right to privacy which received the judicial stamp of approval in the K.S. Puttaswamy v. UOI (2017) case.

Way Forward:

• Seniority-based assessment: Ronald Dworkin proffers a system which may either give more weightage to the vote of senior judges given that they have more experience or to the junior judges as they may represent popular opinion better.
• Inculcate critical discourse