Is judicial majoritarianism justified?

GS Paper 2
Syllabus: Judicial Reforms

Recently, there has been criticism about the way that courts make decisions based solely on the number of judges who agree, without considering the arguments and evidence presented in dissenting opinions. This was highlighted in a recent Supreme Court ruling on the demonetization policy.

What is Judicial Majoritarianism?

Judicial majoritarianism is the idea that decisions made by courts should be based on the majority opinion of the judges involved.

• This is based on Article 145(5) of the Indian Constitution, which says that a court’s decision must be made with the agreement of most judges.
• In cases that involve important interpretations of the Constitution, larger groups of judges, known as Constitutional Benches, are set up to make a decision.
• These benches can have anywhere from five to 13 judges.
• Despite this requirement for a majority, judges are allowed to express their dissenting opinions.

A problem with relying on the majority opinion in courts is that it raises the question of why the number of judges in favor is accepted without question, while a similar majority in representative bodies such as the Lok Sabha (the lower house of India’s parliament) is often viewed with skepticism.

Judicial majoritarianism is the concept that the decisions made by courts should be based on the majority opinion of the judges involved. On one hand, the requirement for a majority consensus ensures that decisions are not made arbitrarily by a single judge. On the other hand, the emphasis on the numerical majority can lead to a neglect of minority opinions and arguments, which may provide important perspectives and insights. In some cases, a dissenting opinion may provide a clearer understanding of the issue at hand or offer alternative solutions. Additionally, the acceptance of judicial majoritarianism raises questions about the role of the judiciary in interpreting the law and protecting individual rights and freedoms.

In conclusion, the concept of judicial majoritarianism requires careful consideration and balancing of the need for democratic decision-making with the importance of protecting minority opinions and individual rights.

Judicial Examples

• The dissenting opinion of Justice H.R. Khanna in the A.D.M. Jabalpur v. Shivkant Shukla case in 1976 is a well-known example of the importance of minority opinions in the judiciary.
• In this case, Justice Khanna dissented from the majority opinion and upheld the right to life and personal liberty, even during times of constitutional emergency.
• Another example of the significance of dissenting opinions in the judiciary is the dissenting opinion of Justice Subba Rao in the Kharak Singh v. State of U.P. case in 1962. In this case, Justice Subba Rao dissented from the majority opinion and upheld the right to privacy. This dissenting opinion went on to receive judicial recognition in the K.S. Puttaswamy v. UOI case in 2017, where the Supreme Court of India declared the right to privacy to be a fundamental right. This case demonstrates the long-term impact that dissenting opinions can have and highlights the importance of considering minority perspectives in decision-making.

Also watch: Judicial Reforms

ThoughtChakra: Prelims Focus

Alienation

Alienation in sociology refers to the feeling of being detached or disconnected from one’s environment, work, the products of one’s work, or one’s own identity. This concept is often used to describe a sense of disconnection or estrangement that individuals may experience in modern society.

Reverse Flipping

The Economic Survey 2022-23 noted that Indian start-ups are considering moving their headquarters back to India.

This is due to several factors including easy access to capital from private equity and venture capital firms, changes in laws around “round-tripping” (the practice of routing funds back to their origin), and the growth of India’s financial markets.

This trend, known as “reverse flipping,” reflects the growing confidence and maturity of India’s start-up ecosystem.

Flipping vs Reverse Flipping

Flipping refers to a process where an Indian company changes its ownership to a foreign entity. This includes transferring all of its intellectual property and data to the foreign entity. As a result, the Indian company becomes a subsidiary of the foreign entity, and the founders and investors continue to retain their ownership through the foreign entity.

Reverse flipping refers to the opposite process, where a company that was previously transferred to a foreign entity decides to move its headquarters back to India. This shift in domicile is a reflection of the growing maturity and confidence of India’s start-up ecosystem, along with the availability of capital from private equity and venture capital firms, and changes in laws around “round-tripping”.

Reasons why startups were “flipping” initially

Start-ups face a number of challenges that can make it difficult for them to succeed, including:

1. Funding hurdles – Many start-ups struggle to secure the funding they need to grow and succeed.
2. Revenue generation difficulties – Start-ups often struggle to generate enough revenue to sustain their operations and continue to grow.
3. Lack of supportive infrastructure – Start-ups may not have access to the tools and resources they need to succeed, such as office space, technology infrastructure, and support services.
4. Complex regulatory and tax environment – Start-ups may also face challenges in navigating complex laws and regulations, as well as a tax system that can be difficult to understand and comply with.

In response to these challenges, many start-ups chose to headquarter themselves in foreign countries, especially in destinations that offer favorable legal and tax policies. This allowed start-ups to focus on growing their businesses without having to worry as much about the various hurdles they would face if they were headquartered in India.

Macrosomia

Macrosomia is a term used to describe large babies. It comes from the Greek word for “large body.” If a baby weighs more than 4 kilograms (8.8 pounds), it is considered to have macrosomia, regardless of how long it was in the womb.

There are several factors that can contribute to macrosomia:

1. Maternal diabetes: High blood sugar levels during pregnancy can cause the baby to grow larger.
2. Genetics: Large birth weight can run in families.
3. Obesity: Maternal obesity can also increase the risk of having a macrosomic baby.
4. Previous large baby: Women who have previously had a large baby are more likely to have another macrosomic baby.
5. Multiple gestation: Women carrying twins or more are at a higher risk of having a macrosomic baby.
6. Advanced maternal age: Women who become pregnant at an older age are at a higher risk of having a macrosomic baby.

The delivery of a macrosomic baby (a baby weighing over 4kg) can pose difficulties in passing through the birth canal due to their larger size. This can result in “shoulder dystocia”, a condition that can cause harm to the baby’s shoulders and restrict breathing and compression of the umbilical cord. Additionally, mothers delivering macrosomic babies are at a higher risk of experiencing vaginal tears, which increases the likelihood of postpartum bleeding.

Exercise Tri-shakti Prahar

It is a joint training exercise involving – the Army, Air force, and CAPFs to practice battle preparedness of security forces. It just concluded in North Bengal (near the Siliguri corridor).

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