What is the Role of a Judge in a Polyvocal Court?

For a while now, commentators have remarked about the “polyvocal” character of the Indian Supreme Court. The Court comprises of 28 judges who sit, for the most part, in benches of two (or at most, three). For this reason, the Supreme Court – it is argued – is better thought of not as a single “Court”, but as many different courts of equal authority, who may often speak with different – or even opposed – voices on the same issue (consider, for instance, that time in the late 2000s, when Justices Sinha and Pasayat were handing down what were virtually duelling judgments on the death penalty). This, in turn, leads to patchwork jurisprudence, which is internally inconsistent, and invariably influenced by judicial personalities to a degree that is probably far greater than in other jurisdictions, where judges sit en banc, or at least, in a substantially larger number.

However, for all the problems of inconsistency (and even incoherence), the fact remains that any judgment handed down by a judge carries the authority of the Supreme Court of India. That judgment speaks for the Court, and by extension, for the other twenty-six judges not party to the judgment.

Keeping this in mind, I want to focus on an issue that is separate from the problems of institutional incoherence and contradictory jurisprudence, but which is becoming increasingly pressing. The polyvocal character of the Supreme Court would, under normal circumstances, be constrained by two centripetal forces: a respect for precedent – including judgments delivered by Constitution Benches from a time when two-judge benches were the exception rather than the norm – and the limited scope of the Court’s jurisdiction (i.e., the Court can only rule upon issues that are brought before it, and which concern questions of law). Institutional inconsistency, therefore, would remain a bounded inconsistency, both in terms of its content, and in terms of its subject matter.

In my view, at this point of time, both these centripetal forces (after having been consistently undermined for the last three decades, both in the Court and in the academy) are virtually non-existent. Constitution Bench precedents are regularly ignored, or distinguished on dubious bases, and the scope of PIL has now become so vast that the idea of a limit on the Court’s jurisdiction is almost laughable. This, effectively, concentrates great power in the hands of individual judges to shape or mould areas of law in a manner that is simply not contemplated in a functioning legal system.

To understand why this is a problem in the specific context of a polyvocal court, let us consider what Justice Dipak Misra (the second-most senior judge of the Court, and scheduled to become Chief Justice of India this August) has done to Article 19(1)(a) of the Constitution. In Devidas Tuljapurkar, he ignored fifty years of precedent and invented out of thin air a new standard of obscenity applicable only to “historically respectable personalities.” In Subramanian Swamy, he upheld the constitutionality of criminal defamation as it stood, ignored the conflict that the ruling set up with the coordinate bench judgment in R. Rajagopal vs State of TNconcerning the different standards in civil and criminal defamation law, and invented a mythical doctrine of “constitutional fraternity” to justify this. In his interim orders in the national anthem case, he has ignored the binding judgments of nine judges in Naresh Mirajkar and five judges in Rupa Ashok Hurra, as well as the basics of separation of powers, and has made the playing of the national anthem compulsory in cinemas before every film. In his interim orders in Sabu Mathew George, he has passed interim orders on the “auto-blocking” of keywords for sex determination, supposedly justified under the PCPNDT Act, but without any consideration of the 19(1)(a) issues at play (including those of intermediary liability). And in the Azam Khan case, which he is presently hearing, he has framed issues on whether political figures can be restrained from commenting on rape allegations, on the basis of another invented doctrine labeled “constitutional compassion” (and also goes against a line of judgments starting with Sakal Papers and ending with Shreya Singhal, which have made it clear that freedom of speech can be restricted only on the grounds listed in Article 19(2)). Out of the five cases mentioned above, four have come to the Court as PILs.

These five cases make it clear that Justice Dipak Misra does not consider the freedom of speech to be of much value. That is his personal prerogative; however, when in case after case, brought to the Court through flimsy PILs, he passes judgments that place vast swathes of speech off limits, through the invention of new doctrines completely untethered from constitutional text and at odds with clear precedent, it becomes a serious problem.

Now, in ordinary circumstances, to implement his views on free speech (or the lack thereof), Justice Misra would have had to convince a bench of five or seven judges to agree with him. However, as the senior judge in a two judge bench, he only has to convince one judge – and anyone who has spent any time in the Supreme Court knows that puisne judges rarely assert themselves against senior judges (there are exceptions, of course).

When, therefore, you combine the following features: decisions being rendered effectively by one individual (who is assigned these cases based on roster determinations by another individual, the Chief Justice), the declining importance of precedent, the evisceration of subject matter and jurisdictional limits, the fact that Article 145(3) (which requires that issues of substantial constitutional importance be heard by a bench of at least five judges) is more or less a dead letter (because the decision to refer is made by the judge hearing the case in the first place), and the predominance of PIL (which, as Anuj Bhuwania points out in his book, often amounts to the Court choosing a petitioner as much as it does a petitioner choosing the Court), you get the following result: the power to shape crucial areas of law, including fundamental rights, which impact peoples’ lives, rests in the hands of single individuals; and every institutional feature that might place a check upon those individuals’ predilections becoming the law of the land has been rendered virtually non-existent. The most basic and most important feature about a constitutional court – that its decisions ought to be rendered through a collegial process, involving give and take and compromise between judges of differing views – has completely gone.

This takes us to a crucial question, which arises simply because of what the Court has become: what about the responsibility of the other twenty-six judges who sit on the Supreme Court? For example, I suspect – and indeed, I would hope – that many of them have strongly different views on the role of free speech in a constitutional democracy, or at the very least, that they disapprove of the use of PILs to advance an anti-free speech jurisprudence that runs counter to precedent, text, and the separation of powers. In such a situation, it seems particularly problematic that a single individual (by virtue of the CJI-determined roster – and the concentration of power in the hands of the CJI will be the subject of a further post) gets to speak for the Court on issues of such great constitutional importance.

The Court as a whole, therefore, has the responsibility of evolving a mechanism that prevents this. Perhaps issues involving any article of the Constitution must compulsorily be sent to a five-judge bench, regardless of the referring judge’s opinion. Perhaps in issues involving constitutional articles, judges not on the two-judge bench should be able to write dissenting notes on the exposition of law involved – a radical suggestion, but this is a Court operating in an entirely unprecedented context. Whatever the solution, however, it is important to stress that the other twenty-six judges have to bear a substantial share of the responsibility: we cannot employ the fiction of “many different Supreme Courts” to absolve judges who, as part of the institution, acquiesce to judicial conduct and jurisprudence that they find contrary to the Constitution. Inaction must imply agreement.

I do not suggest that either of the two potential solutions outlined above will work; at the very least, though, this is a conversation that we must now begin to have.

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8 Comments

Filed under Judicial Accountability, Jurisdiction, The Judiciary

8 responses to “What is the Role of a Judge in a Polyvocal Court?

  1. Excellent post that describes the gravest threat to our freedom of speech in India and to our other fundamental rights and freedoms and which points to the great need for institutional reform in the Supreme Court of India.
    Someone should start a Constitutional Law seminar / discussion series in Delhi on a monthly basis where these and other ideas of constitutional importance can be discussed.

  2. It’s true that any judgement handed down by a Supreme Court judge carries the authority of the SC. But doubt if this judgement can be taken to speak *for* the Court (and by extension, for the rest of the judges). Especially given that there have been so many instances of judgments that have relied on diametrically opposite interpretations of same facets of the Constitution, leading to different/opposing judgments.

    By the way, this is a fantastic exposition of the malice that the Supreme Court is committing / gravitating towards. People like Misra are a major blemish to the way the supreme justice system conducts itself. I write this knowing full well that this might invoke his ire in a judicial format (that would be another example of misuse of power).

    As someone not familiar with the cases you mentioned/linked (eg Subramanya Swamy, Rajagopal vs State of TN) and as someone incapable of going over 200-odd pages of judgments (especially those of Justice Misra), would you be able to give us a single-line gist of those cases/judgments, by any chance?

  3. vijay mehta

    The author should have taken clear stand whether should we have Rule of Laws or the Rule of judges..?? All such inconsistent and controversial precedents be taken in PIL for the restatement of law in order to strengthen the Rule of Laws.

  4. Here’s the order passed by J. Dipak Misra on his proposal to redefine the limits of Article 19(1))a). See https://drive.google.com/file/d/0BzXilfcxe7yuWlhXZWFGYzAwY1U/view

    History should judge Harish Salve harshly for suggesting that Article 19(1)(a) has its own inherent limitations. Free speech and free thought have no inherent limitations. That is what makes us free humans.

    Even the Constitution accepts and provides that the only space for the State to restrict free speech is within the bounds of 19(2).

    And how can the right to life restrict free speech? And why should it?

    J. Misra is taking 19(1)(a) jurisprudence in a very dangerous direction. It is also unfortunate that Fali Nariman is a silent party to this.

    J. Misra should be informed that the core issue framed by him, i.e., as to whether Article 21 limits Article 19(1)(a) cannot even be heard or decided by a two-Judge Bench because this issue is already settled by every constitutional Bench decision on 19(1)(a), all of which have categorically accepted that the Constitution is very clear – free speech can only be restricted if the conditions laid down in 19(2) are met. And the constitutional text could not be clearer on this.

    Some third party needs to intervene in this matter before it is too late. Rajiv Dhawan has intervened in the national anthem case, maybe he or someone who stands for free speech rights should intervene in this case too.

    The core issue as framed by J. Dipak Misra does not even arise in the facts of the case before him, involving Azam Khan’s remarks.

    The SCBA Bar is failing to stand up for our fundamental freedoms and rights.

  5. The order I have linked to above shows that J. Dipak Misra is thinking in terms of “controlling” the free speech right under 19(1)(a). This just points to the ideological position on free speech that he appears to hold.

    Also, this huge question which J. Misra has framed does not arise upon the facts of the case before him. No one has filed a 32 petition saying that 21 should control 19(1)(a).

    Instead this issue that would completely eviscerate the free speech right of all one billion plus citizens is being discussed within a very elite and closed group comprising an SC Judge, Fali Nariman and Harish Salve. Will the Court not hear citizens like me and millions others who claim that only 19(2) is available to the State to limit our 19(1)(a) right and that 21 cannot be used to limit 19(1)(a) rights. Remember that the Constitution already allows the State to restrict free speech and to indeed criminalize it in the interest of the
    sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

    Why should Fali Nariman and Harish Salve be heard on this issue and no one else. Why are their personal views on the matter to be accorded such privilege over the views of millions of other adult citizens?

    Someone please publish written submissions of Fali Nariman and Harish Salve so that we can all read and discuss them before the next hearing on 20 April.

    19(1)(a) states we all have the right to freedom of speech and expression.
    Article 19 of the Universal Declaration on Human Rights states that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

    We all as human individuals have the right to speak freely. This is an unalienable and natural human right. This right is not limited to what Harish Salve imagines its contours are. Harish Salve can contour his own freedom of speech. He has no right to contour mine or yours and to decide what we one billion plus Indians can or cannot say.

    The very nature of this judicial proceeding violates constitutional principles including those of natural justice and fair adjudication.

    The right to speak freely is a part of the right to life. Over the course of human history, people have sacrificed their lives for the right to speak freely.

    The right to speak freely can have no inherent moral contours. For who decides what is moral or legitimate and under what circumstances. Harish Salve cannot decide my morality for me. Or for you. That is for me and you to decide as free human beings.

    19(2) provides sufficient space for the State to restrict this right including on the socially prevalent ideas of morality, decency and public order. This is a very vast area where to my mind every possible objection to free speech can be dealt with by the State. Why does J. Dipak Misra want to expand the control over free speech further.

    And why are Fali Nariman and Harish Salve participants in this process not as counsel appearing for parties but by virtue of some special status that they enjoy as individuals before the Supreme Court.

    If J. Dipak Misra were to hold that Article 21 limits the free speech right under Article 19(1)(a), please imagine all the different ways in which free speech could be restricted because of the very expansive interpretation to right to life that is part of our Supreme Court jurisprudence. The State could pass laws restricting free speech on any vague facet of the right to life. Remember the right to life can extend virtually to anything that involves humans. Also, this will give the Court the power to itself restrict free speech on any vague idea of the right to life and this power will be completely unguided by any written text.

    This core issue framed by J. Dipak Misra potentially poses the greatest threat to free speech in India and needs to be vigorously opposed. The issue may get decided on 20 April 2017 itself. The question is who will oppose it.

  6. And why would this stop at Article 21? In the future someone may argue that his fundamental right to religion restricts my freedom of speech.

  7. The font size rendered on Android Chrome is rather small and hard to read. Could you have a font size option or if that’s not possible, publish in a larger one…. Thanks

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