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(This is a guest post by Shreya Munoth.)

Reams have been written about Chief Justice Dipak Misra’s legacy at the helm of the Indian Supreme Court, both on the judicial as well as the administrative side. His jurisprudential legacy is a mixed-bag, and his administrative legacy leaves even less to be desired. But in this post, I write about Chief Justice Misra’s tryst with constituting and heading constitution benches in the year 2018.

The last month of Chief Justice Misra’s tenure as the Chief Justice of India (as he then was) saw judgments being delivered in six cases, running to 2,753 pages cumulatively. These were heard by benches comprising of five judges (constitution benches) starting from January 2018. All the benches in these six cases were headed by Chief Justice Misra. These six cases heard by constitution benches were on diverse constitutional issues – the validity of Aadhaar; the validity of Section 377 of the Indian Penal Code which criminalized consensual adult homosexual acts; the validity of restricting women from entering the Ayyappa temple at Sabarimala; the validity of Section 497 of the IPC which permitted husbands to prosecute other men who had consensual sex with their wives (‘adultery’); whether legislators could be disqualified on the basis of charges framed against them in criminal cases (‘criminalization of politics’); and the correctness of the decision in the M. Nagaraj, which excluded the “creamy layer” from reservations for Scheduled Castes and Scheduled Tribes during promotion (‘reservations in promotions’).

Article 145(3) of the Constitution stipulates that all cases involving substation questions of law relating to the interpretation of the Constitution must be heard by a bench of the Supreme Court comprising of at least five judges, otherwise called constitution benches. The Supreme Court, in ordinary course, sits in benches comprising of two or three judges. In the Supreme Court’s recent past, there have been very few instances of numerous constitution benches being set up, particularly one right after the other. Nick Robinson et al’s analysis on constitution benches that have been set up between 1950 to 2009 brought to light that the number of constitution benches annually have dramatically declined from the 1960s when, on an average, more than hundred constitution benches were set up each year, to the 2000’s where that number dropped to less than seven benches per year.

Seen in this light, Chief Justice Misra was unusually proactive in constituting constitution benches and hearing the cases listed before such benches. In his tenure as CJI, for a little longer than thirteen months (August 2017 – October 2018), he constituted and headed at least thirteen constitution benches, six of which were constituted and delivered judgments in 2018. Aadhaar was heard from January 17 to May 10, 2018, the second-longest constitution bench hearing in the history of the Supreme Court. The other five constitution bench cases of 2018, in all of which judgments were pronounced in September, 2018, were heard one after the other from July 10, 2018 to August 30, 2018. This post is, largely, limited to the six constitution bench cases heard and decided in 2018.

The six constitution bench judgments delivered in September 2018 alone – as pointed out above – cumulatively run to 2,753 pages. Two thousand, seven hundred, and fifty-three pages that are to be read by judges, lawyers, Indians, and others interested in the working of the Indian judiciary. Of these six judgments, only two judgments (criminalization of politics and reservations in promotions) had a single majority opinion, i.e. where one judge wrote the judgment on behalf of all 5 judges. Two judgments (377 and Adultery), which reached unanimous conclusions, had four judges writing separate concurring opinions. Only two judgments had dissenting opinions (Aadhaar and Sabarimala). While Aadhaar had three judges deliver separate opinions, with Justice Chandrachud dissenting from the majority and Justice Bhushan going beyond what the majority held, Sabarimala had four judges deliver separate options, out of which only Justice Malhotra penned a dissenting opinion.

There are a few aspects that I would like to highlight regarding Justice Misra’s tryst with constituting constitution benches.

Procedural Lapses

First, the manner of constituting constitution benches, the notice given to the parties and their lawyers, and the composition of these benches left much to be desired. On January 8, 2018, a writ petition, for admission, was listed before a three judge bench headed by Justice Misra challenging the validity of Section 377. At the stage of issuing notice on the petition itself, Justice Misra proceeded to refer the case to a larger bench. This is to be contrasted with the usual practice, where after notice is issued on a case, the two or three judge bench it is assigned to, if it deems necessary, refers the issue to a larger bench. This may seem like a minor technical impropriety, but seen along with other procedures that have been ridden a roughshod over, the reason for referring the 377 petitions directly to a larger bench, and then prioritizing the 377 petitions over other constitution bench cases, deserves examination.

On January 12, 2018, the Supreme Court registry issued a notice listing 8 constitution bench cases starting from January 17. The first case listed was Aadhaar (Note: Aadhaar went on to be argued for 38 days, with the judgment being reserved on May 10. Aadhaar was given the privilege of being the second longest constitutional bench hearing in the history of the Court since Independence. Importantly, the constitution benches that Chief Justice Misra constituted in 2018 only sat for 3 working hours on a good day, as opposed to the usual practice of sitting for at least 4 and a half hours. This could have been a contributing factor in the time taken to hear Aadhaar). In this January notice the 377 petition (titled Navtej Singh Johar and Ors. v. Union of India) was listed fourth in the order of hearing.

Soon after the Supreme Court re-opened after the summer break, to the astonishment of many, the Supreme Court registry issued a fresh notice on July 5, 2018, listing four cases to be heard starting from July 10, 2018. The first case listed in the new notice was on the validity of 377. One can only conjecture the reason for this new re-ordering. The lawyers for the 377 case were given a precious five days’ advance notice to prepare for a case that dealt with the fundamental rights of millions of Indians. This was not the only time this happened: as late as August 1, 2018, a constitution bench was constituted for hearing the case relating to reservations for promotions (the infamous manner and composition of the constitution bench headed by Chief Justice Misra in the 2017 petition setting out the CJI as the omniscient master of the roster has (rightly) already been heavily critiqued on this blog).

Bench Composition and Intellectual Conformity

Coming to the composition of benches, Chief Justice Misra has been a part of all, but one, constitution benches that sat during his tenure as CJI. This is not anachronistic. Robinson et al noted that the chief justice has historically sat on about 77% of constitution benches, and wrote the majority opinion in 21% of them. The only constitution bench that Chief Justice Misra constituted that he was not a part of was the one hearing the petition pertaining to impeachment proceedings moved by some parliamentarians against him. This constitution bench did not end up passing an order or a judgment as, after some oral arguments, the petitioners withdrew their plea. The manner of the constitution bench formed to hear the impeachment petition is also very circumspect.

Robinson et al also noted that:

Strikingly, we could only locate 10 times the chief justice has been in dissent in the history of all constitution benches (he wrote a dissenting opinion in eight of these cases). This record may indicate that the chief justice is potentially picking benches that are more likely to decide in a way that he favours.

 

How does Chief Justice Misra fair in this regard? Chief Justice Misra has not dissented even once in a constitution bench that he headed as the CJI. To be fair, as Robinson has pointed out, this is not something unique to Chief Justice Misra, and most CJIs have never dissented in constitution bench cases. On the issue of “picking the benches”, however, four of the six 5-judge benches of 2018 cases had the same composition (J. Nariman, J. Khanwilkar, Chandrachud and Malhotra JJ). Aadhaar, which had a (only slightly different composition) had Justices Sikri and Bhushan in the places of Justices Nariman and Malhotra (who was inducted as a judge only in July 2018). However, Justices Sikri and Bhushan were a part of at least six other constitution benches constituted by Justice Misra, in 2017 and 2018. The case pertaining to reservations against promotions had a unique bench composition that consisted of Justices Kurian Joseph and Sanjay Kishan Kaul, in addition to Justices Misra, Khanwilkar, and Malhotra. This case was the only constitution bench judgment that had one of the 4 senior-most judges (Justice Joseph), apart from the CJI, as a part of the 5-judge bench. Not a single constitution bench set up by Justice Misra, apart from this one, had any of the next 4 senior-most judges. Recall, the infamous press conference held by the 4 senior judges where one of their grievances was the assignment of cases by the Justice Misra to “benches of his preference.”

Concurring Judgments and Inordinate Length

Second, Justice Misra’s frenzy of setting up numerous constitution benches, with six major judgments all delivered in his last month at Court also resulted in a number of these decisions having concurring opinions. In fact, the only two cases that have single majority opinions (criminalization of politics and reservations in promotions) are the ones that were heard in the end. My problem isn’t just with the practice of authoring concurring opinions, but the form and manner of doing so. In the 5 constitution bench cases heard in the second half of 2018, the judgments display a clear lack of one concurring opinion engaging with the other. This is purely in the realm of speculation, but my sense on reading the judgments were that all the opinions were authored as disparate opinions which did not have the advantage of referring to the others, not at least till the very end. For instance, in Sabarimala, the three concurring opinions by Chief Justice Misra and Justices Nariman, and Chandrachud, all list out the facts, the proceedings before the Kerala High Court, extensively quote the same precedents, and summarise the submissions made by counsels. They also take divergent routes to arrive at the same conclusions. It is arguable that if the other majority judges have not dissented from specific findings, all concurring judges are speaking for the majority and that is binding on all benches of co-equal or lesser strength and on all high courts. However, it definitely leaves the door open for more judicial hours and challenges being wasted on discussing which of the majority opinions holds the field and if indeed silence by other concurring judges amounts to acceptance. Clarity should be the cornerstone of decisions, particularly larger bench decisions of the Apex Court. Unfortunately, these six decisions, with their numerous concurrences which do not speak to or inform each other, are a far cry from the clarity and precision one would expect.

Third, on a slightly related note, these six decisions, with their numerous concurrences and a few dissents, apart from being convoluted, are incredibly lengthy. The Aadhaar judgment alone runs to 1,448 pages. I’d wager that out of the 1.3 billion Indians, a maximum of 200 have read the Aadhar judgment from cover to cover. Robinson et al note that “in the four-year period from 2006 to 2009, there were 12 constitution bench decisions, of which three (or 25%) were over 100 pages and two (or 17%) were over 200 pages, making determining the law an almost monumental reading feat.” I wonder what they would have to say about the colossal task of imbibing 2,753 pages all delivered in less than a month. The lengths of other judgments by constitution benches headed by Chief Justice Misra in 2017 range around the 500-page mark. The straight-forward question of whether Parliamentary Standing Committee reports could be relied on in proceedings before Courts took the Supremes 338 pages to decide. Ironically, the same Supreme Court in September, 2018 waxed eloquent about the need for “open justice” while permitting live streaming of its proceedings. Is “open justice” then limited only to the physical accessibility of court room proceedings? Does it not necessarily extend to its judgments? Who is the Supreme Court writing its judgments for and who are they applicable to? Surely, not only a handful of elite lawyers. Are judgments an exercise of displaying deep grasp on abstract philosophical principles? The Supreme Court is routinely deciding matters that directly affect the rights and obligations of the citizenry. Couched in flowery prose, running to a few hundred pages, makes these decisions which have a real impact on the very lives of the citizens far out of reach of these very citizens its diktats are addressed to. These verbose judgments also make it impossible for commentators to meaningfully distill them in easy and comprehensive summaries. Contrast this with the South African Constitutional Court, where the judgments are generally well under 200 pages, and the Court issues a two or three pages’ long media summary along with the judgment, making them very accessible. While this criticism of verbosity and inaccessibility does not extend only to judgments in the Justice Misra era, a CJI who fashioned himself as omniscient, could surely lead by example in being concise and precise.

I end with the hopeful note that future “masters” at the helm run a tighter ship, not only in transparent selection of cases to be heard by larger benches and their composition, but also in ensuring dialogue between the judges of larger benches and in making judgments shorter and possibly, more accessible. Judges, even those hailed as the most progressive, would do well to introspect about how best they could, sitting in their ivory tower, speak to us, the laypersons, about matters that affect our very existence.