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[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


Previously on this blog, I had written (here and here) about the problematic composition of the Constitution Bench in the ongoing case involving the interpretation of the Land Acquisition Act. As readers know, parties before the Court had argued last week asking for the recusal of Justice Arun Mishra from the bench. Orders had been reserved after hearing, and a judgment was delivered yesterday, refusing recusal. Now, given that five-judge bench of the Supreme Court had already transformed the proceedings from a legal hearing into theatrics, with Justice Mishra remarking (without contradiction) that it would be “the blackest chapter in history”* if the bench would “succumb”, it is unclear why the bench needed to undertake the farcical exercise of reserving an order than writing out a judgment over the weekend, when minds had apparently been made up at the hearing itself. However, the fact is that a judgment has now been delivered, and must therefore be analysed.

As a prelude to the analysis, I had noted in my previous post that various accusations had been made in court that a “lobby” was writing articles about recusal in order to malign the Chief Justice and the Supreme Court. Unfortunately, these accusations have now found their way into a recorded judgment. At paragraph 11 of the judgment, Justice Mishra notes the Solicitor-General’s submission that ” a tendency is growing in that as soon as important matters are listed, particular articles are written in the newspapers concerning the Constitution of the bench or to influence the decision on merits of a case. Newspaper articles are written to influence Court. The very independence of the judicial system is at stake…” In paragraph 36, he writes that “affronts, jibes, and consciously planned snubs should not deter us from discharging our onerous responsibility (emphasis supplied) In paragraph 39, he writes that “in Bal Kishan Giri v. State of Uttar Pradesh, (2014) 7 SCC 280, this Court has considered derogatory remarks and efforts to destroy the system.” And in their concurring opinion, four other learned Justices write that they agree with Justice Mishra’s “reasoning and conclusion.” One also notes that during oral arguments, Justices Mishra and Saran had made similar remarks, and none of the other judges on the bench had disagreed.

To this one can only say: if indeed there is a “lobby” engaging in “consciously planned snubs” to “destroy the system”, then this is a very serious matter indeed. Nobody can be permitted to “destroy the system.” Attempts to do so would constitute contempt of court. Now presumably, evidence for the existence and actions of this “lobby” exists, because five learned judges of the Supreme Court would surely not make or endorse such claims without evidence. That being the case, the problem would swiftly be resolved by the issuance of a formal notice of contempt to these unnamed “lobbyists”, so that the evidence for their “lobbying” could be exposed in a public hearing.

Now, on to the law: the facts leading up to these proceedings have been set out in my two previous posts, and I will not repeat them here. The key conceptual error that Justice Arun Mishra’s recusal judgment makes can be found in paragraph 11:

The first question before us is whether a Judge who has expressed an opinion in a smaller Bench and the case has been referred to a larger Bench, because of the conflict of the opinion or otherwise, can hear the matter in a larger bench.

It is almost trite to say that the answer you get depends upon the question you ask. The framing of the issue conflates three distinct situations that are, nonetheless, distinct in critical ways. The first situation is when, after the passage of time, a court is prompted to reconsider an earlier verdict that it had delivered. The second is a situation where a smaller bench, on a prima facie examination of binding precedent, makes a “referral” to a larger bench to reconsider it. And the third is a situation where within the same court, there are contrary judgments existing at the same time that require to be settled one way or another. These three situations – as I have argued in my previous posts – also need to be understood within a broader institutional framework: does the court normally sit en banc (all the judges sitting together), and therefore – for all practical purposes – speak at all times within one institutional voice, or does it (like our court) sit in multiple different panels of judges? Note that the first two situations outlined above could occur within either institutional form, while the third is limited to a court (like ours) where thirty-four judges divide themselves into numerous panels of two or three.

The problem with Justice Mishra’s framing, then, is that all his examples that follow after paragraph 11 correspond to either situation A or situation B. For example, his first example – the overruling of the five-judge bench decision in United Motors (1953) by a seven-judge bench in Bengal Immunity (1955) is an example of situation A. At that time, the Supreme Court had eight judges. An issue was decided one way in 1953, and then decided another way in 1955, with two of the judges who had sat in the first case also sitting in the second; in the first case, a majority of the court participated in the judgment, whereas in the second case, it was effectively an en banc judgment. This, therefore, was an example of the Court as an institution changing its mind about the correctness of its earlier ruling. Similarly, his second example – that of the two-judge bench order in Ujagar Prints, which doubted the correctness of the judgment in Empire Industries – is one of referral: there is existing precedent, another bench – on a prima facie examination – proposes a second look at the issue, and the question is referred to a larger bench for resolution. Justice Mishra points out that Justice Sabyasachi Mukherji, who was party to the judgment in Empire Industries, was also on the five-judge bench that reheard the issue. The issue there, however, was that Empire Industries held the field as good law: a referral does not displace or set up contrary precedent that needs to be adjudicated upon. In that sense, therefore, examples under situation B come within the same broad framework as situation A – that of an institution, acting as an institution, reviewing one of its earlier decisions.

A number of examples follow that – as discussed above – fall either within situation A or situation B. In each of these examples, Justice Mishra’s analysis is limited to pointing out that there were a few common judges in both the earlier decision, and the later decision. This is evident from his observation in paragraph 21, where he notes:

This Court has observed that law should be settled permanently and that it should be settled correctly. There may be circumstances where public interest demands that the previous decision be reviewed and reconsidered. Thus, it is apparent that this is the consistent practice of this Court that Judges who had rendered the earlier decision have presided over or been part of the larger Bench.

It is telling that in all of Justice Mishra’s list of relevant precedent, which ends at paragraph 22, there is not one case that is actually on all fours with the present situation: a situation where at the same time there existed two conflicting judgments delivered by different judges, sitting in benches of equal strength, and where the latter had declared the former to be per incuriam. In my previous posts, I have explained why this distinction matters fundamentally – an explanation that I will get back to a little later.

After paragraph 22, Justice Mishra cites a range of judgments on judicial bias that have no application to the present issue. It is unclear, for example, what relevance an American judgment stating the same judge should complete a trial despite showing signs of predisposition through the its course has to do with the controversy here – or another judgment that states that it is “desirable to have the same judge in successive causes.” In any event, after having cited these cases, Justice Mishra then comes to the substantive part of his judgment. In paragraph 27, he notes that:

There may not be even one Judge in this Court who has not taken a view one way or the other concerning Section 24 of the Act of 2013, either in this Court or in the High Court. If the submission is accepted, no Judge will have the power to decide such a matter on the judicial side. We have to deal with the cases every day in which similar or somewhat different questions are involved concerning the same provision. For having taken a view once, if recusal is to be made, it would be very difficult to get a Judge to hear and decide a question of law. We have to correct the decision, apply the law, independently interpret the provisions as per the fact situation of the case which may not be germane in the earlier matter. A judgment is not a halting­place, it is stepping stone. It is not like a holy book which cannot be amended or corrected. It may also work to the advantage of all concerned if a Judge having decided the matter either way is also a member of the larger bench. A Judge who had rendered any decision in a smaller combination is not disqualified from being part of a larger Bench when a reference is made to the larger bench. Rather, it is a consistent practice prevailing in various High Courts as well as of this Court to include the same Judge/Judges in larger Benches.

But it should now be clear that this is a mischaracterisation of the issue, because the dispute is not about whether a judge has “taken a view” on what Section 24 of the Land Acquisition Act says, or the parade of horribles that Justice Mishra trots out in this paragraph, and the ones that follow: bench-hunting, forum-shopping, etc. etc. The issue is a very narrow and simple one, that deserves to be spelt out once more: this is not a case where the institution is reviewing its earlier judgment, or deciding on a referral where a judge – on a prima facie reading – calls for a reconsideration. This is a case where a three-judge bench ruled one way on Section 24. Then another three-judge bench – headed by Justice Mishra and over the dissent of Justice Shantanagouder – held it to be per incuriam and set up its own contrary reading of Section 24. Note that Justice Mishra in that judgment did not simply express doubt about prior precedent and refer it for a fuller reconsideration (which is the normal practice). He overruled that judgment by effectively holding that it had no force in law. Not only did this go against established principles of stare decisis and judicial discipline, where you are not supposed to overrule a judgment that is binding upon you, but it also set up two conflicting lines of precedent within the same court at the same time – and it was that precise issue that the third three-judge bench was considering the day after Justice Mishra’s ruling, when the question was referred (by Justice Mishra) to the Chief Justice. It is telling that in a sixty-two page long judgment, Justice Mishra is unable to provide a single precedent – from India or from abroad – that has similar facts, and in his reasoning, he makes no reference whatsoever to this crucial point.

And the distinction matters. It matters in a polyvocal Court of thirty-four judges, where small panels hear issues on the same legal point, and return conflicting findings. All of Justice Mishra’s precedents and arguments are based upon the vision of the court acting as a unified institution, with internal mechanisms for reviewing and rethinking its previous decisions. However, you cannot eat your cake and have it too: a unified institution does not have a situation where oppositional lines of precedent are generated at the same time, and require further resolution between them. As someone pointed out: this situation is akin to Examiner A failing a student, Examiner B passing him, and the answer-script being sent back to Examiner A to “resolve” the conflict. Yes, Examiner A might be persuaded to change his mind. But that, it should be obvious, is hardly the point. It is for this reason that I had noted in the previous post that:

In India, however, we have a situation where within the highest judicial body, the existence of a multiplicity of judicial panels undermines institutional coherence, and creates a situation where the apex Court is effectively disagreeing with itself. This is what has happened in the present case: abstracting for a moment from the thicker context, what has happened is that two three-judge benches of the Supreme Court have taken diametrically opposite views on the same issue. Now the existence of thirty-four judges on the Supreme Court means that there is a ready solution to hand: send the issue to a bench that has a higher number of judges, in order to “resolve” the conflict.

Shorn of the legalese, what this effectively means is that within the highest judicial body, there is an internal appellate mechanism to deal with the problem of institutional incoherence, flowing from the Court’s unique structure. I use the word “appellate” in its ordinary sense; it is, obviously, not an “appeal” as that word is defined under Indian law, but it is basically a sui generis response to a situation where even within the apex Court, there are situations when conflicting views require a resolution in the interests of institutional coherence.

Once we understand this, however, it becomes clear that if the same judge is going to be present at both stages of the process, then this form of resolution becomes pointless. This is why it is important to understand Mr. Shyam Divan’s argument that what this effectively amounts to is a judge adjudicating upon the correctness of his own judgment in “collateral” proceedings; it is not formally an appeal, but in every significant respect, these latter proceedings are doing the work of an appeal. The source of the confusion is that – for understandable reasons – we continue to think of the Supreme Court as a unified body that speaks in one institutional voice, while the reality has moved very far away from this. A more accurate analogy would be with the European Court of Human Rights, where the same Court is divided into a “Chamber” and a “Grand Chamber.” Chamber judges and Grand Chamber judges are drawn from the same overall pool of ECHR judges: “The Grand Chamber is made up of the Court’s President and Vice-Presidents, the Section Presidents and the national judge, together with other judges selected by drawing of lots.” But: “When it hears a case on referral, it does not include any judges who previously sat in the Chamber which first examined the case.” (Emphasis Supplied)

Needless to say, this point finds no mention in Justice Mishra’s judgment. It also finds no mention in a brief concurring opinion penned by the other four judges – Benerjee, Saran, Shah and Bhat JJ – who repeat the same fallacy when they observe in paragraph 5 that: “We notice that his order has cited several previous instances where judges who rendered decisions in smaller bench compositions, also participated in larger bench formations when the reasoning (in such previous decisions) was doubted, and the issue referred to larger benches, for authoritative pronouncement.”

A final point needs to be noted. As Suhrith Parthasarathy noted at the time, there was a crucial issue of judicial discipline and respect for stare decisis in the manner in which Justice Mishra delivered the Indore Development Authority judgment. Holding a binding three-judge bench judgment to be per incuriam, effectively overruling it, and also overruling at one stroke seventeen Supreme Court judgments that had followed it – instead of doing things the normal way and making a referral – all raised serious questions about the functioning of a polyvocal court. It was precisely those issues that the three-judge bench intended to consider when this judgment was brought to its attention the next day – a process that was stalled when the case was referred to the Chief Justice. The recusal order makes it clear that those issues now stand buried. If henceforth, however, it is open to coordinate benches to overrule each other through declarations of per incuriam – and then for the Chief Justice acting as the Master of the Roster to in effect assign the case to judges who have been on one side through his powers of bench composition – then what we are looking at in the future is a factionalised court, where judicial decisions fall hostage to internal power struggles and bench-formation imperatives. There is indeed a potential parade of horribles in store – but it has nothing to do with bench hunting and forum shopping, and everything to do with the institutional integrity of the Supreme Court.

 


*”Blackest chapter”? Blacker than ADM Jabalpur? Blacker than Koushal v Naz? There is a lot of blackness down that particular road, and such overwrought hyperbole from the bench does nobody any favours – least of all “the system.”