Guest Post: On the Unlimited Power of Review in Writ Proceedings

[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 a former 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.]


[This is a guest post by Krishnesh Bapat.]


In this belated post, I discuss the judgment of the Supreme Court passed in Kantaru Rajeevaru vs Indian Young Lawyers Association on 11th of May 2020 (For the sake of convenience, hereinafter referred to as 11th May order). In this order, a 9 Judge bench of the Supreme Court has detailed the reasons for holding that questions of law can be referred to a larger bench in a review petition. I specifically focus on the part of the order wherein the bench has held that there are no limitations on the Supreme Court in reviewing judgments in writ proceedings. The consequence of this ruling is that review petitioners in writ proceedings do not have to meet the high threshold of Order XLVII Rule 1 of the Code of Civil Procedure (“Code”). Order XLVII Rule 1 of the Code permits review of judgments only if there is discovery of new evidence or an error apparent on the face of the record or any other sufficient reason which is analogous to the first two. Indeed, parties have begun to rely on this order already. It is noteworthy to look at the brief written submissions of the review petitioners in Shantha Sinha and Another vs Union of India and Another. The review petitioners are seeking a review of Justice K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1. In their brief written submission they have pointed out that the Court is not hindered by Order XLVII Rule 1 of the Code. In Paragraph 7 they state:

A 9-Judge Constitution Bench of this Court in its Judgment dated 11.05.2020 in the case of Kantaru Rajeevaru v. Indian Young Lawyers Association and Ors, Review Petition (C) No. 3358/2018 in WP (C) No. 373/2006, while considering the maintainability of the reference, has held that in review petitions arising out of writ petition, this Court under Article 137 read with Article 141 and 142, has wide powers to correct the position of law. It further held that this Court is not hindered by the limitation of Order XLVII Rule 1 of the Code of Civil Procedure, 1908, since writ petition are not ‘civil proceedings’ as specified in Order XLVII Rule 1 of the Supreme Court Rules, 2013

In view of this, it is necessary to analyze the order.

BACKGROUND

Before I begin a critique of the 11th May order, a recap of the ‘Sabarimala Dispute’ and a background of how the 9-Judge bench came to arrive at the aforementioned conclusion is necessary. Indian Young Lawyers Association had filed a Writ Petition challenging the validity of Rule 3(b) of the Kerala Hindu Places of Worship (Authorization of Entry) Rules, 1965 and sought directions to State of Kerala to permit female devotees between the ages of 10 to 50 years to enter Sabarimala temple without any restriction. The case was titled Indian Young Lawyers Association vs State of Kerela (Indian Young Lawyers Association”). On 28th September 2018, by a majority of 4:1 the Supreme Court allowed the Writ Petition and held inter alia that Rule 3(b) was violative of Article 25(1) of the Constitution of India ( Accordingly, women between the ages of 10 to 50 years were permitted to enter the Sabrimala temple.

A number of review petitions and writ petitions were filed against this Judgment. On 14th November 2019, a Judgment in these review petitions was pronounced and was titled Kantaru Rajeevaru vs Indian Young Lawyers Association (“Kantaru Rajeevaru”). In Kantaru Rajeevaru the Judgment in Indian Young Lawyers Association was not stayed. However, a majority of three judges was of the view that the Court should ‘evolve a judicial policy’ and a larger bench of not less than seven judges should put at rest the conflict between Freedom of Religion and other Fundamental Rights guaranteed in Part III. Hence, the majority referred seven issues to a larger bench and stated that the review petitions and the writ petitions were to remain pending while the larger bench decides the reference. Nariman J and Chadrachud J dissented and held that neither were grounds for review made out nor was a reference to a larger bench called for (Kantaru Rajeevaru has been previously critiqued on this blog).

A bench of nine judges was thereafter constituted to answer the reference. When the hearing before the nine judge bench began, a number of parties raised an objection to the reference. They contended that the review petitions in Kantara Rajeevaru were not maintainable because of the limitations in Order XLVII of Supreme Court Rules and hence, the reference arising out of those review petitions was bad. In the alternative, they submitted that reference to a larger bench is permissible only after review is granted. They also contended that hypothetical questions of law should not be referred. On 10th February 2020, the 9 Judge bench dismissed these contentions and through the 11th May order the bench has provided their reasons. The reasoning of the bench in the 11th May order proceeds in the following manner. The bench firstly referred to Order XLVII Rule 1 of the Supreme Court Rules, 2013 (Paragraph 11), which states:

The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule I of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

By a literal interpretation of this rule, the bench held that the power to review judgments is plenary and limitations exist only in the context of civil proceedings and criminal proceedings (Paragraph 12). Writ Petitions filed under Article 32 of the Constitution do not fall within the purview of civil and criminal proceedings (Paragraph 14). The review petitions in Kantaru Rajeevaru had arisen from a Writ Petition under Article 32. (Paragraph 18). The bench then dismissed the alternative submission of the parties that reference can only be made after grant of review citing Order VI Rule 2 of Supreme Court Rules, 2013 and Article 142 of the Constitution (Paragraph 19 to 25). The bench then proceeded to hold that pure questions of law could be referred to and answered by a larger bench (Paragraph 25 to 29). Then in Paragraph 30 the bench concluded that the review petitions and the references arising from the review petitions were maintainable.

CONCERNS

In this post, I am primarily concerned with the observation made in Paragraphs 11 to 18 and the conclusion drawn in Paragraph 30 that the review petitions are maintainable. There are three concerns I have with the 11th May Judgment which have been detailed below.

Firstly, there is the question of judicial propriety. In Kantaru Rajeevaru, a majority of three judges had referred questions of law to a larger bench while keeping the review petitions pending. They had not commented on the maintainability of the review petitions nor had they referred the question of maintainability to the larger bench. Therefore, strictly speaking, the nine judge bench by holding that the review petitions are maintainable, seems to have traversed beyond its brief and decided an issue pending before the 5 judge bench. The consequence of this ruling is that once the 9 judge bench does evolve a ‘judicial policy’ and the ‘Sabarimala dispute’ is sent back to the 5 Judge bench, that bench will not be able to decide on the maintainability of the review petitions. It is crucial to note that 2 judges of the bench in Kantaru Rajeevaru (Nariman J and Chandrachud J) had held that the grounds for review were not made out. More crucially, the majority had not commented on the maintainability of the review petitions.

Secondly, the manner in which the review petitions were held to be maintainable is also concerning. The bench has perhaps justifiably held that there are no express limitations on the power to review except in the context of civil and criminal proceedings. However, that ipso facto does not mean that review petition in Kantaru Rejeevaru should be admitted. In a catena of judgments over the years, the Supreme Court has repeatedly insisted that the power to review must be exercised sparingly. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, (1980) 2 SCC 167, for himself and Tulzapurkar, J. observed:

……Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”Sow Chandra Kantev. Sheikh Habib [(1975) 1 SCC 674 : 1975 SCC (Tax) 200 : (1975) 3 SCR 933] .

The 9 Judge bench throughout its 29 Page decision has not pointed out the ‘patent mistake’ or a ‘grave error’ that has been committed by the majority of 4 judges in Indian Young Lawyers Association that their judgment must be reviewed. On the other hand Nariman J in Kantaru Rajeevaru had painstakingly analysed all the judgments in Indian Young Lawyers Association, applied the standards of review and held that the grounds for review were not made out.

This leads me to my third concern. The 9 judge bench decision does not provide for any standards which the Court ought to apply while deciding whether to review a judgment arising out of writ proceedings. In the past the Court has applied standards similar to Order XLVII Rule 1 of the Code. For instance, in Sarla Mudgal vs Union of India (1995) 3 SCC 635, 4 Writ Petitions were filed questioning whether a husband, married under Hindu law, can solemnise a second marriage by embracing Islam and without dissolving the first marriage under law. The Court held that in such cases a second marriage would be invalid. In Lily Thomas vs Union of India (2000) 6 SCC 224, petitions were filed seeking review of the decision in Sarla Mudgal. R.P Sethi J, in his concurring judgment, put the contentions of the review petitioners to the standards Order XLVII Rule 1 of the Code and held:

Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order 47 of the Code of Civil Procedure has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal case [Sarla Mudgal, President, Kalyani v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569]. It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal case [Sarla Mudgal, President, Kalyani v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] . We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words “any other sufficient reason appearing in Order 47 Rule 1 CPC” must mean “a reason sufficient on grounds at least analogous to those specified in the rule” as was held in Chhajju Ram v. Neki [AIR 1922 PC 112 : 49 IA 144] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] . Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law. In T.C. Basappa v. T. Nagappa [AIR 1954 SC 440 : (1955) 1 SCR 250] this Court held that such error is an error which is a patent error and not a mere wrong decision…….

Therefore, it can safely be held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order 47 Rule 1 CPC for reviewing the judgment in Sarla Mudgal case [Sarla Mudgal, President, Kalyani v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] . The petition is misconceived and bereft of any substance.

 

 Indeed, as mentioned above, Nariman J in Kantaru Rajeevaru also put the contentions of the review petitioners through similar standards. The 9 Judge bench, however, by not undertaking such an exercise, has raised questions of what exercise ought to be undertaken. The judgment on a number of occasions has stated that Order XLVII Rule 1 of the Code is inapplicable to judgments arising out of writ proceedings. If that is the case, there needs to be clarity on the applicable standard. The need of having a standard cannot be understated. Order XLVII Rule 1 of the Code has ensured that there is a finality to judgments delivered by Court and at the same time has provided a mechanism to ensure that injustice is not committed. In absence of this Rule, any party dissatisfied with the decision of the Court will seek a re-hearing and the litigation will be endless.

CONCLUSION

To sum up, three concerns with the 11th May Judgments have been pointed out above. The first pertains to which bench was the most suited to address the question of maintainability. The second concern points out the lackadaisical manner in which the 11th May Judgment holds the Kantaru Rajeevaru review petitions to be maintainable. And lastly, the third concern raises a question for the future as there needs be clarity on the manner in which the Apex Court is going to entertain review petitions.

The Supreme Court, Convenient Emotions, and the Heckler’s Veto

[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 a former 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.]


Last month, I had written that the Supreme Court’s “review” order in the Sabarimala Case was a strange one. The Court passed an order in flagrant disregard of the parametres of review jurisdiction (errors apparent on the face of the record, or an equivalent injustice), and referred some “questions” to a future seven-judge bench on the basis that they “may” arise in some other cases involving civil rights and religion, presently pending before the Court. I ended by noting that the order neither referred the correctness of the Sabarimala judgment itself, and nor did it stay the judgment. In law, therefore, the judgment continued to hold the field undisturbed.

In the aftermath of this “review” order, certain women attempted to pray at the Sabarimala shrine, but were advised by the police to turn back from the base of the hill, as no protection would be provided to them. This came on the heels of an opinion by the Advocate-General of Kerala, who cited the “review” order to argue that there was no obligation upon the State to enforce the judgment. In response, the women in question filed a petition before the Supreme Court for enforcement of its own judgment.

Now, the law on this should be clear. There exists a judgment of the Supreme Court. That judgment has not been stayed. The “review” order found no error in the judgment, and indeed, did not even refer the correctness of the judgment to a larger bench. There can be little doubt, then, that the judgment holds the field, and must be enforced by all parties.

An account of yesterday’s hearing before the Chief Justice’s bench reveals, however, that – not for the first time – the basic law we thought we learnt in the first year of Law School was a fiction. The Chief Justice refused to pass any order on the petition, and provided the following reasons for (not) doing so: first, that “this is an age old practice going on for thousands of years. Balance of conveniences requires that order should not be passed in your favour now. The matter is under reference and if it is ultimately decided in your favour, we will protect you“; secondly, that “it’s an emotive issue. Please be patient. We are not saying don’t allow her to go in, but we are not looking to pass any order right now”; and thirdly, “we know that the law is in your favour … however we’re using our discretion and will not be passing any order.”

Let us take each of these three justifications in turn. The first is utterly bewildering, as the Chief Justice appears to have conflated the beginning of the legal process (application for injunction) with its end (application for enforcement). The question of “balance of convenience” arises when a suit has been filed, and the plaintiff asks for interim relief pending a final decision. At that point, the Court asks which way the “balance of convenience” would lie – and on that basis, passes an order that holds the field until it finally decides the case. “Balance of convenience”, however, has nothing – nothing – to do with a case when it has already been decided after a detailed hearing, and the petitioner is only asking for its enforcement! At that point, the question of “convenience” doesn’t even arise, as the rights of the parties have already been settled according to law.

Of course, the Court’s reasoning on “balance of convenience” is equally troubling – not only does it appear to have arrived at this “balance” without a proper hearing on the subject, but also seems to have given no weight to the contrary rights at issue (apart from saying “be patient.”) The situation is starkly reminiscent of an incident recounted by Anupama Rao, in her book, Caste Question. In a 1927 case involving access to a village water-tank (which was placed off limits to Dalits), an injunction was granted to the upper castes on the basis that “if the injunction had not been granted and the suit decided in favour of the ‘touchables’ they will be put to considerable expense and inconvenience for ‘purifying’ the tank; while in the existing circumstances, if the untouchables win the suit the only effect will be to prolong by a year or so the oppression that has lasted centuries.” Readers will notice that even this atrocious order passed by a colonial judge seems to have more reasoning than the oral observations of the Bench in yesterday’s proceeding – not to mention that this was actually a case for an injunction where “balance of convenience” actually had some application, instead of a case for an enforcement. It is an open question whether we have progressed from 1927 – or indeed, whether we have regressed.

And lastly, what is even more problematic about this observation is that the question of whether the practice of excluding women from the Sabarimala temple did have the sanction of antiquity is itself a contested question; there was evidence both for and against the provenance of the practice, and the original judgment(s) in Sabarimala acknowledge this divergence of views. For the Chief Justice, therefore, to blithely state that the practice has been going on for “thousands of years” comes dangerous close to pre-judging the merits of that case, if indeed the case is going to be re-opened.

The second justification offered by the Chief Justice is, of course, both bewildering and alarming. What does the “emotiveness” of the issue have to do with anything at all? Since when do emotions operate as injunctions upon decided judgments? And more importantly, whose emotions count? Just a few months ago, when there were protests against the Supreme Court’s decision on the demolition of the Ravidasa Temple in Delhi, the Court responded thus: “Everything cannot be political. Our orders can’t be given a political colour by anybody on earth” and “don’t speak a word and don’t aggravate the issue. You are in for contempt. We will haul up your entire management. We will see what has to be done.” Where was the Court’s touching solicitude for emotions back then? And how many times has the Court otherwise told aggrieved parties that, like it or not, they need to lump it when it comes to obeying judgments? Is it the case that emotions acquire a particular force when they are backed up by organised and systematic violence? The Chief Justice’s reference to avoiding violence during the hearing suggests that; but if that was the case, then it is nothing more than the heckler’s veto replacing the rule of law: your emotions will be given sanctity by the Court if you are strong enough to express them violently. But if you’re too weak to be violent, or just law-abiding, then, well, you do indeed have to lump it. This is a strange stance to take for the “most powerful Court in the world” and the “last refuge of the oppressed and the bewildered.”

And it is the third justification that really puts a seal on things: because the Chief Justice admits – he actually admits – that the law is indeed in the applicant’s favour (there is a judgment, and no stay). Despite that, he says that the Court will use its “discretion”, and pass no orders. But what sort of discretion is this, exactly? The discretion to refuse to one’s own judgments? The discretion to say that the judgments of  the Supreme Court are binding on all courts in the territory of India under Article 141 of the Constitution – but that Supreme Court benches themselves need not be bound to enforce them? It is very clear that there is no legal or judicial basis for this peculiar exercise of discretion: the only justifications that there are go back to the first two points discussed above.

Consequently, yesterday’s proceedings and order heap yet another irregularity upon the original sin that was the “review” order. To an external observer, it seems rather obvious that the Supreme Court now regards the original Sabarimala judgment as a millstone around its neck, and would evidently be rid of it. But to get there, it is undermining its own authority as well as the rule of law to a remarkable – and alarming – degree: reopening judgments in review jurisdiction without finding any “error” and then invoking “discretion” to decline to enforce judgments that hold the field. The question is no longer really about whether the original judgment was right or wrong, or whether the Court will now find a way to reverse it (it appears apparent that it will); the question is whether the damage that has been caused along the way will have been worth it – and whether this is now a Court that can regularly be held hostage to the heckler’s veto.

 

 

 

Addendum: The Concept of “Bias” in a Polyvocal Court

[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.]


It is important to begin this post with a clarification. Yesterday, I wrote a blog post pointing out that the composition of the Constitution Bench scheduled to hear the case concerning the interpretation of S. 24 of the Land Acquisition Act raised some important issues, specifically concerning the powers of the Chief Justice as the “Master of the Roster.” The post was one among many public interventions that raised similar questions about the Bench. During the hearings of the case today, it is reported that Justice Mishra observed that “there are attempts in the media and social media to “malign” the institution by raising questions about the bench and CJI’s decision.” Solicitor-General Tushar Mehta agreed, and stated that “there is a pattern here, where a few days before a major case is heard, things are written on social media or web magazines raising certain objections, that are intended to influence the proceedings.” Another judge on the bench, Justice Vineet Saran, agreed with him.

As two Justices of the Supreme Court, and the Government’s second-highest ranking Law Officer have seen fit to hold forth from the bully pulpit against nameless “critics”, a few points need to be made in response, in addition to what has already been pointed out by Nitin Sethi. The first is that the composition of the Bench was made public this Saturday. The hearing was scheduled for today. Unless the Solicitor-General believes that critics of the Court had divined the composition of the Bench in advance, and were only keeping their powder dry until it was formally announced, the only time that these objections could possibly have been raised was between Saturday and Tuesday, i.e., “a few days before the hearing.” Secondly, the Supreme Court is a public institution in a democratic republic, that is committed to the principle of open justice. That the Court’s conduct will be subjected to rigorous public scrutiny is exactly how it should be. Critics of the Court put their names to what they write, take responsibility for their writing, and set out their arguments (along with the grounds on which they are based) openly and in the public domain, which is exactly how it is supposed to happen in a democracy. The critics are, in fact, considerably more transparent than the subject of discussion, which is the allocation of benches by the Chief Justice – a process that is entirely opaque and discretionary. And thirdly, the only pattern that is visible here is Supreme Court judges’ reaction to public scrutiny by shielding themselves in a cloak of defensiveness and self-righteousness, where we go straight from criticism to a “maligning” of the institution (and, by extension, an equation of individual judges with “the institution”). Readers will recall that this was exactly the reaction at the time of sexual harassment allegations against the Chief Justice – a reaction that, again, was supported by the highest law officers of the government.

With these preliminary points out of the way, I want to focus on one specific issue that was raised during oral arguments today: the issue of deciding bias. The issue arose out of the petitioners’ request that Justice Arun Mishra recuse himself from hearing the case. Much of the questioning on this point was led by Justice S. Ravindra Bhat; in particular, drawing on precedent from common law countries, Justice Bhat made a distinction between “pecuniary bias”, “personal bias”, and “intellectual bias”, and questioned whether “intellectual bias” alone was sufficient ground for a recusal; he also observed that in Indore Development Authority, Justice Mishra had only expressed a “view”, and could – in theory – be persuaded to change his mind. Senior Counsel Shyam Divan’s response to these questions can be read here, but in this post, I want to make a separate point: questions of bias and recusal cannot be adjudicated without paying close attention to the unique nature of the Indian Supreme Court as an apex Court: that is, its polyvocal character. To directly copy standards of bias that have been evolved in common law jurisdictions – as Justice Bhat’s line of questioning suggests – without paying attention to the Indian Supreme Court’s institutional character, is to essentially be making a category mistake.

Almost uniquely among the major English-speaking Apex Courts of the world, there exists in the Indian Supreme Court a massive numerical difference between the strength of the Court (34 judges) and the strength of benches hearing day to day cases (2 or 3 judges). The US Supreme Court, for example, sits en banc (as a full Court) of nine Justices. The South African Constitutional Court sits en banc for the most part as well. The UK Supreme Court has twelve judges, that often sit in panels of five (but can also sit en banc or close to it for important cases, such as the recent prorogation judgment). Similar situations exist for the apex courts of Kenya, Canada, New Zealand, Australia. What this means is that these apex Courts possess an institutional coherence: judgments can be fairly said to express a “view of the Court” (as an institution). And if you want a judgment of the apex Court to be set aside, you have to – effectively – convince the same body to go back on its earlier view.

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 significantrespect, 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)

The issue, therefore, is not – as Justice Bhat’s line of questioning suggests – about how we are to understand “bias” from common law precedent. The issue is an institutional one: if what we now have is a situation where the Supreme Court has thirty-four judges, hears cases in panels of two or three that end up disagreeing with each other, and the resolution to that disagreement is by a panel of larger strength, then it is clear that the only way if this system is to work at all is if the latter panel has fresh judges. The alternative – that the same judge (or judges) sit on the larger bench borrows from two incompatible worlds: the problem is caused because of our poly-vocal Court with its thirty-four judges, but the solution comes from a world in which there is still one institution that automatically speaks with one voice.

And of course, it is here that the role of the Chief Justice – as “Master of the Roster” – is a crucial one, as discussed in the last post; and it is here that the need for standards that guide that discretion in the establishment of benches become so crucial. The establishment of these standards, it bears repeating, is not because people are out to “malign” the Chief Justice, but to ensure that the uncanalised discretion that opens up the Chief Justice to malignant accusations is actually subjected to public and democratic norms.


[Disclosure: The author clerked with Justice Bhat (as he then was) at the High Court of Delhi, in 2014.]

 

Guest Post: Constituting Constitution Benches: The Dipak Misra year(s)

(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.

Ends Without Means, Outcomes Without Reasons: A Look Back at Dipak Misra and the Constitution

Dipak Misra is no longer the Chief Justice of India.

It would be fair to say, I think, that his Chief Justiceship has been controversial. From the famous judges’ press-conference, to the “master of the roster”, to the impeachment effort, a significant part of the controversy has been political. On this blog, I have covered some of those events. I have written, for example, about how CJI Misra constituted a bench to hear a case that indirectly implicated himself in criminal conduct, thus violating the cardinal “no person shall be a judge in her own cause” principle. He has also presided over benches that have pronounced judgments dealing with the powers of the Chief Justice, while he was Chief Justice. There have been issues, as well, with disposing off cases without issuing notice or pleadings (Judge Loya), granting restitution in bail petitions (Unitech), or quashing a chargesheet against M.S. Dhoni in Andhra Pradesh in a challenge against a complaint registered in Karnataka.

In this essay, however, I will not discuss any of that. The political legacy that CJI Misra leaves behind is being debated, and will be debated in the years to come. Nor shall I discuss his judgments in terms of their outcomes: there has been enough of that on this blog, and it will be for future scholars to place his judgment in Navtej Johar and his signing on to the Majority in Aadhaar alongside each other, and ask themselves how they stack up.

What I will do in this essay is situate CJI Misra in the broader context of his role as a judge in a constitutional court. My argument will be this: CJI Misra’s judicial tenure represents the high-water mark of a tradition in the Supreme Court that can be described as “outcome-oriented.” This tradition, which (arguably) had its beginnings in the 1980s, calls upon judges to use their power to do (what they perceive to be) “substantive justice”, even where the legal system has itself put checks and constraints upon the exercise of that power. These checks – statutory texts, judicial precedent, the separation of powers, doctrines of jurisdiction and maintainability, and above all, the giving of reasons for an outcome –  are treated as inconveniences to be negotiated rather than principles to be respected. And all of this is justified by nice-sounding – but intellectually vapid – catchphrases such as “procedure is the handmaiden of justice.”

CJI Misra’s tenure represents – as I said – the high-water mark of this tradition. In his judgments, legal constraints are devalued to such an extent, that we reach a near-vanishing point. If earlier we had ends at the cost of means and outcomes privileged over reasons, in CJI Misra’s judgments, we find ends without means and outcomes without reasons.

I should clarify – once again – that this is not a dispute over outcomes. I find CJI Misra’s judicial instinct on social and gender rights – as reflected by his judgments in 377, Adultery, and Sabarimala – to chime with my own. At the same time, I disagree strongly with his instinct on free speech. But that is not the point. The point is whether the manner in which CJI Misra reaches these outcomes – which we may agree or disagree with – is consistent with a democratic set-up that prizes the rule of law over the rule of judges. I believe that it is not, and I shall attempt to demonstrate that in the examples that follow.

Ignorance of statutory text: The Make-Up Artists Case

In November 2014, Misra J (as he then was) struck down a clause of the Cine Costume Make-Up Artists and Hair Dressers Association bye-laws that prohibited women from becoming members. This was immediately hailed as a landmark judgment for gender rights. Importantly, however, the Association was a private body, that had the right to frame its own regulations. To strike down the bye-laws, therefore, Misra J had to find a way of holding that the constitutional norms of Articles 14, 15(1) and 21 were applicable even between private parties.

How did Misra J do this? He noted that the Trade Unions Act – under which the Association was registered – required that “any person who has attained the age of fifteen years” was entitled to be a member of a registered Trade Union. He then argued that as the Act did not make a distinction between men and women, the Association could not – through its bye-laws – introduce such a distinction.

This is impeccable reasoning, except for one fact. Section 21 of the Trade Unions Act – which Misra J. quoted and relied upon – is about the rights of minors to membership of Trade Unions, and the full text states:

Any person who has attained the age of fifteen years may be a member of a registered Trade Union subject to any rules of the Trade Union to the contrary, and may, subject as aforesaid, enjoy all the rights of a member.

As you can see, the underlined portion knocks the bottom out of the argument. It is not that “any person who has attained the age of fifteen years” is entitled to membership of any Trade Union; her entitlement is subject to the rules of the Trade Union, which, of course, were what the Respondents were relying upon in the Make-Up Artists Case.

There is a larger debate to be had about private discrimination, especially when that discrimination is carried out by associations that have near-monopoly power in an industry. Misra J. could very well have reached his conclusion on constitutionally justifiable grounds. But he didn’t do so. Instead, he took a statutory text, relied upon the part that suited him, snipped out the part that didn’t, and got his answer. That will not do.

Ignorance of precedent: The Devidas Tuljapurkar Case 

In Devidas Tuljapurkar, Misra J (as he then was) was considering a plea for quashing charges of obscenity with respect to a poem called “Gandhi Mala Bhetala” (‘I Met Gandhi’), published in 1994 and meant for private circulation among the employees of the All India Bank Association (the SLP was filed by the publisher). Misra J. rejected the plea, and in doing so, invented an entirely new standard for adjudicating obscenity claims: the threshold, he ruled, would be higher in the case of “historically respectable personalities.”

I use the word “invented” with due care. Where did the phrase “historically respectable personalities” pop up from? It is not there in Section 292 of the Indian Penal Code, which defines obscenity. It is not there in any Indian judgment interpreting the meaning of “obscenity.” As I pointed out at the time, it does not flow from the logic of the Section or from the restrictions on free speech in the Constitution – indeed, it is at stark odds with both. The “historically respectable personalities” test had no source at all, outside the imagination of Misra J.

This is not a light matter. The freedom of expression is crucially important constitutional right. Its contours have been carefully delineated in the constitutional text, and restrictions have been imposed. Over the years, Courts have been engaged in a process of interpreting the right and its restrictions. Court judgments on the point have a huge impact in terms of self-censorship and the chilling effect. But in inventing a new restriction altogether – and then omitting to define it with any degree of precision – Misra J. seemed oblivious to all of this.

Ignorance of Legal Logic: The Criminal Defamation Judgment

In 2016, Misra J (as he then was) upheld the constitutional validity of Section 499 of the Indian Penal Code. There are multiple things profoundly wrong with this judgment, as I have discussed at some length (not least the invention of a wholly new ground –  “constitutional fraternity” as a basis for restricting speech). But in keeping with the theme of this post, I want to focus on one specific aspect.

It was pointed out to the Court that in R. Rajagopal v State of Tamil Nadu, the Supreme Court had held that strict-liability defamation in civil law was too stringent a restriction upon free speech. To put it in simpler language, the civil law offence of defamation kicked in if it was established that a defamatory statement had been made, and the only defences open to the defendant was to show that it was true, or a fair comment, or covered by legal privilege. What slipped through the cracks was, for example, an honest mistake: a statement that had been made after due care and reasonable checking of facts, but which nonetheless turned out to be false. In Rajagopal, the Supreme Court found that this was inconsistent with the Constitution, and “read in” the NYT v Sullivan standard of actual malice: that is, as far as public figures were concerned, a statement would have to be false and made with actual malice (i.e., knowing that it was false or having a reckless disregard for its truth or falsity) for civil defamation to apply.

Now, as it was pointed out to the Court, this set up an irreconcilable contradiction with Section 499 of the IPC, which not only retained the strict liability form of defamation in the criminal context, but also had fewer defences (an accused had to show not only that the statement was true, but true and in the public interest). In other words, the same legal standard that the Supreme Court had ruled unconstitutional in the context of civil defamation continued to hold the field for criminal defamation, and then some. As a matter of simple legal logic, therefore, the Court had to at least bring the two on par.

Misra J.’s response to this was … to ignore it altogether. It is a 268-page judgment that ranges across wide swathes of law and life, but on the one point that is not even a question of legal argument, but just one of logic (and therefore unanswerable), it chooses to remain silent.

Ignorance of Maintainability: National Anthem

In late-2016, Misra J (as he then was) passed an “interim order” in a PIL, directing that all cinema halls play the national anthem before every movie. Once again, there are many things that were wrong with this order, and which I pointed out at the time: from the fact that Misra J had adjudicated a very similar claim (brought by the same Petitioner) while he was a judge of the Madhya Pradesh High Court, to the fact that the order grossly violated both Article 19(1)(a), and the separation of powers, and effectively involved the Court in doing something it did not have the power to do: censor speech directly.

But all that apart, there was one very basic point that Misra J ignored entirely before passing this “interim order” (that ended up lasting for more than a year). Article 32 of the Constitution states, in relevant part:

The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

It is therefore beyond cavil that when you are moving an Article 32 petition (and PILs fall within that category), you must show that there is a violation of a fundamental right under Part III. In the PIL era, you are now entitled to move the Court to enforce somebody else’s rights on their behalf, but that does not exempt you from the burden of showing that there exists a right in the first place. And this straightforward point has been recognised in multiple Supreme Court judgments, which make it clear that for a PIL to be maintainable, there must be a right under Part III that is impacted.

What fundamental right under Part III was the PIL-petitioner agitating in the National Anthem case? It is obvious that there is none. And Misra J.’s interim order did not even begin to address that rather basic point, focusing instead on “fundamental duties” – which, as a matter of constitutional text, are not part of the “rights conferred by this Part” that Article 32 talks about.

Interestingly, midway through the hearings, while the interim order was already in force, this point was grasped by Mr Rakesh Dwivedi, the senior counsel for the Petitioner, the first time that he was engaged to appear in the case. Mr Dwivedi promptly had the Petitioner amend his pleadings, and at the next date, present a case that the Prevention of Insults to National Honour Act violated Article 14, because it did not protect the national anthem as much as it protected the national flag. I think that that is a bizarre argument, but at least it is an argument for establishing maintainability in the first place. But even that threshold requirement was not deemed necessary by Misra J before passing his slew of orders that would have a direct impact on freedom of speech and expression.

Ignorance of Jurisdiction and the Separation of Powers: Meesha 

Meesha was a case I wrote about recently, and is perhaps most characteristic of CJI Misra’s tenure: big words, grandstanding, and empty reasoning. The facts of Meesha were that novel serialised in Kerala generated some controversy. Certain groups approached the State government and attempted to have the book banned. The state government refused. A PIL was then filed to have the book banned. With dazzling alacrity, CJI Misra allowed a special mentioning, listed the case for hearing, reserved orders, and then passed a judgment dismissing the PIL.

The problem, however, is that he had no power to do most of this. Our constitutional scheme is a very carefully crafted one, when it comes to free speech and other civil rights. It effectively sets up a three-step procedure: first, there must exist a law that sets out the circumstances under which speech can be restricted. Secondly, the Executive implements that law. And thirdly, the Court can review either legislative or executive action for compliance with the Constitution. This is a multi-layered set of safeguards, which ensure that before speech is censored finally, there are a number of checks and balances.

In the case of book bans, the system works like this. The relevant law is the Code of Criminal Procedure. The CrPC grants to state governments the power to ban books if certain specific laws have been violated. And this ban, in turn, can be reviewed by a three-judge bench of the High Court, on an application from an interested party (with a further appeal to the SC). What the Constitution does not permit is for the Supreme Court to unilaterally ban a book. And if the Supreme Court doesn’t have the power to ban a book, then it stands to reason that it cannot admit or hear a PIL for that purpose.

This careful constitutional scheme was torn to shreds by Misra CJI in Meesha, simultaneously creating an entirely new – and dangerous – jurisdiction for the Court: where any interloper could show up to any High Court or the Supreme Court with a PIL, asking for a book to be banned, and try his luck.

Ignorance of Procedure: Navtej Johar

It is trite to say that the Section 377 judgment was a welcome one. But a look at how it came about reveals, on more than one occasion, legally problematic conduct by Misra CJI, acting in his capacity as Chief Justice. First – technically, Koushal v Naz Foundation was not yet over. The curative petitions in that case were still pending. But while the older proceedings were still in progress, Misra CJI admitted a lis on an identical issue (the constitutional validity of S. 377), and had it referred to a Constitution Bench. It will not do to say that the pending curatives were PILs, while Navtej Johar was a writ petition. The point is that effectively, the Court admitted a petition asking for the reconsideration of Koushal before even the Koushal proceedings had attained finality! There was a correct way to do this, which was easily available: he could have listed the curatives, disposed them off, and then admitted Navtej Johar. He did not do so.

SecondlyNavtej Johar was referred to a Constitution Bench on the very same day and in the same hearing that it was admitted! Surely referral to a Constitution Bench is not something that ought to be done in such a cavalier fashion? Surely the question of whether a matter involves a substantial question of law pertaining to the interpretation of the Constitution (the requirement of a referral) has to be separately contested?

And thirdly, the initial listing of cases had Navtej Johar as fourth on the list, to be heard after Aadhaar, adultery, and Sabarimala. Aadhaar took up the entire first half of the year, and ended just before the vacations. On the Thursday after the Court reopened, the list was juggled, and Navtej Johar was bumped up to the top of the list for the coming Tuesday. This effectively blindsided the State, whose counsel protested on the Tuesday that four days was too short a time to prepare for a case of this magnitude. Expectedly, Misra CJI gave short shrift to this, and went ahead with the hearing.

Koushal v Naz was a horrendous decision, and deserved to be overturned at the earliest. But it is unclear to me why that needed to be done at the cost of inverting some very basic procedural requirements, especially when – at most – they would have caused nothing more than a few weeks’ delay.

Ignorance of Intra-Court Discipline

On two distinct occasions, Misra CJI, using his powers as Chief Justice, has set himself up as the head of an intra-Court appeals division. He did this first on the issue of the MoP for judicial appointments: after a different, two-judge bench had issued notice on the case, with respect to the government delaying the MoP, the case was transferred to Misra CJI’s Court, and promptly dismissed. As Bar&Bench wrote:

An intra-court appeal is unheard of in the Supreme Court and it is unclear on what ground the two cases were transferred to a 3-judge Bench when the 2-judge Bench had passed no order to that effect.

 

Conclusion

There are other glaring examples of Misra CJI’s ends-without-means constitutional jurisprudence: his attempts to introduce the doctrine of “auto-block” on the internet (before better sense prevailed), his attempt to invent further restrictions to free speech on grounds of “constitutional compassion”, and so on. But the instances given above are sufficient, I feel, to make the point.

As I wrote at the beginning of this essay, this is not an assessment of CJI Misra’s substantive jurisprudence. Over the last five years, I have written about almost all of his constitutional judgments, praising some and criticising others. And at a moment when emotions are running high after the last week, it is probably too soon to engage in a dispassionate analysis of a judicial career that includes 377, adultery and Sabarimala on the one hand, Aadhaar, Master-of-the-Roster, and all the free speech judgments on the other, takes into account other controversial cases such as Judge Loya, Bhima-Koregaon, the Uttarakhand President’s Rule case, and Arunachal, and lastly, examines CJI Misra’s administrative role in the allocation of cases.

But it is never too soon, I think, to make this simple point: in constitutional matters, CJI Misra has taken the trope of the crusading judge, who roams the field seeking out his own vision of truth, justice, and beauty, to its logical end-point. I am not here saying that his judgments are motivated by extraneous considerations: no doubt CJI Misra sincerely believes that he has been doing justice according to the Constitution. But in the course of doing that justice, every institutional check that has been put into place to ensure that we have a rule of law instead of a rule by judges, has been devalued to its vanishing point. In CJI Misra’s judgments, text does not matter. Precedent does not matter. Legal consistency does not matter. Jurisdiction does not matter. Maintainability does not matter. Separation of powers does not matter. Judicial propriety does not matter. Reasons do not matter. All of this is subsumed within one overarching, totalising vision of his sense of justice, topped off with language that is so opaque, turgid, and impenetrable, that it all it reminds you off is those dark, slime-ridden ponds immediately after the rainy season.

It would be unfair to blame CJI Misra for this entirely, since he is after all, a product of a system that has systematically devalued these checks and balances, and where academics have contributed to that devaluing by castigating them as relics of “Anglo-Saxon jurisprudence.” But ultimately, it is these relics of “Anglo-Saxon jurisprudence” that stand between us and the tyranny of the unelected. The unchecked expansion of judicial power can only lead to a situation where judges feel less and less accountable to constitutional checks, and feel less and less inclined towards justifying their judgments on constitutional grounds.

Misra CJI’s tenure reveals that truth in its starkest form.