Category Archives: Judicial Accountability

No Man Shall Be a Judge in His Own Cause* (*Conditions Apply)

By now, the recent events that have convulsed the Supreme Court in an unseemly controversy have been discussed threadbare. In this post, I do not intend to talk about the broader issues of judicial politics or institutional credibility. I want to focus on something more specific, drawing from a post I wrote here a few months ago: the manner in which power has been concentrated in the office of the Chief Justice, coupled with the uniquely polyvocal character of the Indian Supreme Court, raises some serious challenges for constitutionalism and the rule of law. The events of the last few days have provided us with textbook examples of these challenges – and now is the time, if there ever was one, to think seriously about them.

In particular, I want to focus on the order passed by the Constitution Bench on November 10th, 2017. This bench was constituted on the basis of a reference from a two-judge bench that same morning. In their order, Justices Sikri and Bhushan had noted that the petitioner’s lawyer had brought to their attention an order passed the day before, in a similar writ petition, referring the matter to a Constitution Bench. Consequently, they were placing the matter before the Chief Justice for “appropriate orders”.

The background was this. Two separate petitions had been filed, asking for an impartial SIT investigation into allegations that a retired judge of the Odisha High Court (among others) had been taking bribes to “fix” a matter that was being heard in the Supreme Court. One of those petitions had been “listed” before the Court of Justices Sikri and Bhushan. The second petition was “mentioned” on Thursday, the 9th of November in Courtroom No. 2, and listed for immediate hearing on the same day at 12 45 PM. During the course of the hearing, Justice Chelameswar noted that the allegations were serious, and referred the matter to be heard by the five senior-most judges of the Supreme Court on Monday, the 13th of November. It was this referral that Justices Sikri and Bhushan took note of when the other (first) petition came up for hearing before them on the 10th.

For those unfamiliar with Supreme Court lingo: a “mentioning” refers to an oral plea by lawyers, normally before the Court sits for its regular hearings, and normally requesting that an urgent case be listed for hearing at short notice. Cases that have not already been assigned to benches are mentioned before the Chief Justice; in the present case, the Chief Justice was sitting in a Constitution Bench hearing the Delhi vs Union of India case, and therefore, as per convention, mentionings  took place in Courtroom No. 2. This was Justice Chelameswar’s court, and this was the context in which the second petition came before him.

After Justices Sikri and Bhushan referred the matter to the Chief Justice on the morning of November 10th, the Chief Justice constituted a bench to hear it that same afternoon. The bench consisted of himself and four other judges. In a short order, that bench effectively annulled the order of reference passed by Justice Chelameswar the day before.

The justification given by the bench was as follows: every Court has two “sides” – the judicial side (that is, hearing and deciding cases), and the administrative side (taking administrative decisions such as listing cases). On the judicial side, the Chief Justice is only “first among equals.” However, on the administrative side, he is the “master of the roster”; that is, “he alone has the prerogative to constitute benches of the Court and allocate cases to the benches so constituted.” Consequently:

“… neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible.”

The Constitution Bench therefore held that “any order contrary” to these principles (i.e., Justice Chelameswar’s order) was not binding on the Chief Justice. Soon afterwards, the Chief Justice himself constituted a three-judge bench to hear the case on merits. The bench – which consisted of three judges who had sat in Friday’s Constitution Bench and signed on to the above order – heard the case today, and have reserved it for judgment tomorrow.

So far, so straightforward. The problem, however, is this: the FIR in question – on the basis of which the CBI enquiry was taking place, and which the petition sought to have replaced by an SIT – implicated the Chief Justice himself. The Chief Justice was not named in the FIR; however, the case that the accused – the retired judge of the Odisha High Court – was claiming to “fix” was being heard by a bench presided over by the Chief Justice. In other words, the principal accused claimed that he could fix a Supreme Court bench on which the Chief Justice was sitting.

Everyone is familiar with the basic legal principle of nemo judex in causa sua, which translates to “no person shall be a judge in his own cause.” It is clear, therefore, that the Chief Justice could not hear the petition on merits. However, unlike any other judge of the Supreme Court, the Chief Justice’s involvement with a petition is not limited to hearing it on merits. As we have seen, the Chief Justice being the “master of the roster” implies both that he decides who should hear it, and when it should be heard. On November 10th, the Chief Justice exercised both those powers respect to a petition on a subject matter that, at least, implicated him.

Contrary to what might appear at first blush, the Chief Justice’s powers on the administrative side are not minor matters. The power to decide when a case will be heard implies a power to delay its hearing (that did not happen in this case). And the power to decide who shall hear a case implies a non-trivial level of control over the outcome. As we have discussed before, the Supreme Court is a poly-vocal Court: twenty-six judges sit in thirteen courtrooms, speaking in different and sometimes contradictory voices. It’s trite to say that outcomes of cases are inevitably influenced by judges’ legal philosophies (I have earlier taken examples of death references being listed before abolitionist of pro-death penalty judges, and labour matters being listed before pro or anti-labour judges). There is nothing wrong or even abnormal about this – every judge has, and should have, a legal philosophy that influences how she decides cases. It is unlikely that anyone still believes in the idea of mechanical jurisprudence, which treats law as a logical syllogism with mathematically correct answers.

But while there is nothing wrong with judges having legal philosophies, we can immediately see how, in the collegial atmosphere of the Supreme Court, where judges know each other well (and indeed, the senior judges having appointed junior ones), the Chief Justice’s power to decide who shall hear a case vests substantial power in that office. Specifically, take the case under discussion: the decision of whether or not to appoint an SIT would depend, to a large extent, upon the activist or conservative proclivities of a judge, their notion of the separation of powers, the sanctity they attach to the Code of Criminal Procedure, and so on.

The above discussion should make it clear that in the present case, there was a clear and direct clash between two principles: the Chief Justice being the “master of the roster” on the administrative side, and “no person shall be a judge in his own cause.” Which one should prevail? The answer, with respect is obvious. As the Constitution Bench itself acknowledges, the “master of the roster” stems from Supreme Court Rules, and conventions. Nemo judex, on the other hand, is one of the most basic and fundamental principles of justice. The Chief Justice is “master of the roster” for instrumental reasons and administrative convenience. But without nemo judex, justice cannot exist.

What, then, is the outcome in a clash like this? The answer is: the rule of seniority. Succession to the Office of the Chief Justice is by virtue of seniority, and the presiding judge in Courtroom No. 2 is the next in line after the Chief Justice. Consequently, when the Chief Justice is precluded from acting as the “master of the roster”, that responsibility must devolve on the presiding judge in Courtroom No. 2.

Looked at this way, Justice Chelameswar’s order on the 9th of November was not procedurally irregular. The Chief Justice having been disqualified by the principle of nemo iudex, it was Courtroom No. 2 that, temporarily, became Courtroom No. 1, and the administrative powers of the Chief Justice vested in his successor. Had Justice Chelameswar’s order been passed by the Chief Justice, it would have been entirely regular; because the Chief Justice was disqualified from dealing with the matter at all, the order in question would have to be treated as an order of an (acting) Chief Justice, and deemed to be regular.

This, I would suggest, is the only way to ensure that the “master of the roster” principle does not turn into an impenetrable shield for whoever it is that occupies the office of the Chief Justice, while she occupies it. The “master of the roster” principle assumes that the incumbent Chief Justice will always be entirely honest and maintain the highest standards of integrity. Of course, that is a reasonable assumption to have; however, institutions are designed not on the basis that the occupants of high office will be honest, but with the objective of ensuring their survival on the rare occasion that an occupant is not honest.

The Constitution Bench’s interpretation of the “master of the roster” principle is unfortunate, because it effectively raises the office of the Chief Justice above the institution of the Supreme Court. It is unfortunate because it places institutional integrity in the hands of one man or one woman. It is unfortunate because it fails to ring-fence a vitally important public institution against the possibility of an implosion. And of course, it is unfortunate because it elevates an administrative rule above one of the most basic and fundamental principles of justice.

For that reason, the order merits swift reconsideration. But it is also an opportunity for all of us to reflect more deeply on the institutional structures that we have – and continue to – accept without demur or dissent.



Filed under Judicial Accountability, The Judiciary

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

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

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

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

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

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

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

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

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

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

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

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


Filed under Judicial Accountability, Jurisdiction, The Judiciary

Debating the NJAC: The Question of Revival – A Response (Guest Post)

(With the NJAC hearings winding down, we will be covering the issues extensively on this blog. To kick things off, Vasujith Ram responds to Sarangan Rajeshkumar’s essay on the question of the revival of the collegium, should the Supreme Court strike down the 99th Amendment)

In a post published a couple of weeks ago, Mr. Sarangan Rajeshkumar has argued that the collegium will revive if the 99th Constitutional Amendment (establishing the National Judicial Appointments Commission) is struck down. In this post, I will contend that the question of revival in case of constitutional amendments being struck down is one that will have to argued and adjudicated – in other words, it is not a settled position in constitutional law that the original provision will revive if the constitutional amendment is declared as unconstitutional.

Mr. Rajeshkumar opines, in the context of the Property Owners’ Association case: “However, a closer look at the order of the lower bench would reveal that the only issue that has in fact been referred to a larger bench is only the interpretation of Articles 39(b) and 39(c) and not the question of applicability of the doctrine of revival […] Thus, it must be assumed that the 5-judge bench held that the un-amended Article 31C had been revived.” (Emphasis supplied)

It would to useful to lay down the history of litigation in the Property Owners’ Association case. In the said case, the primary issue before the Court was the constitutional validity of an amendment to the Maharashtra Housing and Area Development Act, 1976. The statutory amendment sought to attract the protection of Article 31-C, which, according to the State, bars any constitutional challenge on grounds of Article 14 or 19 if the statute has been enacted in furtherance of Articles 39(b) or 39(c).

Vide the 42nd Amendment the constitutional protection hitherto given to laws giving effect to Articles 39(b) or 39(c), was expanded to laws in furtherance of any or all principles enshrined in Part IV of the Constitution. In Minerva Mills v Union of India, the said part of the 42nd Amendment was declared unconstitutional. Minerva Mills, and later Waman Rao v Union of India as well as Sanjeev Coke Manufacturing v. Bharat Coking Coal were adjudicated on the assumption that the original Article 31-C stood revived.

Counsel for the petitioner in Property Owners’ Association case, Mr. F Nariman, contended that it was never argued in any of the above cases (including Waman Rao and Sanjeev Coke) whether the doctrine of revival would apply in case of unconstitutional constitutional amendments. Rather, he contended, the cases proceeded on the assumption that Article 31-C spontaneously revives. The three judge bench hearing the case agreed with Mr. Nariman. Opining that the question of revival in the context of unconstitutional constitutional amendments “did not arise for consideration in any of the those decisions which were rendered on a certain premise as indicated therein, which assumption is now seriously challenged…, the bench decided to place the matter before the Chief Justice for referral to a larger bench of not less than five judges.

The constituted five judge bench inexplicably did not deal with this question at all; instead it took up an entirely different question of interpretation of Article 39(b). It decided to refer the question to a larger bench. The constituted seven judge bench referred the matter of interpretation of Article 39(b) to nine judge bench (2013) 7 SCC 522.) The nine judge bench has so far not been constituted.

Thus question of revival of the original article post the declaration of unconstitutionality of the amendment still remains contested, without argument or adjudication. This has been clearly delineated by the three judge bench.

Cases such as Rashtriya Mill Mazdoor Sangh and Basantibai Mohanlal Khetan, which have been cited, are similar to Waman Rao and Sanjeev Coke: they proceed on the assumption that Article 31-C stands revived. The quoted portion from Mohanlal Khetan in the original post highlights the same: “Let us proceed on the basis that after His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala […] and Minerva Mills Ltd & Ors. v. Union of India & Ors. […], Article 31C reads as…” (Emphasis supplied). This is precisely what Mr. Nariman argued, leading to the Court holding that these cases proceeded on an assumption of revival, and that the doctrine would have to be argued and adjudicated (since it was contested for the first time in this case).

In the Bombay High Court case of Qucxova Cundo, has been cited. The Bombay High Court holds: “Even after Property Owners Association case, in the large number of cases set out in para 34 above, the Supreme Court has upheld the validity of the Legislation under consideration on the basis of unamended Article 31-C…” Only one case in the said para 34 (Rashtriya Mill Mazdoor Sangh, a two judge bench decision) was decided after Property Owners’ Association, the rest were decided before. In all these cases, the same logic (accepted by the three judge bench) applies: the cases were decided on the assumption of revival; the point was never contested before the Court.

My point is not to argue that the doctrine of revival will not apply to constitutional amendments. My limited argument is to the effect that we have no precedent to support this position. Moreover, since the doctrine of revival has been contested in this case it is appropriate that is argued and adjudicated.

(Vasujith Ram is a student at NUJS, Kolkata)




Filed under Judicial Accountability

Guest Post: The NJAC and an unconventional constitutional convention

(In this guest post, Akhil Deo argues that the Second Judges Case got it wrong in treating judicial primacy over judicial appointments as a binding constitutional convention, and part of the basic structure.)

The Groundwork

The Supreme Court of India (SC) is currently hearing arguments on the constitutional validity of the 99th Amendment to the Constitution which introduces the National Judicial Appointments Commission (NJAC), and replaces the existing collegium system. One of the issues for consideration, which this essay will focus on, is whether or not giving primacy to the recommendation of the Chief Justice in the matter of appointments to the judiciary should be regarded as a constitutional convention.

In what is popularly referred to as the Second Judges Case, where the Court held that primacy must be given to the Chief Justice in the matter of appointments, the SC expressed the following view on constitutional conventions: (at paragraph 449)

 “Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the “constitutional law” of the land and can be enforced in the like manner.”

The text of Article 124 of the Constitution of India, before the amendment, provided that the President appoints every judge of the Supreme Court, and that while appointing judges other than the Chief Justice he shall ‘consult’ the Chief Justice.

In paragraphs 469 and 470 the Court found that by 1948, a convention had been established that the appointment of a judge could only be made with the concurrence of the Chief Justice. Further, it found that almost all subsequent appointments were made with the concurrence of the Chief Justice. Based on Ivor Jennings’ popular three step test in determining the existence of a convention – i.e., (i) the availability of precedents, (ii) that the actors feel bound by the rule and (iii) that there exists a good reason for the rule, the Court went on to hold that (at paragraph 474);

 “…the convention, to the effect that the opinion and the recommendation of the Chief Justice of India in the matter of appointment of Judges is binding on the executive…”

In paragraph 473, as a justification the Court stated that the independence of the judiciary is a basic feature of the constitution and that the exclusion of the final say of the executive in the matter of appointment of judges is the only way to maintain the independence of the judiciary. Further the Court opined that the judiciary itself will be more well informed compared to the executive when it comes to judges suitability. Therefore the court interpreted the word ‘consultation’ in Article 124 to mean ‘concurrence’

The 99th Amendment introduces Article 124A which lists the composition of the NJAC as the Chief Justice, the next two most senior Judges of the SC, the Law Minister and two eminent persons nominated by the Prime Minister, the Leader of Opposition and the Chief Justice. Critiques of the Amendment argue that this clearly violates the basic feature of independence of the judiciary-by not giving primacy to the opinion of the Judicial members.

The crux of the present debate before the Court is that if it has already been held that the exclusion of an executive voice, as a matter of convention, in the matter of appointment is the only way to maintain the independence of the judiciary (which is part of the basic structure), the 99th Amendment is void for violating the basic structure. This position is aggravated by the fact that the Court in the NJAC case refused to refer the issue to a larger bench, meaning that it is bound by the ratio in the Second Judges Case.

Is the 99th Amendment already doomed?

There are three reasons why the constitutional convention argument is not tenable. First, the text of the Constitution never suggested that primacy of the judiciary was required in the matter of appointments. In Mahesh Chandra Gupta v. Union of India the SC had itself held that the appointment of a judge is an executive function of the President (even the smallest discretion in the exercise of this function, however, was wrestled away by the Court in the earlier Second Judges case). During the Course of the Constituent Assembly Debates, Dr. BR Ambedkar stated– “I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition.” Even Justice Ahmadi in his dissenting opinion in the Second Judges case(supra, at paragraph 395, 403) argued that the original intent of the framers did not support an interpretation of the constitution that conferred primacy on the Chief Justice and that such a change would require a constitutional amendment.

Second, reliance on English authorities on the subject of constitutional conventions is questionable with respect to India insofar as the English constitution is unwritten. Scholarly work on conventions in England primarily dealt with codes of political behavior and not express constitutional provisions. Therefore, Jennings’ enquiry was often with respect to political behavior, and not justiciable or even express codes of conduct. Consequently, its application to a written constitution should be, at most, limited to governing unwritten codes of behavior and not those which are explicitly and clearly provided for by the constitution. A similar view was adopted by The Calcutta high Court in Ashok Sengupta v. Union of India(1996 SCC Online Cal 234), where despite the existence of an English convention that the Prime Minister is generally appointed by the elected members of parliament, the Court refused to interfere if an appointment is made otherwise by the President in light of textual Constitutional provisions, opining that- “A third characteristic of a convention as far as India is concerned, is that a convention cannot be used to cut down or limit any constitutional position whatever the pedigree of the convention.”

Third, the convention in the second judges case was unconventional insofar as it was held to be binding, because constitutional conventions are ordinarily regarded as not being enforceable in Court. There is some precedent in India that accepts the proposition that constitutional conventions are part of constitutional law, for example most recently in the Madras Bar Association case, where the Supreme Court held that the National Tax tribunal(NTT) was unconstitutional. In paragraph 131 of the judgment the Court held as follows:

 “This would also be violative of the recognised constitutional convention recorded by Lord Diplock in Hinds case [Hinds v. R., 1977 AC 195 : (1976) 2 WLR 366 : (1976) 1 All ER 353 (PC)] , namely, that it would make a mockery of the Constitution, if the legislature could transfer the jurisdiction previously exercisable by holders of judicial offices to holders of a new court/tribunal (to which some different name was attached) and to provide that persons holding the new judicial offices should not be appointed in the manner and on the terms prescribed for appointment of members of the judicature.”

However, there is sufficient authority that contradicts this position. For example, the Canadian Supreme Court in the case of Amendment of the Constitution of Canada, Re , refused to enforce a convention that state consensus must be obtained before enacting a law that concerns them, finding that “What is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute.” The Indian Supreme Court had also recognized as much in the 1977 case of State of Rajasthan v. Union of India, finding that “… it is not for Courts to formulate, and, much less, to enforce a convention however necessary or just and proper a convention to regulate the exercise of such an executive power may be.” Again in the Judicial Accountability case, the Supreme Court refused to interdict a member of the Judiciary from continuing to perform judicial functions pending an inquiry into alleged misbehavior. In paragraph 62, the Court rejects the argument that convention requires him to do so and held as follows:

“It is further reasonable to assume that the concerned learned Judge would ordinarily abide by the advice of the Chief Justice of India. All this is, however, in the sphere of propriety and not a matter of legal authority to permit any court to issue any legal directive to the Chief Justice of India for this purpose.”

The collegium system versus the constitutionality of the NJAC

While the above analysis is critical of the Courts’ application of constitutional conventions, the larger question with respect to the Second Judges case and its impact on the NJAC is whether or not the convention of giving primacy to the opinion of the Chief Justice forms a part of the basic structure of the constitution, thereby making it impervious to an amendment.

In light of my arguments above, I suggest that ultimately, what is undoubtedly a part of the basic structure, is the independence of the judiciary. Consequently, both the seemingly binding conventions in is the second judges case and even in the NTT judgment should only be seem as supplementing the independence of the judiciary and not a part of the basic structure in their own right. Therefore, if following a particular convention is not the only way to ensure the independence of the judiciary, then (even if binding) it should be amenable to amendment under Article 368.

With respect to the NJAC there are two reasons why the convention of giving primacy to the Chief Justice is no longer tenable. First, an executive role in only the appointment process does not imply a disregard for the independence of the Judiciary as a whole. Other facets of an independent judiciary, for example, include a fixed tenure and salary, difficult impeachment procedure etc. Moreover, the NJAC does not even envisage a final say of the executive, which was the Court’s worry with respect to Article 124. In fact, the supremacy of the judiciary in the matter of appointments is not a predominant constitutional feature in other parts of the world, for example, The Judicial Appointments Commission in the United Kingdom consists of 15 members: two from the legal profession, five judges, one tribunal member, one lay justice (magistrate), and six lay people including the Chairman.

Second, the final rule of Jennings’ three-pronged test for determining whether a convention exists is the necessity of a reason for its existence. The reason for the collegium system, where judges appoint judges, according to the Court in the Second Judges Case was the ability of the judiciary to better determine the suitability of their peers. Arguably, this no longer stands true with respect to the collegium. Several prominent jurists and academicians have criticized the collegium system for being opaque with no sense of accountability (see generally here, here and here), and further, as an extra constitutional system that finds no support from the text of the constitution leading to an erosion in the quality of judges that it produced.


These arguments present two propositions:

  • Conventions should not be considered binding by Courts and that the courts must refrain from both formulating and enforcing them, and
  • The convention of judicial ‘primacy’ was linked to the basic structure in the Second Judges case. However, separated from its nexus with the basic structure, such a convention giving primacy to the judiciary in the matter of appointment, even if accepted as binding, becomes part of ordinary constitutional law, meaning that it is amenable to the amendment process under Article 368 of the Constitution and no longer acts as a deterrent to the validity of the 99th Amendment


(Akhil Deo is a third-year student at the Hidayatullah National Law University.)

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Filed under Basic structure, Constitutional Conventions, Judicial Accountability, Judicial Independence

Guest Post: Judicial Accountability and Fundamental Rights – II

[This is the second – and concluding – guest post by Krishnaprasad K.V., an M.Phil candidate at the University of Oxford, and formerly of NLSIU Bangalore (2012)]

Part I in this series of posts attempted to survey the precedent. The crux of the argument there was this – contrary to the assertion of a Constitution bench of the Supreme Court in Ashok Rupa Hurra, the proposition that judicial orders may be subject to Part III scrutiny is not foreclosed by precedent. I will make two further points here. First, there are strong reasons in principle for concluding that judicial orders must indeed be scrutinised on the basis of Part III standards. Second, the seemingly worrying consequences of this proposition (some of which were highlighted by responses to the previous post) are capable of resolution through other means. I will consider each of these in turn.

A. Principle

There are at least three reasons in principle that, in my view, dictate the conclusion that judiciary does fall within the purview of “State” as defined by Art. 12 of the Constitution.

First, Art. 12 adopts an institutional (as opposed to a functional) classification. The scope of Art. 12 must therefore be determined on the basis of the nature of the entity concerned, not the function it performs. A literal reading of Art. 12 should suffice to vindicate this claim:

“In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

This conclusion when read in light of the Constitution bench decision of the Supreme Court in P. C. Garg v Excise Commissioners provides powerful support for the view that I advance here. In P. C. Garg, the petitioners challenged the validity of one of the rules made by the Supreme Court in exercise of its powers under Art. 145. The impugned rule provided that the Court may impose such conditions as to costs and security as it deems fit, including in petitions under Art. 32. Holding that these rules were indeed capable of violating Part III norms, Gajendragadkar J. reasoned as follows:

“If any of the provisions of such a law were to contravene any of the fundamental rights guaranteed by Part III, they would be struck down as being unconstitutional. Similarly, there can be no doubt that if in respect of petitions under Art. 32 a law is made by Parliament as contemplated by Art. 145(1), and such a law, in substance, corresponds to the [impugned provision], it would be struck down on the ground that it purports to restrict the fundamental right guaranteed by Art. 32. The position of an order made either under the rules framed by this Court or under the jurisdiction of this Court under Art. 142(1) can be no different.” (emphasis mine)

It may be argued that, in the light of the nature of the impugned provision in P. C. Garg, that decision must be confined to legislative actions by judicial bodies. However, as noted above, this argument sits uneasily with the wording of Art. 12. It is difficult to see how a functional distinction of this nature can be accommodated within the clearly institutional classification adopted by Art. 12.

Secondly, it is now clear that textual ambiguities in the Constitution may be resolved by reference to Constituent Assembly debates (authority for this proposition may be found here, here and here). The view advanced here draws strong support from the Constituent Assembly Debates. In the Constituent Assembly, concerns regarding the textual ambiguities in Art. 12, and in particular, the meaning of the phrase ‘other authorities’ were raised. It was suggested that leaving judicial bodies out of the purview of Art. 12 may lead to the conclusion that “even a Magistrate… might pass an order, or make a notification abridging the rights that are conferred under sub-clause (a) of clause (1) of article 13.” [Constituent Assembly Debates, Vol. VII, p. 609 (1950)]. In response to this concern, Dr. B. R. Ambedkar clarified that “authority” for the purposes of Art. 12 subsumed within its scope “every authority which has got either power to make laws or the power to have discretion vested in it” [Constituent Assembly Debates, Vol. VII, p. 610 (1950)]. It is indisputable that courts fall within the purview of the latter category. (The research on Constituent Assembly Debates is sourced from Ms. Kalyani Ramnath’s article in the National Law School of India Review, available here). Notably, in recognition of the intention of the framers, the National Commission to Review the Working of the Constitution headed by Justice M. N. Venkatachaliah also made the following recommendation:

The definition of ‘the State’ in article 12 being an ‘inclusive’ one, courts have ruled that where there is pervasive or predominant governmental control or significant involvement in its activity, such bodies, entities and organizations fall within the definition of ‘the State’. It is recommended that in article 12 of the Constitution, the following Explanation should be added:- ‘Explanation – In this article, the expression “other authorities” shall include any person in relation to such of its functions which are of a public nature.’ (emphasis mine)

Finally, it appears that many provisions in Part III are, at least in part, directed at judicial bodies. A good example is the power of the Supreme Court under Art. 32 to issue the writ of certiorari. Since that power can only be exercised against judicial or quasi-judicial bodies, the view that judicial orders fall outside the purview of Part III renders it nugatory. [H. M. Seervai, Constitutional Law of India: A Critical Commentary, 4th edn., p. 394]. Another set of similar examples may be found in the rights guaranteed by Art. 20 of the Constitution. Consider for instance, the right not to be “convicted of any offence except for violation of a law in force at the time of the commission.” Since conviction cannot but be by a judicial authority, it is clear that the addressee of the right under Art. 20(1) is the judiciary. Similar is the case with the right not to be “prosecuted and punished for the same offence more than once” and the right of an accused to not be “compelled to be a witness against himself.” These rights are inexplicable on the view that judicial orders fall outside the purview of Part III.

In the light of these reasons, it is submitted that the mere fact that “judiciary” does not find express mention in Art. 12 should not lead one to the contrary conclusion. This is especially so since the nature of the definition in Art. 12 is expressly inclusive.

B. Consequences

Bringing judicial orders within the purview of Part III scrutiny may give rise to several seemingly worrying consequences. If orders made by the Supreme Court are capable of offending Part III rights, does that mean that those orders can be infinitely challenged by way of Art. 32 petitions? Are the Court’s decisions on those Art. 32 petitions then amenable to further challenge? If yes, when will this lead to a final resolution? In my view, the answer to these questions must be found in the proposition that the right guaranteed by Art. 32 is not an absolute right. The right to move the Supreme Court to enforce rights guaranteed by Part III, must itself be subject to reasonable restrictions.

It may objected that the text of Art. 32 (in contrast to Art. 19, for example) does not expressly make it subject to such restrictions. In my view, however, this is not conclusive. An interesting analogy in favour of this view may be found in the Supreme Court’s jurisprudence on Art. 26(c). That provision reads:

“Subject to public order, morality and health, every religious denomination or any section thereof shall have the right: …(c) to own and acquire movable and immovable property.”

In Acharya Narendra Prasadji v. State of Gujarat (AIR 1974 SC 2098), the Court had occasion to consider an interesting argument concerning the scope of permissible restrictions on this right. Admittedly, the impugned legislation in that case, the Gujarat Devasthan Inams Abolition Act, 1969, did not relate to public order, morality or health which are the express grounds listed in Art. 26(c). Despite this, it was argued that the Gujarat Act imposed a reasonable restriction on the right under Art. 26(c). This argument was upheld by a Constitution bench of the Supreme Court. It was held that:

“The question, therefore, arises whether the right under Article 26(c) is an absolute and unqualified right to the extent that no agrarian reform can touch upon the lands owned by the religious denominations. No rights in an organised society can be absolute. Enjoyment of one’s rights must be consistent with the enjoyment of rights also by others.”

If this is true for Art. 26(c), it must equally be true for Art. 32. This is especially so since, in contrast to Art. 26(c) Art. 32 only guarantees the right to move the Supreme Court “by appropriate proceedings.” This phrase is capable of being interpreted as embodying an inherent restriction on the scope of that right.

Further vindication of this view may be found in a recent line of decisions of the Supreme Court that take the view that, at least under some circumstances, the Supreme Court may exercise its discretion to not entertain Art. 32 petitions when the alternative remedy in the form of Art. 226 is available. Consider for instance, the decision in State of West Bengal v Ratnagiri Engineering Pvt. Ltd. There, a division bench of the Supreme Court held:

This writ petition has been filed under Article 32 of the Constitution for declaring the amendment brought about in the West Bengal Land Reforms Act, 1955… as unconstitutional…. In our opinion, the petitioner can file a writ petition before the High Court under Article 226 of the Constitution for this purpose. Hence, we are not inclined to entertain this writ petition under Article 32 of the Constitution.

The same approach was adopted by the Supreme Court in Satish Chandra v Registrar of Cooperative Societies, Delhi and Mohammed Ishaq v S. Kazam Pasha. In my view, the best rationalisation of these decisions is that, the court’s exercise of discretion in not entertaining these petitions constitutes a reasonable restriction on the scope of the right guaranteed by Art. 32.**

In sum, there are strong reasons in principle for concluding that judiciary must be held accountable to Part III norms. However, admittedly, accepting this view may lead to the result that Art. 32 petitions will now be filed in circumstances under which they were not previously available. In my view, an approach that addresses these consequences head-on is preferable to one that turns a blind-eye to the principled reasons that dictate a contrary conclusion. However, I have not attempted to exhaustively define how each of the circumstances under which Art. 32 petitions may be filed, can be dealt with. My attempt is only to suggest that the correct methodology for dealing with the ‘infinite regress’ problem may lie in the recognition that the right under Art. 32 is itself subject to reasonable restrictions.

** This is not to suggest that these decisions are correct in result though. In my view, they are not. In the interests of clarity, I will briefly explain why. As per the decision in Daryao v State of U.P. it is clear that decisions of High Courts while dismissing petitions under Art. 226 constitute res judicata for the purposes of subsequent petitions under Art. 32. Thus, once a petition under Art. 226 has been dismissed by a High Court, a subsequent petition under Art. 32 will succeed only if the ground on which the former petition was dismissed is not a ground applicable to Art. 32 petitions. Now, consider this result in the light of the above decisions. This leads one to the conclusion that Art. 32 will be available to the petitioner in extremely restrictive circumstances i.e. only when the previous petition under Art. 226 was dismissed on a ground that is inapplicable to Art. 32. In more general terms, the reason why this line of decisions in wrong is not because Art. 32 is an absolute right, but because the restriction that these case impose is not a reasonable one.


Filed under Judicial Accountability, Meaning of "State"

Guest Post: Judicial Accountability and Fundamental Rights – I

(We all know the old chestnut – the Supreme Court is not final because it is right, but it is right because it is final. But if it is the Constitution that is truly the supreme law of the land, then is it possible for a Supreme Court decision to be unconstitutional? More specifically, if the Supreme Court is part of the “State”, one of the three wings of government under classic separation of powers doctrine – and there seems to be no prima facie reason in political philosophy against that proposition – then surely it too, under the terms of Article 13, is subject to Part III and the Bill of Rights? But is a Supreme Court decision “law” within the meaning of Article 13? And if that is so, where lies the remedy? If it is to the Court, then we raise the specter of infinite regress – each Supreme Court judgment appealed again on the ground that it violates someone’s fundamental rights. This is a veritable minefield of thorny issues of constitutional principle and policy. In this series of guest posts, Krishnaprasad K.V., M.Phil candidate at the University of Oxford, examines this fascinating and under-explored area)

Much has been said, on this blog and elsewhere, about the Indian Supreme Court’s decision in Naz v Koushal. Some thought has also been given to the larger implications of that decision, notably, from the point of view of separation of powers and the meaning of ‘equality’. My point of departure however, is a question posed by Arghya Sengupta in his insightful piece in The Hindu:

It is imperative that the Court is taken to task, not only for this decision, but for all its other decisions whose results we might agree with as citizens, but whose reasoning is inexplicable at best and absurd at worst… the Court has made a judgment that is value-laden and based on a particular worldview that many disagree with… If it is legitimate for the Court to make such a choice, it is even more legitimate for citizens to ask: who will judge our judges?” (emphasis mine)


I will argue that at least one set of standards to which judges must be held accountable, are those found within Part III of the Constitution. In practical terms, (without going into the (in)correctness of Naz v Koushal) this means that the Supreme Court in Naz may have infringed the “so-called [fundamental] rights” of what the Court deemed “a miniscule fraction of the country’s population.”

This result is however, seemingly precluded by precedent; so much so that a Constitution bench of the Supreme in Ashok Rupa Hurra felt no hesitation in concluding with little reasoning that “superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.” If this is correct, it must follow that the judiciary is incapable of violating Part III rights.

In Part I, I will demonstrate that, contrary to the assumption in Ashok Rupa Hurra, precedents are far from conclusive on this point. Part II will then ask what the answer must be on principle.

Almost consistently, courts have dismissed petitions that attempt to impugn judicial orders under Art. 32. Prima facie, this must mean that judicial orders are not subject to scrutiny on Part III grounds. One of the earliest illustrations is the decision of a seven-judge bench of the Supreme Court in Ujjam Bai v State of Uttar Pradesh. There, a quasi-judicial determination of tax liability by a Sales tax officer was challenged under Art. 32. The court held that a petition of this nature was not maintainable unless:

(a) the action is under an ultra vires statute or;

(b) the action taken is without jurisdiction; or

(c) where the action is procedurally ultra vires.

A nine-judge bench in N. S. Mirajkar v State of Maharashtra followed this decision. A petition under Art. 32 challenging a gag order passed by Mr. Justice Tarkunde of the Bombay High Court was held to be not maintainable in that case. This trend is also evidenced by Triveniben v State of Gujarat. Dismissing a petition under Art. 32, the Court there opined that “it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner.” It is unnecessary to duplicate other instances here, but further affirmation of this view may be found in Krishna Swami v Union of India, Mohd. Aslam v Union of India, Khoday Distilleries Ltd. v Registrar General, Supreme Court of India, and P. Ashokan v Union of India. All of these were attempts to challenge judicial orders by way of petitions under Art. 32.

 A. R. Antulay v R. S. Nayak appears as a lone instance taking the contrary view. The question there was whether directions issued by the High Court singling out the petitioner’s prosecution for speedier trial violated his Art. 14 and Art. 21 rights. Seemingly departing the trend evidenced above, the Court held:


“In our opinion, we are not debarred from re-opening this question and giving proper directions and correcting the error in the present appeal, when the said directions on 16th February, 1984, were violative of the limits of jurisdiction and the directions have resulted in deprivation of the fundamental rights of the appellant, guaranteed by Articles 14 and 21 of the Constitution.” (emphasis mine)


However, at least three other Constitution benches of the Supreme Court (here, here and here) have taken the view that Antulay must be “confined to the peculiar circumstances of that case.” It is hard to see this as anything other than a euphemism for ‘Antulay was incorrectly decided’.

This consistent judicial stance is however, almost entirely thrown into reverse by cases that consider the judiciary’s role in advancing the goals set out in Part IV. Mathew J.’s decision in Kesavananda Bharati is an excellent example. There, “it seemed clear” to Mathew J. that “judicial process is also State action.” Later, in State of Kerala v N. M. Thomas, the majority held that Part IV goals must “inform and illuminate” the Court’s interpretational task. Notably, even this conclusion was pegged on view that courts are “State” under Art. 12:

Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood but it should equally inform and illuminate the approach of the Court when it makes a decision as the Court also is ‘state’ within the meaning of Article 12 and makes law even though interstitially from the molar to the molecular.” (emphasis mine)


A relatively recent Constitution bench decision of the Supreme Court in Harjinder Singh v Punjab Warehousing Corporation goes one step further. There, the “authoritative pronouncements” in N. M. Thomas and Kesavananda Bharati led the court to conclude that courts are “State.” The Court cited with approval Hidayatullah J’s minority judgment in N. S. Mirajkar making no mention whatever of the majority’s view in that case. High Courts (here and in On The Death of Tilckansa Phukan his heirs and Legal representatives v Lalit Chandra Borbakuah, (1985) 2 GLR 376, for example) have followed suit.

In sum, the near-consistent judicial stand (for an exception, see Budhan Chowdhury v State of Bihar) has been as follows – judiciary assumes the role of “State” in advancing Part IV goals; judicial orders are however, not subject to challenge on Part III grounds. Put differently, judiciary is “State” for Part IV purposes, but not so under Part III. With respect, it is unnecessary to engage in long-drawn-out legal reasoning to establish that this distinction is unsustainable. Even a cursory reading of Art. 36 should suffice:

In this Part, unless the context otherwise requires, “the State” has the same meaning as in Part III.”

Interestingly, Mathew J.’s judgment in Kesavananda Bharati, which formed the basis of much of the later jurisprudence recognising the court’s obligations under Part IV, admits this conclusion. Mathew J. held, “the definition of the word ‘State’ both for the purpose of Part III and Part IV is the same.”

It is difficult to escape the conclusion that in this area of the law, it is the concern about practical consequences rather than principle that has dictated legal results. The unanimous judicial view suggests that under Part IV, courts assume similar obligations as other organs of the “State”. However, the Supreme Court has stopped short of taking this result to its logical conclusion – that judicial orders are also subject to Part III scrutiny. One of the concerns that may have motivated this double standard is the fear that the contrary view may open the floodgates to Art. 32 petitions. Is this fear legitimate? In any case, are there sufficiently strong reasons of principle that dictate a contrary result? Part II will consider these questions.


Filed under Judicial Accountability