Category Archives: The Judiciary

Addendum: Contempt and the Supreme Court’s Humpty Dumpty Jurisprudence

At the time of writing yesterday’s post, the final chapter in the story remained to be told. That chapter was completed today when a three-judge bench of the Supreme Court dismissed the writ petition filed by Kamini Jaiswal, which sought an SIT investigation into allegations of judicial corruption.

As in the previous post, I do not want to go into the merits of the petitions themselves, and associated issues of judicial politics (in fact, today’s judgment doesn’t really doesn’t go into the merits of the petitions either). In the previous post, however, I had made one argument: the Chief Justice’s role as the master of the roster, with its attendant power to list matters and select benches, comes into conflict with the principle of nemo iudex (no person shall be a judge in her own cause) in that class of rare cases where the Chief Justice herself is implicated in an illegal act. In such a situation, the Chief Justice ought to be precluded from hearing the case on merits (of course), but also precluded from passing any administrative orders deciding when, and before whom, the case will be listed.

How did the three-judge bench deal with this? In paragraph 19 of its judgment, it noted that:

“As a matter of fact, this controversy has been set at rest that even when there is an allegation against Hon’ble Chief Justice of India, it is he, who has to assign the case to a Bench, as considered appropriate by him.”

The three-judge bench did not, however, provide any independent reasons justifying this position. It relied upon the Constitution Bench order of 10th November (which we discussed in the previous post), and then cited the judgment in D.C. Saxena vs Chief Justice of India. In that case, the Court had noted:

“When imputations were made against the Chief Justice, the petitioner assumed, in our view, “wrongly” that CJI cannot constitute benches nor he should discharge the functions of Chief Justice until the matter is decided. On appointment by the president by a warrant and on his taking oath of office, the CJI becomes entitled to discharge the functions and duties of that office including constitution of benches and assignment of judicial work to judges as per procedure. This responsibility flows from the office and none including a litigant has right to demand for contra position. As regards his personal disposition to hear a case by a bench of which he is a member, it is his own personal volition. The Chief Justice’s prerogative to constitute benches and assignment of judicial business would no hinge at the whim of a litigant.” (para 26)

Notwithstanding the legal correctness of this paragraph, D.C. Saxena was an entirely inapposite case upon which to rely. D.C. Saxena was a PIL petitioner who, after having had a PIL dismissed by the then-Chief Justice, filed a fresh PIL against the Chief Justice, asking that he be removed from office (among other things). The present case, however, involved a registered FIR and a CBI investigation, whose subject matter potentially implicated the Chief Justice. There is a world of difference between the two situations; but in any event, what is far more important is the three-judge bench’s failure to do two things: first, to show that the nemo iudex principle would not apply to the present case; and secondly, to show that there was something in the Constitution, or in any law, according to which the Chief Justice could be exempted from the operation of the principle.

On the first issue, the Bench repeated that the FIR did not name the Chief Justice, or any Supreme Court judge. However, that was nobody’s case; indeed, according to settled law, judges could not be named in FIRs without following a specific procedure. The Chief Justice’s involvement in the case did not stem from his being named in the FIR, but from the fact that the principal accused – a retired judge of the Odisha High Court – had claimed to be able to fix a Supreme Court bench that the Chief Justice was presiding over. Now, once that is established, there are two possibilities: either the principal accused was lying, or he was telling the truth. In the latter eventuality, the Chief Justice was certainly implicated; and the question of whether the principal accused was lying or not could – naturally – only be determined through an investigation (whether by the CBI or the SIT) and, eventually a trial.

Consequently, the naming of the Chief Justice in the FIR is irrelevant to the question of whether nemo iudex applies or not. And if nemo iudex did apply, the three-judge bench simply didn’t have an independent argument (apart from its dubious reliance on D.C. Saxena) as to why the Chief Justice was exempted, and for good reason: there isn’t one. There is nothing in the office or functions of the Chief Justice that justifies any such exemption; and, as I argued in the previous post, the Chief Justice’s role as the master of the roster can easily be taken over by Court No. 2 at a time like this, in the interests of the continued smooth functioning of the institution.

There is a third possibility, however: that the Chief Justice continuing to play his role as the master of the roster would not violate the nemo iudex principle. In the last post, I provided some detailed arguments about the nature of this administrative power, and why it was serious and far-reaching in character. What did the three-judge bench have to say about this? It said this:

“It is contempt to imply that the Chief Justice would assign it to a Bench which would not pass an order adverse to him. It is also contempt to imply that the Judges would be so amenable to comply that the Bench which heard the second writ petition could not have heard it. This Court has laid down these allegations aimed at bringing the administration of justice in disrepute.” (paragraph 22)

This, however, misses the point entirely. It was nobody’s case that the Chief Justice would assign a case to a Bench that would decide in his favour. Nor was it anybody’s case that the bench hearing it would be amenable to deciding in the Chief Justice’s favour. The point – as we discussed in the last post, is this: the structure of the Supreme Court with its multiple benches and its collegial nature, and the very character of judging as a human enterprise, are such that the power to decide who hears a case necessarily implies a measure of control over its outcome. There is no insinuation that the Chief Justice would abuse his power; what is at issue, however, is that the existence of the power necessarily means that in cases of this kind, when the Chief Justice exercises his role as the master of the roster, he acts as a judge in his own cause. He might be the most honest judge that ever lived, but that is not the point; the principle is not that “no person shall be a (dishonest) judge in her own cause”. It is – for excellent reasons – simply that “no person shall be a judge in her own cause.”

By misunderstanding the character and purpose of the nemo iudex principle, the three-judge bench effectively granted the office of the Chief Justice blanket immunity from its operation. The new principle now seems to be “no person (except the Chief Justice of India) shall be a judge in her own cause.”

What follows, however, is substantially worse. One of the three judges hearing the petition – Justice Khanwilkar – had also been on the bench (alongside the Chief Justice) that the principal accused in the FIR had claimed he could “fix”. Justice Khanwilkar’s presence on the bench hearing the petition on merits, therefore, created a conflict of an order of magnitude more serious than the one created by the Chief Justice’s administrative power to list cases; Justice Khanwilkar was exercising judicial power to decide the case. The inevitable implication of this is that not only the Chief Justice – but every judge of the Supreme Court – is exempted from the nemo iudex principle.

What was the Court’s response to this? It was a familiar one.

“Yet another disturbing feature which aggravates the situation is that prayer has been made, that one of us, Justice A. M. Khanwilkar, should recuse from the matter. This is nothing but another attempt of forum hunting which cannot be permitted. Rather this kind of prayer was held to be contemptuous, aggravating the contempt in the case of Dr. D C Saxena (supra).” (paragraph 28)

According to the three-judge bench, therefore:

(a) It was contempt of court to object to the Chief Justice exercising his administrative power to list a case in which he was potentially implicated, and

(b) It was contempt of court to ask Justice Khanwilkar to recuse himself from exercising judicial power in hearing a case in which he was potentially implicated.

It is fairly clear that on this grotesque definition of contempt, both this blog post – and the last one – are in contempt of court. However, this is not the definition of contempt of court in law. The Contempt of Courts Act is clear that there must be an act that “substantially interferes, or tends substantially to interfere with the due course of justice“; and furthermore, there ought to be clear evidence of such interference. In using the word “contempt” no less than twenty-one times in the course of its thirty-eight page order (and, on occasion, mistakenly equating it with “forum shopping”), the three-judge bench’s order is reminiscent of Humpty Dumpty in Alice Through the Looking Glass:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

At the end of its judgment, the three-judge bench observed that:

“Let the good sense prevail over the legal fraternity and amends be made as lot of uncalled for damage has been made to the great Institution in which public reposes their faith.”

One cannot help wondering whether institutional greatness will truly be nurtured by brandishing the sword of contempt – or whether all that will lead to, in Justice Jackson’s words, will be the “compulsory unification of opinion [that] achieves only the unanimity of the graveyard.”  

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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.

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Guest Post: A Pulpit or a Courtroom – Exclusion of Jurisdiction and the decision in Girish Kumar Suneja

(Previously on this blog, we have covered the serious constitutional issues arising out of the exclusion of the jurisdiction of the High Court in the ongoing “Coal Block” cases – see here and here. Yesterday, a three-judge bench of the Supreme Court upheld this exclusion. In a guest post, Abhinav Sekhri analyses the judgment. Cross-posted from the Proof Of Guilt blog with permission.)

On 13 July 2017, a three-judges bench of the Supreme Court dismissed the petitions clubbed together with Girish Kumar Suneja v. CBI [SLP (Crl.) 9503 of 2016, hereafter Suneja]. The preliminary issue raised in these petitions was a challenge to the Supreme Court’s order dated 25.07.2014, whereby aggrieved persons were confined to only approaching the Supreme Court with a “prayer for stay or impeding the progress in the investigation / trial“, and jurisdiction of High Courts was thus excluded. This Blog, on an earlier occasion, had considered the Petitioners’ case and argued that the impugned order of 25.07.2014 was bad, and readers may refer to that post for a recap. Here, I argue that the decision in Suneja does not offer any convincing justification for why the Court disagreed.

Excluding Jurisdiction: Missing the Forest for the Trees

In Suneja, the Court takes up three key arguments assailing the exclusion of jurisdiction caused by the order of 25.07.2014 and its effects – (1) Curtailment of the High Court’s power to entertain petitions under Sections 397 and 482 Cr.P.C; (2) Exclusion of writ jurisdiction under Articles 226 and 227 of the Constitution; and (3) A violation of Article 14 caused by treating the ‘coal-block allocation scam’ cases under this special procedure. On all three counts, it disagreed with the Petitioners’ claims. On closer examination, one can see how the Court does so not by engaging with the argument, but by avoiding it altogether.

Sections 397 and 482 Cr.P.C.

On the first issue of curtailing statutory powers of entertaining revision petitions [Section 397 Cr.P.C.] and quashing petitions [Section 482 Cr.P.C.], the Court reminds us that these are not rights, such as appeals, but entitlements. A High Court may refuse to entertain these petitions. This characterisation was never in doubt – the issue, was whether it was unconstitutional to deprive the High Court of even this abilityto entertain such petitions. For this, the Court turns to the legislative history of Section 397(2) Cr.P.C. [which prevents revision petitions for challenging interlocutory orders] to elaborate that the scope of revision jurisdiction was restricted to prevent delay. But the Court does not conclude that the present petitions fall within this category, which renders these observations obiter. Perhaps proceeding with that assumption, the Court moves on to consider the scope of inherent jurisdiction under Section 482 Cr.P.C. Again, it talks of a ‘rarest of rare’ level for quashing petitions being entertained, implying that the issue must be very serious to warrant intervention. Still, no answers are offered to explain what warrants an exclusion of this jurisdiction altogether. One may then assume that the Court implies the exclusion was illegal, which is why it considers the tests for considering whether the present cases could have triggered an exercise of jurisdiction under these provisions.

In doing so, the Court makes notable errors in law. For instance, in considering the interplay between revision and quashing the Court notes that “it is quite clear that the prohibition in Section 397 Cr.P.C. [of not proceeding against interlocutory orders] will govern Section 482 Cr.P.C. We endorse this view.” This means that for Court, Section 397 applies to all final and intermediate orders, while Section 482 applies to interlocutory orders. Such a reading ignores the notwithstanding that comes at the start of Section 482, which has led the Supreme Court to conclude on several occasions that the scope of Section 482 remains untrammelled by the terms of Section 397 – most recently clarified by another bench of three judges in Prabhu Chawla [Crl. Appeal No. 844 of 2016, decided on 05.09.2016]. Remember, all this is irrelevant, because the present cases actually involved a question of why recourse to this jurisdiction could be barred. The Court only engages with that issue in its terse refusal to consider the decision in Antulay [(1988) 2 SCC 602]Antulay was a decision by seven judges, but it is distinguished because the facts were different and it involved a trial before the High Court itself, and the impugned provision therein – Section 9 of the Criminal Law Amendment Act 1952 – in turn used the 1898 Cr.P.C. The facts, though different, led the seven judges in Antulay to consider why any court’s jurisdiction could not be ousted, which would nonetheless be relevant here. That the bench in Suneja even raises the second point about the Cr.P.C. is simply shocking, since the allegations in Antulay concerned a period after 1973 and by which time the 1952 Act was being read with the new Cr.P.C. [as required by Section 8 of the General Clauses Act 1897]. 

We are then left without any answers for the actual issue. For some reason the Court continues to miss the forest for the trees, and refuses to tell us why recourse to revision and quashing was made impermissible in the present batch of cases. It painfully continues to develop on the obiter by considering whether the batch of petitions met the standard of seriousness for interference under Section 482 Cr.P.C., and concludes that “challenge to orders of this non-substantive nature that can be agitated in a regular appeal is nothing but an abuse of the process of the Court.” The observation is entirely misplaced. The Petitioners raised issues of law, arguing that certain findings suffer from impropriety – express grounds for interference under Section 397. But if recourse to that provision is barred, then what? Should recourse to Section 482 still remain impermissible? The Court ignores the peculiarity in the present set of facts, which have come about by its own hand.

Article 226 and 227 of the Constitution

The conclusions on Article 226 and 227 also proceed on an assumption that the issues raised in the batch of petitions are ‘trifling’ and therefore would not warrant interference under writ jurisdiction. With due apologies for sounding repetitive, the bench again fails to explain how this jurisdiction can be ousted entirely. In fact, here, the bench expressly says “there can be no doubt that the jurisdiction of a High Court under Articles 226 and 227 cannot be curtailed, yet extraordinary situations may arise where it may be advisable for a High Court to decline to interfere.” This volte-face is completed at the end of this part of the decision, where the bench says that “there is nothing extraordinary if the High Court ought not to interfere and leave it to this Court to take a decision in the matter in larger public interest“. But this is not what has happened in the present case! In unequivocal terms, the High Court was barred from entertaining petitions. The Supreme Court is now attempting to portray the scenario as a willing refusal by High Court’s to entertain cases, when it is actually an exclusion of jurisdiction by the Supreme Court itself. It is fair to say that nobody is fooled.

Article 14 and Judicial Legislation

The argument under Article 14 in Suneja was twofold – the ‘coal block’ cases do not constitute an identifiable class, and even if they do this differentiation must be created through statute. The Court, expectedly, whips up the rhetoric to justify why the cases are an identifiable class in themselves. But the decision does not engage at all with the more pressing issue of how such classes can be created. It says that “the order passed by this Court does not amount to legislation in the classical mould but according special treatment to a class of cases for good and clear reason and in larger public interest as well as in the interest of the accused.” There are obvious legal issues in judicially created classes for perpetrating discrimination. Judicial orders are imprecise, are creations of un-elected persons thus unrepresentative of the democratic process, and finally cannot be subjected to a challenge under Part III leaving no recourse for those aggrieved. The Supreme Court attempts to conveniently sidestep all of this by resorting to verbiage. Since nobody really knows what the ‘classical mould’ of legislation is, this is doublespeak for “the Supreme Court can do whatever it wants” – a highlight of the Court’s White-Knight tendency in this arena of economic offences [previously discussed here].

Public Interest and the Rights of Accused Persons

There are three other heads of argument that are considered in Suneja – (1) violation of Article 21 by the procedure created by the impugned order, which is not established by ‘law’; (2) illegal use of Article 142 of the Constitution to curtail both Statutory and Fundamental Rights of the Petitioners, and; (3) Illegally preventing a stay of proceedings. Rather than consider each of these in turn, it is easier to attack the common thread underlying these strands – the idea that public interest is a satisfactory justification to proscribe rights of accused persons. With great vigour the bench notes that “it is now time for all of us including courts to balance the right of an accused person vis-a-vis the rights and interests of individual victims of a crime and society. Very often, public interest is lost sight of while dealing with an accused person and the rights of accused persons are given far greater importance than societal interests and more often than not greater importance than the rights of individual victims. … It is not as if the appellants have been denuded of their rights. It is only that their rights have been placed in the proper perspective and they have been enabled to exercise their rights before another forum. 

While the Court merely makes a cursory reference to Shahid Balwa [(2014) 2 SCC 687], the same issue reared its head on that occasion. Here, again, it uses the arguments of the Petitioners against them in observing that in pressing for a stay of proceedings it seems that the conclusion of the trial is not an objective for them. These are serious cases of corruption, the Court notes, and so a stay order cannot be given for the asking. Such logic is fit for the pulpit, not for the Supreme Court. At the most basic level, the bench ignores the practical realities that plague the judiciary. The present petitions were filed sometime around winter 2016, and have been decided in July 2017. For whatever it is worth, the Petitioners did allege severe illegalities in the trial, and by refusing to consider the issue of stay at the earliest the Court allowed a potentially illegal trial to continue for six months. Within that time most of the evidence has been completed in two sets of petitions [Y. Harish Chandra Prasad v. CBI (Crl. Appeal No. 1145 of 2017) and P. Trivikrama Prasad v. CBI (Crl. Appeal No. 1153-54 of 2017]. How is that fair, and how is that a correct utilisation of judicial time? At a deeper level, the Court is effectively denouncing a class of persons from seeking an enforcement of their fundamental rights for no better reason in law than because it thinks it is against public interest. It does not realise that such rhetoric ultimately trickles down to trial courts, where an accused is then painted as guilty simply for choosing to remain silent [a fundamental right] and is thus subjected to lengthy pre-trial detention.

Conclusion

On all counts, Suneja is a bad decision. We get no further answers to why is it fair to exclude the High Court as a forum for jurisdiction beyond the bench re-iterating that this is in public interest. For this, it could have merely expressed agreement with the previous decision of Shahid Balwa and saved time. When the bench does try to engage with the legal issues, it fails to grasp what was at stake and flounders. Ultimately, the decision may result only in compounding uncertainty by using previously unheard of tests and expressions to explain what is, essentially, another instance of abusing the vast discretion vested with the unelected judges of our Supreme Court.

 

(Disclaimer: The Author was engaged as a part of the team arguing for the Petitioners in Crl. Appeal No. 1145 of 2017)

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

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

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

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

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

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

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

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

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

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

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

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

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Filed under Judicial Accountability, Jurisdiction, The Judiciary

The Supreme Court’s Judgment on the Sale of Liquor along National Highways

In a judgment delivered earlier this week, a three-judge bench of the Supreme Court issued directions to the states and union territories to desist from granting licenses for the sale of alcohol along national and state highways, and also directed that no liquor shop be located within five hundred metres of the highway. Although the Court began its judgment with a nod to judicial review, in my view, it failed to demonstrate the legal source of its power to pass the directions that it did. This is evidenced by its reference, in paragraph 24(vii), to the constitutional catch-all:

“These directions issue under Article 142 of the Constitution.”

As I have argued before, however, Article 142 is not a carte blanche; it specifies that “the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.” A preliminary condition for the applicability of Article 142, therefore, is that the Supreme Court act within its jurisdiction. One aspect of this, surely, is that the Court act in accordance with the separation of powers, even if it is the loose and flexible separation of powers that exists under the Indian Constitution. Now, under the Constitution, the power to grant liquor licenses rests with the states (under List II of the Seventh Schedule), and indeed, this legal fact was admitted by the Court  in paragraph 13. Directions to the state governments not to grant licenses for alcohol shops appear to encroach directly upon the legislative function, and therefore – prima facie – fall outside the “jurisdiction” of the Court.

The Court made two arguments to justify this exercise of power. First, it referred to a number of government policy documents that drew a correlation between alcohol consumption and road accidents. It also referred to the fact that the union Ministry had issued circulars “advising” the State governments not to grant any new licenses to liquor shops along the highways. However, at no point did the Court hold or observe that these policy documents or circulars had any kind of statutory or legal force. And in any event, as the Court itself admitted, the circulars were limited to the national highways, since the Union had no jurisdiction over state highways. In its judgment, however, the Court extended its directions to both national and state highways, and provided this by way of justification:

The power of the states to grant liquor licences is undoubted. The issue is whether such liquor licences should be granted on national and state highways at the cost of endangering human lives and safety. In our view, which is based on the expert determination of the Union government, we hold that the answer should be in the negative.”

With respect, this is not the issue. The issue is whether the Court is acting within its jurisdiction by taking over the function of the state legislatures to regulate liquor licenses, and on that question, the judgment remains silent. While the reasoning would be unexceptionable if it was in the Statement of Objects and Reasons of a Bill being tabled in a state assembly, it fails to address the essential issue of the Court’s jurisdiction, which is the precondition to the exercise of Article 142 power. Reference to the “expert determination” of the Union government does not help, because the question is not whether the Union government’s determination was correct or incorrect, but which body is authorised to act upon that determination.

Secondly, the Court made a brief mention of Article 21, observing that “… the court [is] not fashion[ing] its own policy but enforc[ing] the right to life under Article 21 of the Constitution based on the considered view of expert bodies.” While this pithy formulation is not developed further, an argument could be made that in granting liquor licenses along state highways, the state governments are failing in their positive duty to protect the fundamental right to life under Article 21 of the Constitution. Consequently, the Court’s directions – under Article 142 – are within its jurisdiction, since the Court is only performing its constitutional duty to ensure that the State abides by fundamental rights (whether in their negative or their positive aspects).

However, if this was the legal foundation of the judgment (and I can see no other), then the Court – I would suggest – was required to rest it on firmer evidentiary foundation than it did in the present case, and also, to provide a legal test for the degree of proximity required between State (in)action and the loss of life, for Article 21 (in its positive aspect) to be attracted. There are a lot of things that the State does or does not do, that ultimately affect peoples’ lives. For instance, people would probably live longer, and there would be fewer deaths by heart attacks, if the State was to ban all junk food. That, however, would not justify the Court invoking Article 21 and directing the State to ban all junk food.

The Court – as pointed out above – referred to the Union’s circulars and policy documents, which had found a correlation between access to liquor along highways and road deaths, and then observed that it would defer to these findings. However, this was not a case where the Court was adjudicating upon the validity of administrative action, where a simple, deferential approach would be appropriate. Here, the Court was using the Union’s policy documents to make a finding that the states were in breach of their obligations under Article 21. This, I would submit, requires more exacting scrutiny (and a legal test of causation) than what the Court engaged in.

Lastly, although the Court correctly followed precedent in holding that there was no fundamental right under Article 19(1)(g) to trade in alcohol, in my view, it missed an important aspect: while the right to trade in alcohol might not be a fundamental right, surely the right to consume alcohol – as an aspect of personal choice – is a fundamental right (Article 21). The Court may still have returned a finding that the limited removal of access to alcohol along highways did not affect the content of the right in any meaningful way, but it at least ought to have acknowledged the existence of the right, and engaged with the fact that there was some interference with it.

Unlike some recent orders delivered by other benches, the Supreme Court’s judgment in this case made a substantive attempt to ground itself within the parametres of the Constitution. In my view, however, in order to be persuasive, its reasoning needed to be substantially stronger than what it was.

 

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Filed under Article 21 and the Right to Life, separation of powers, The Judiciary

Uttarakhand High Court “bans” Alcohol Consumption

Last week, the Supreme Court mandated the compulsory playing of the national anthem in cinema halls, without considering whether it had the jurisdiction or power to do so under the Constitution. The disease seems to be infectious. Yesterday, the High Court of Uttarakhand took it upon itself to ban the consumption of alcohol in three districts in the State of Uttarakhand. Like the Supreme Court’s order, the strange thing about the Uttarakhand High Court’s judgment (which runs into 34 pages) is that the public interest petitioner never even made a prayer for banning. The petition was about the alleged fact that the Government had opened a liquor bar in Haridwar, in contravention of its own Government Order, passed in 2002, which imposed prohibition within a 1.6 kilometre radius of Haridwar.

This is a rather narrow and specific prayer. That does not, however, stop the High Court from embarking upon a moralising homily about alcohol consumption and its ill effects. After that, the High Court cites a number of Supreme Court judgments for the proposition that there is no fundamental right to trade or conduct commerce in alcohol. And then comes the zinger:

“The State Government has imposed a ban on sale of liquor at Char Dhams but in order to give more sanctity to the government order and with a view to save the health of people living in the districts where these Char Dhams are located, the State Government should impose complete prohibition. The prohibition in these areas would bring peace and harmony. It is the poor segment of the society which spends more money on liquor than on food leaving their family and children in misery. The loss of revenue would be compensated by restoring the health of the society. The societal interest in every individual is prolonged by ensuring his healthy life. The use of intoxicants, drugs and liquor, in fact, affects the morality. Use of alcohol causes depression. It damages the liver. It may cause Cancer as well. The long-term consumption of liquor/alcohol results in death of brain cells. It may result in cirrhosis including Pancreatics. It also affects the social fabric of the society. Large number of devotees from all over the country visit Chardham in the State of Uttarakhand… The State Government, though, has taken laudable steps for prohibiting the sale of liquor in specified areas but taking into consideration the ever increase consumption of alcohol, more particularly in younger generation, the complete prohibition on possession, distribution, collection, sale, purchase or consumption of liquor/alcohol, including beer and intoxicants, is required, at least, in the districts where Chardhams are situate, to begin with. Similarly, the possession, distribution, collection, sale, purchase or consumption of tobacco is also required to be totally prohibited within a radius of five kilometres from Nanakmatta, Ritha Sahib and Hemkund Gurudwaras.”

This is all very lovely and quaint. It’s also legally irrelevant. All the Supreme Court decisions that the High Court cites are about the constitutional validity of  a complete or partial State-imposed prohibition, not about the Court itself imposing prohibition in the absence of any law. Much like the Supreme Court last week, the High Court seems to suffer from a rather basic confusion between what is desirable, and what is legal. Throughout the 34-page long judgment, the High Court cites exactly one constitutional provision: Article 47, which provides that “the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.” The Court goes to the length of quoting the Constituent Assembly Debates for the purpose behind Article 47, but strangely, seems to be unaware of the existence of Article 37, which begins with the words “the provisions contained in this Part shall not be enforceable by any court…”

There is little ambiguity in the phrase “shall not be enforceable by any court“. To convert it from passive to active voice, it means that the Constitution prohibits the Court from enforcing a Directive Principle of State Policy. One would have expected the Uttarakhand High Court to at least invoke Article 21 in order to provide the regulation, customary fig-leaf of legitimacy, but even that is nowhere to be found in the judgment.

Under a Constitution that makes the judiciary the final arbiter of its own powers, the only effective check upon it is self-restraint. The last two weeks have shown that when it comes to directly encroaching upon personal rights and freedoms, that self-restraint is in short supply.

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Addendum: Not Just a Structural Issue

On the SpicyIP blog, Thomas J. Vallianeth has a response to my previous short piece, pointing out plagiarism in some of the Supreme Court’s important constitutional judgments. Thomas writes:

“Gautam in his piece suggests that un-originality in judgements is a consequence of the approach to writing judgements; that they are often simply a collection of facts, precedent and a skimpy analysis following this, leading to a conclusion. This is a consequence he says of the manner in which judgements are written – by adopting parties’ submissions and adding some analysis to this. While this may be a large factor, what I think is more of a causal factor in this problem is the workload that judges have to deal with. Daksh, an organisation based out of Bangalore that works on, among other things – judicial delays, by analysing caseloads that judges are faced with, highlights how judges are severely overburdened with case load. Recently, at a lecture hosted by them, they offered a brilliant approach to better the quality of judgements that come out of the higher judiciary. They suggest that the reason a judge would opt to be part of the higher judiciary is largely due to intellectual rigour that the position demands and therefore is best incentivised to deliver good judgements if they have the satisfaction of effectively engaging in the exercise that the writing demands. This is virtually impossible with the current workloads that these judges are occupied with – a problem that is compounded by the huge number ofvacancies that High Courts in India have at the moment.”

There is a lot of truth to this. Having spent six months with a High Court judge, I can personally attest to the clogged board, the mounting backlog, and to how hard and how continuously judges have to work. There is precious little time for thoughtful reflection and engagement with the legal issues; as one judge remarked to me, paraphrasing Lord Denning, “we would like to be architects, but constraints of time compel us to be masons.”

So there is no doubt that structural reform is necessary if we want to improve the quality of judgments. I do fear, however, that if we simply stop at the backlog, we risk missing the fact that the cause of the backlog is not simply structural issues beyond the control of the judges themselves – indeed, quite the contrary. Consider the following:

  1. Earlier this year, former Supreme Court judge Markandey Katju moved the Supreme Court, through senior counsel Gopal Subramanium, against a Parliamentary resolution condemning his comments on Mahatma Gandhi and Subhash Chandra Bose. Parliamentary resolutions have no legal force, Katju’s right to free expression had not been inhibited in any conceivable way, and the petition was manifestly ill-founded. Yet a three-judge bench actually heard this case for a significant while, and then asked the Attorney-General as well as senior counsel Fali Nariman to assist it in the matter. It was reported (I can’t vouch for the accuracy) that one of the judges told Katju to “get ready for a debate”. I don’t know what has happened after the hearing, but it is difficult to understand why the bench did not dismiss the petition in a few minutes (as happens to most other petitions), and required not just hours to hear it, but to then also (potentially) waste the time of the Attorney-General and Fali Nariman on this point.
  2. In October of this year, the Supreme Court heard detailed arguments on whether “the Sanskrit shlokas from the hymn, Venkatesa Suprabhatam, can be recited to wake up Lord Vishnu at the Padmanabhaswamy temple in Thiruvananthapuram.”
  3. On September 1 of this year, the Supreme Court handed down a judgment pertaining to an incident from 1992, where a UP bus conductor was accused of carrying 25 passengers without a ticket. The Supreme Court was the third judicial institution to hear this dispute – the Labour Court and the High Court had already adjudicated the matter, and passed judgments. Nonetheless, the highest court in the land saw fit to admit the appeal, hear it, and then write a seventeen page judgment on the point. I wonder if there is any other Supreme Court that hears cases of this kind.
  4. The case mentioned above is not an isolated instance. As anyone who has stepped into the Supreme Court will testify, the Court regularly hears cases that simply have no business before it. A study by Nick Robinson last year that constitutional cases comprise around 7% of the Court’s docket. Obviously, there are cases other than constitutional cases that need to be heard by the apex Court, but a substantial chunk of it ought to be finally resolved by the state High Courts, at most.
  5. There is virtually no time limit imposed upon the oral arguments made by senior advocates. The Shreya Singhal Case – which, at the end of the day, involved three legal issues, none of which was of insurmountable complexity – was heard twice, and each time it took weeks. A Constitution Bench heard the NJAC challenge for months. The criminal defamation challenge was heard for weeks. In these cases, counsel literally took days to complete their arguments. Again, as anyone who has been in the Supreme Court will know, an extraordinary amount of time is taken up by counsel reading out pages and pages of judgments, time that can very easily be shortened.
  6. The problem is compounded by the fact that big-ticket constitutional cases have an exploding number of petitioners seeking impleadment, with the end result being that arguments are regularly replicated. This is evident from a quick perusal of these judgments, where the phrase “Learned Shri X adopted the submissions of Learned Shri Y… he would also submit…

It should therefore be clear that heavy dockets are not entirely beyond the control of judges themselves. Judges regularly admit matters that have no place in a country’s Supreme Court, and they do not restrict senior counsel to time limits when arguing. Yes, we need structural reform; but we cannot also absolve the judges of personal responsibility. Much can be summed up by that old phrase: “physicial, heal thyself.n

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