[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]
In its judgment delivered on the 2nd of March (Shah Faesal v Union of India), while deciding whether the challenge to the alteration of Article 370 required to be referred to a bench of seven judges, a five-judge Constitution Bench of the Supreme Court had this to say about the importance of precedent in an adverserial system:
When a decision is rendered by this Court, it acquires a reliance interest and the society organizes itself based on the present legal order. When substantial judicial time and resources are spent on references, the same should not be made in a casual or cavalier manner. It is only when a proposition is contradicted by a subsequent judgment of the same Bench, or it is shown that the proposition laid down has become unworkable or contrary to a well established principle, that a reference will be made to a larger Bench. (paragraph 19)
Until very recently, this would have been a non-controversial reiteration of a proposition that virtually everyone believed was settled law. Unfortunately, however, these observations are flatly contradicted by everything that has happened since November 2019, in proceedings arising out of the Sabarimala “Review” order. These proceedings have been covered extensively on this blog, but suffice it here to recall that:
- The five-judge review bench (split three to two) – despite being unable to indicate any error in the original judgment – “referred” certain “questions of law” to a larger bench on the principal ground that these questions might arise in certain future cases before the Court.
- The five-judge review bench also justified this decision of referral by noting the existence of two prior five and seven-judge bench judgments, but failing utterly to show what the conflict was between them, or how they were irreconcilable.
- The new Chief Justice then established a nine-judge bench on the strength of this referral-in-review order. Before the nine-judge bench, the exact arguments that the Court makes in paragraph 19, quoted above, were made. Some of the judges on that nine-judge bench were also part of the Shah Faesal bench. Yet, the nine-judge bench decided to go ahead and hear the “referred” questions on their merits.
- To this day, there has been no explanation forthcoming from the Court how either of the two propositions set out in paragraph 19 – “a contradiction by a judgment of the same bench” or an “unworkable proposition” – were present in the proceedings arising out of the Sabarimala review. Nonetheless, the nine-judge bench is going ahead.
What, then, is the position of law on referral? Is it the law set out in paragraph 19 of Shah Faesal? Or is it what flows from the Sabarimala review order? And what is one to do when the same judges who sign on to paragraph 19 see no compunction in throwing its principle to the winds in a simultaneously progressing hearing?
Perhaps the only answer is to be found in the dialogue between Humpty Dumpty and Alice, in Lewis Carroll’s 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.”
* Any resemblance to the “Master of the Roster” is purely coincidental.
Constitutional Law and Philosophy 