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

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


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

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

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

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

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

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

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

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

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


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

 

“A petty autocracy”: The Supreme Court’s evolving jurisprudence of the sealed cover

The present Chief Justice of India likes sealed covers. In the ongoing National Register of Citizens Case, he has – on multiple occasions – asked the state coordinator of the NRC to submit the details of his work to the Court in a “sealed cover” (including, on one occasion, refusing to share the contents of the “sealed cover” with the Attorney-General for India).  In the Rafale Case, he asked the Government to submit pricing details about its purchase of the Rafale aircraft in a “sealed cover”. And in the case involving corruption allegations at the CBI, he directed that the CVC’s report about the CBI Director Alok Varma be given to the latter in a “sealed cover”.

These constant references to “sealed covers” may sound like the stuff of thrilling detective novels, but they also happen to be deeply and profoundly anti-democratic. Let us start with the foundational principle: in India, we are committed to the value of open justice. The Courts are public forums, their work characterised by transparency and openness to public scrutiny. Judgments – and the reasons underlying them – must ordinarily be public. The Indian Supreme Court is not the Court of the Star Chamber, with its opaque and secretive processes. In a democracy, it is of fundamental importance that justice be done in full public view.

Like any principle, the principle of open justice, of course, has its exceptions. The concept of an “in-camera trial” is well-known: there are a handful of cases whose sensitive nature requires that they be closed off to the public, especially when matters of personal privacy are involved. This, however, is meant to be a situation of the last resort, taken only after hearing arguments on the issue, formally enjoined by the judge, and not a decision that she ought to take lightly.

Next, consider the following situation: an election is challenged on the ground of procedural irregularities. The results of the election are due to be announced before the Court can adequately hear and decide the case. To prevent a fait accompli, the Court asks the election authorities to refrain from declaring the results, and – instead – hand them over to the Court in a “sealed cover”, pending the adjudication of the dispute. Here, the issue is purely procedural: the material submitted to the Court has nothing to do with the Court’s final decision, and it therefore raises no concerns of open justice.

There is a third category of cases: those involving State secrets. Consider, the famous example provided by the Supreme Court of the United States in The Pentagon Papers Case: that of troop movements in wartime. Nobody would suggest that details of this kind ought to be made public. But then again, nobody would suggest that this is a matter that is justiciable in the first place: issues involving State secrets fall within the domain of Executive prerogative, a domain where courts cannot tread. Of course, there can be – and often is – a dispute over whether something qualifies as a State secret or not – that, indeed, was the whole dispute in the Pentagon Papers Case, and that is certainly a matter for the courts to decide. However, once the courts have decided (with due deference to the Executive), then there can be no halfway house: if the question involves a State secret, then it is the absolute prerogative of the Executive to deal with the information as it sees fit. If it does not, then the traditional principles of open justice and open democracy apply: if it can be shared with the Court, then it must be shared with the public.

The problem with the Chief Justice’s evolving jurisprudence of the sealed cover is that in its arbitrary and ad-hoc character, it has become a matter of personal fiat, rather than a careful consideration of balancing the core principles of open justice with the narrow exceptions that may occasionally apply. Consider, for instance, the Rafale issue, where the challenge is to the government’s decision-making process as part of public procurement in a defence deal. Now, the government argues that the price at which it obtained the fighter jets cannot be revealed, as that would compromise the deal itself: in short, the determination of pricing is a core executive function when it is striking defence deals, and not something for the Court to go into. If you agree with the government’s argument, then there ends the matter: the question of pricing has to be excluded from the proceedings altogether. If you don’t agree with the government’s argument – if you believe that the corruption allegation cannot be decided without looking into the question of pricing – then that logic has to be carried through to its conclusion: the pricing details, along with the rest of the decision-making process, has to be subjected to judicial review, and ipso facto be public. What the Chief Justice has done, instead, is to take the pricing details in a “sealed cover”, with some stray observations about how, at this time, he does not consider it relevant to the case. Fair enough – however, why ask for the pricing to be made available only to him and his brother judges, if he does not consider it relevant? And what if he changes his mind later on? Will we get an affirmative judicial finding on whether or not there was corruption in the Rafale deal – a crucial public issue – on the basis of three judges’ reading of what is contained in a “sealed envelop”?

While the fate of the “sealed envelop” in the Rafale case lays bear some of the contradictions of the Chief Justice’s approach, in the NRC case, that approach has far more sinister results. Unlike Rafale, NRC is about core fundamental rights, including the right of citizenship. As I have argued before, the Chief Justice with his “sealed covers” (and “confidential reports”) has essentially set up a regime of secret justice, where individuals are faced with life-changing (and life-destroying) decisions about their rights, without any chance to challenge or interrogate them.

What explains this? The Chief Justice’s thought process – I suggest – was laid bare yesterday, in a throwaway remark that he made during the proceedings concerning the third of my examples – the CBI case. The Chief Justice’s rationale for handing over the CVC Report to Alok Verma in a “sealed cover” was that “public confidence in the CBI” must be maintained. Now consider the facts: the two topmost officials of the CBI accuse each other of graft, the government (long-accused of treating the CBI like a “caged parrot) intervenes in a manner that is questioned by many, and the CVC is brought in to investigate the CBI Chief. All this, we are expected to believe, would not affect “public confidence” in the institution, but making the CVC Report public would somehow achieve that.

But this is nothing better than a complete infantilisation of the public: the Chief Justice is essentially telling us, in his best Colonel Jessup impression, “You want the truth? You can’t handle the truth.” The truth will stay between the high officials involved, and then a second set of high officials – the judges – will render judgment on the basis of that cloistered truth – all of which is in keeping with the sanctity of the CBI. The only threat, apparently, is of the public getting to know what the CVC has to say about the CBI Chief. This is an approach that treats people as passive subjects of justice instead of active citizens, and makes of judges that “bevy of Platonic guardians” that Judge Learned Hand was so terrified of: “sit back, relax, and let the grown-ups handle it.

A judicial regime in which the first recourse is to the “sealed cover” – thus setting up a secret dialogue between the Court and the State, to the exclusion of the citizen – has no place in a democratic set-up. Rather, it resembles a petty autocracy, where the citizens are viewed as irritants, who have no stake in the process of justice, and just need to let the guardians “get on with it.” It was a regime that our constitutional framers explicitly rejected when they made India the first country in the world to initiate universal adult franchise in a single stroke, notwithstanding the poverty and the illiteracy. In 1947, there were those who resisted this, echoing the colonial logic that Indian could not be trusted to think and decide for themselves, and would have to be led and guided until they became mature enough to do so. The constitutional framers, however, took a leap of faith, and chose the path of democracy and openness. The “jurisprudence of the sealed cover” makes a mockery of that faith.