| Mysteries within
The author is senior advocate, Supreme Court, and former lecturer of law, Oxford University
The Supreme Court of India closed for summer recess on May 9, 2003. Unlike appellate courts in other important common law jurisdictions like United Kingdom and United States of America, the closing or opening of a term of sittings of our Supreme Court are not heralded by scholarly papers or newspaper articles. It is probably a reflection of prevailing lack of public knowledge about how the Supreme Court functions. Furthermore, the very manner in which the Court functions makes it difficult for the public to evince interest in its functioning. The need to demystify the functioning of the Supreme Court is long overdue.
The mist around the highest temple of justice has of course been dispersed to an extent by activists who have sought the Court’s help in public interest matters. Some remarkable salutary work has been done by way of public interest litigation, a brainchild of the Court that boasted of Chief Justices Chandrachud and Bhagwati and the inimitable, redoubtable Justice V.R. Krishna Iyer. Giving pavement dwellers of Mumbai a right to housing, or unrepresented under-trial prisoners legal aid, or bonded labour an escape from misery, is one thing, pushing the Central government or the Delhi government to implement clear fuel (compressed natural gas and low sulphur diesel) too has its patent significance — but whether Yanni should be allowed to perform near the Taj, or whether all advertising billboards within the municipal limits of Delhi should be removed is quite another matter.
There is demand enough on the time of the Supreme Court to clarify or pronounce on the law. The Court can hardly be justified in taking over routine tasks of municipal governance. But lack of governance by the executive branch forces the Court to step in.
There is a familiar debate amongst legal scholars about the nature of judicial decision-making. How do judges decide cases' Do judges merely interpret and apply the law laid down by legislatures or do they also make law like the latter' Without going into the merits of the opposing arguments some relevant dimensions have to be noticed. The Court has frequently taken assistance from experts (for example, NIRI for environmental pollution and IARI for automobile emissions). But the fact is that experts too often disagree and at times very intensely. We have not perfected the concept of the Brandies Brief used by the US supreme court for socio-economic analysis of competing claims. So what we have at best, are instinctive responses to selective information; add to that the pressure of time and crowded courtrooms when matters of public importance are heard. It is not surprising therefore that some cases continue to be heard for well over a decade, and the volumes of petitions, documents, and periodic orders passed by the Court grow apace.
The Bandhua Mukti Morcha case was heard for the first time in 1984 and was finally disposed of by Chief Justice V.N. Khare in 2003, but even then by remanding the residual issues to the High Court. The shifting of industries from Delhi that began by way of the 1995 petition by M.C. Mehta is still being heard. In these circumstances it is not surprising that the Supreme Court changes its mind from time to time. That in turn encourages a spate of review petitions (such as in the case of Captain Satish Sharma) in which previous orders or directions are reversed. Now there is a further avenue called curative petition. It is a virtue indeed for the court to consider itself fallible but that should not mean becoming fickle!
The uncertainty and lack of finality of pronouncements are further exacerbated by the “hierarchical” system of Benches — the routine two judges Bench, the larger three judges Bench, the normal five judges Constitution Bench, followed by seven, nine or eleven judges Constitution Benches. The largest Bench ever that has heard and pronounced on the Constitution was in the Keshavnanda Bharti case on the right to property. The matter was heard by thirteen judges who wrote eleven judgments. Deciphering the majority and minority judgment on each issue raised was a complicated task, and the Court therefore wrote a summary of its findings.
Decisions of the Supreme Court, irrespective of the size of the Bench, have equal binding force. But can they truly be called decisions of the Supreme Court when they are only decisions of a majority of the judges who sat on that particular Bench' So, be it property rights, personal rights, freedom of expression or even a case of the death sentence, for each pronouncement of law by two, three, five or even seven judges, there are many more whose views are not known or are known only as part of smaller Benches that perhaps are overruled.
Theoretically then, the death sentence was upheld by 4-1 majority in Bachchan Singh’s case. Yet 11 other Supreme Court judges’ views remained unknown. There is no reason to believe that a majority of those 11 would not take a view that the dissenting judge, Justice Bhagwati, took in holding the death sentence to be unconstitutional. Curiously the detailed dissenting judgment came many months after the main prominent.
The saga of A.R. Antulay’s case makes interesting reading in this context. It was heard by a Constitution Bench of five judges presided by Justice D.A. Desai. The trial of Antulay by a High Court judge was approved. Almost 100 witnesses were examined. On a particular issue the matter came back to the Supreme Court and was heard by a Bench of two judges. That Bench had some doubts about the earlier decision, so the matter eventually ended up before seven judges. This Bench quashed the trial by a 5-2 majority. In effect, seven judges of the Supreme Court approved the trial (5+2) and only five disapproved. Yet the matter was decided in Antulay’s favour.
Meanwhile enormous amounts of money and energy had been exhausted. Antulay had been put through a great deal of stress. There were no apologies, no regrets. Antulay was probably happy enough and relieved that the immediate pressure was eased.
Although we spend a great deal of effort on reform of the adjudicatory system, and more recently on the process of appointing and removing appellate judges, none of it seems to be concerned with the structure of the Supreme Court (and indeed the High Courts as well). The Supreme Court started as an apex Court with six judges. It swiftly grew to nine judges and began to sit in two Benches. But that is a far cry from the present situation of twenty five judges who sit in about eleven or twelve Benches.
Since the provocative decision to elevate a relatively junior puisne Judge to the Chief Justice’s post and the consequent resignation of four of his seni- or colleagues, the seniority principle has been respected. But that has had its own unsatisfactory consequences. In 2002, Chief Justice Barucha formed a Bench of eleven judges to hear the long overdue matter of minority educational institutions. But he did not preside himself because after a term of six months as Chief Justice, he was to retire on May 6, 2002.
Justice B.N. Kirpal presided over the Bench in Court No.2 for a few weeks before moving to the Chief Justice’s Court as the successor to Chief Justice Barucha. Within days of handing down the judgment in the case, Chief Justice Kirpal retired on November 8, 2002. He was succeeded by Chief Justice G.B. Pattanaik for about five weeks. The present Chief Justice, V. N. Khare, took over on December 19, 2002 to preside over the Court till May 2, 2004. Along with short tenures of the Chief Justices is the added uncertainty caused by several retirements of puisne judges each year.
This is an extremely unsatisfactory situation. The effectiveness and credibility of the Supreme Court as a pillar of justice in governance is involved here. We need to pay greater attention to it. But that will be possible only if ordinary people get to know the Supreme Court better. To begin with the Court could set up a public relations office and appoint a spokesperson. There is something to learn from the courts of the US in the very difficult situation of pronouncing on the outcome of the last p residential election.