While delivering a speech on August 22, the Chief Justice of India, D.Y. Chandrachud said that one of the missions of the Supreme Court Collegium was to ensure that the richness and diversity of India were represented in the highest court. He claimed that some people criticise the Supreme Court for being a polyvocal court, but he would rather consider it a “people-centric court” as it is not unusual for a judge from Maharashtra sitting on a bench with a judge from West Bengal to determine a case from Haryana.
While the CJI may indeed be correct in describing the court as a people-centric court, the perception that the Supreme Court is a polyvocal court has gained currency in recent years because of the fact that there are too many judges sitting in different benches interpreting the law and the constitution in conflicting terms, giving rise to uncertainty and incoherence as to the correct legal position on any issue.
On Friday, a division bench of the Supreme Court comprising Justices M.M. Sundresh and J.B. Pardiwala orally observed that the court’s earlier order to allow a plea by activist Gautam Navlakha, for his house arrest, did not deal with the merits of the overall case and proceedings against him.
A two-judge bench, comprising Justices K.M. Joseph (who has since retired) and Hrishikesh Roy, had on November 10 last year, granted Navlakha’s plea for house arrest, on the basis of medical reports and his age (70 years). The bench had noted that the trial of the Bhima Koregaon case, in which he is an accused, is unlikely to take place in the foreseeable future, even as the charges have not been framed. To avail the facility of house arrest, the K.M.Joseph-Hrishikesh Roy bench had placed several restrictions on Navlakha’s freedom, and required him to provide local surety for a sum of Rs.2 lakhs, with a caveat that any violation of the conditions imposed may result in cancellation of the facility.
The oral observation on Friday (September 1) by the M.M. Sundresh-J.B. Pardiwala bench, therefore, has led to uncertainty about the previous decision granting house arrest to Navlakha on medical grounds.
The Wire breaks down the issues associated with the perception that the Supreme Court is a polyvocal court.
How did the Supreme Court become a polyvocal court?
The original constitution of 1950 envisaged a Supreme Court with a Chief Justice and seven puisne judges – leaving it to parliament to increase this number. In the early years, all the judges of the Supreme Court sat together to hear the cases presented before them. As the work of the court increased and arrears of cases began to accumulate, parliament increased the number of judges from eight in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986, 31 in 2009 and 34 in 2019 (current strength).
Along with an increase in the number of judges came an increase in the diversity of opinions and beliefs.
Additionally, due to the heavy workload of cases, the Supreme Court could not sit in benches that make up a significant portion of the total judges, instead they sit in smaller benches in pairs of two or groups of three and come together in larger benches of five and more only when required to do so or to settle a difference of opinion, or controversy. As a result, the Supreme Court does not speak in one voice but with “12 or 13 different voices,” as the legal scholar, Supreme Court advocate, Gautam Bhatia puts it.
Why is the Indian Supreme Court hailed as the “people’s court”?
Legal scholar Nick Robinson writes that wide access also has clear practical benefits. He writes: “Take the practice of admission day, where all cases filed before the court are briefly heard. Judges find that they can often determine more efficiently whether a case should receive a regular hearing through a short verbal exchange with a lawyer than by reading an often-wandering brief that may not adequately represent the issues at stake. More importantly, accepting a large number of cases for regular hearing allows the Indian Supreme Court to actively police the high courts and the lower judiciary. It also strengthens the Supreme Court’s check on the executive and legislature, allowing it to make its presence known on a wide range of matters that might escape the attention of a less active court,” he said.
Such interventions have entitled the Supreme Court to be called a “people’s court”, the “last resort for the oppressed and bewildered”, and the “most powerful court in the world”, and so on.
As a polyvocal court, the Supreme Court has invited criticism from scholars. Why?
Each bench of the Supreme Court has their respective views, and during hearings such differences appear quite starkly. Such differences in opinions especially arise in cases of PILs where some judges believe in a stricter intervention in cases of lapses in governance while others rarely pursue intervention. Such differences in opinions and actions result in a confused production of doctrine.
As Gautam Bhatia argues, “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.”
For example, in the first decade of the 2000s, Justice Arijit Pasayat was known for handing out death penalty judgments in cases of heinous crimes such as rape and murder, and his bench frequently upheld death sentences, but on the other hand, Justice S.B. Sinha argued on the death penalty’s arbitrariness and his bench interpreted the death penalty doctrine such that it almost never applied. Legal predictability and stability are integral to the rule of law, however, in the case of polyvocal courts, it becomes difficult to practice.
Another important issue is a new land acquisition law that was introduced in India in 2013. The controversial part was Section 24 of the 2013 Act which said, “If in land acquisition proceedings, compensation had not been deposited in the accounts of the beneficiaries for a period of five years from the date of the award, the proceedings would lapse, and the land be returned to the owners.”
The legal dispute centred on what the term “deposit” meant. Three Supreme Court judges ruled in the matter of Pune Municipal Corporation in 2014 that the clause required the compensation to at least be deposited in court rather than just the government treasury. In deciding matters involving land acquisition, the Supreme Court issued at least 17 documented decisions over the course of the following three years, in addition to more than a thousand decisions from different state high courts. This case was decided by a three-judge bench comprising the then Chief Justice of India, R.M. Lodha and Justices Madan B. Lokur and Kurian Joseph, and the judgment was authored by the Chief Justice Lodha.
However, in February 2018, a different three-judge Supreme Court bench disagreed (in the case of the Indore Development Authority v Shailendra (Dead), saying that it was sufficient for the money to be paid into the treasury. This bench consisted of Justices Arun Mishra, Adarsh Kumar Goel and the late Mohan M. Shantanagoudar.
Justice Arun Mishra authored the judgment, while Justice Shantanagoudar wrote a dissent note, saying the case ought to be referred to the Chief Justice of India for being assigned to a larger bench, in view of the previous decision of a three-judge bench in Pune Municipal Corporation.
In the Pune Municipal Corporation case, the court had held that land acquisition could be declared void under section 24(2) of the Land Acquisition Act of 2013 “if compensation had not been deposited in the bank accounts of the landowners or with the court.” However, in the Indore Development Authority (2018) case, the Mishra bench ruled against the same, without any regard to judicial discipline.
As a result, in a significant number of cases, the government was no longer required to return the land it had acquired in accordance with the interpretation of the Pune Municipal Corporation. In order to resolve their disagreement because they were bound by the decision of a coordinate bench, the three judges would typically have had to document their disagreement and ask the Chief Justice to appoint a bigger bench (of five judges).
Arguing that Pune Municipal Corporation was per curiam and hence not a legally binding judgment, two of the three judges in the Indore Development Authority (2018) case, Justices Arun Misra and Adarsh Kumar Goel determined they did not need to do that. It’s interesting to note that the third judge refused to declare Pune Municipal Corporation to be per curiam even though he agreed with the other two judges’ interpretation of section 24.
The obvious explanation for this is that the notion of per curiam, which in common law nullifies a judgment, is only occasionally employed. Its use is only permitted when a judgment disregards a rule of law that was binding on it or a precedent that was also binding. In actuality, the two judges in the Indore Development Authority (2018) case were unable to prove this; their chief argument was that the Pune Municipal Corporation had disregarded a number of regulations outlined in the previous Land Acquisition Act.
In Justice Shantanagoudar’s view, the judgment in Pune Municipal Corporation was not rendered per incuriam (as held by the other two judges on the bench) as the conclusion was reached by proceeding in detail on the interpretation of the relevant statutory provisions. Therefore, he suggested that the proper course before the bench was to refer the matter to a larger bench as a bench must follow the decision of a coordinate bench.
The case was later referred to a five-judge bench led by Justice Arun Mishra which overturned the Pune Municipal Corporation judgment. It was argued by many that there was an apparent bias in the judgment being reviewed by the same judge who handed it. In effect, judicial bias was being incorporated into the very constitution of the bench. Justice Arun Mishra, however, had rejected the allegation of conflict of interest by refusing to recuse from hearing the case in a separate judgment.
Another recent example is the Supreme Court’s grant of bail to social activist Teesta Setalvad. A three-judge bench, comprising Justices B.R. Gavai, A.S. Bopanna and Dipankar Datta, while granting bail to her, orally expressed their disagreement with the judgment, rendered by a previous bench, holding her guilty of abuse of process, after refusing to make her a party to the case in Zakia Ahsan Jafri vs State of Gujarat.
In this judgment delivered last year, a three-judge bench comprising Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravi Kumar, had, without naming Setalvad and other accused, indicted them in paragraph 88 for keeping the pot boiling, for ulterior design, in the 2002 Gujarat riots cases, and insisted on proceeding against them in accordance with the law after bringing them to the dock. The bench gave a clean chit to the present prime minister, Narendra Modi, who was then the Gujarat chief minister, by absolving him of any responsibility for the riots. The Gavai-Bopanna-Dipankar Datta bench, however, refrained from delving into those issues in its written judgment, for reasons of judicial propriety.
Are polyvocal courts just propagators of judicial bias?
In India, the Supreme Court never sits in its full strength as a panel of 34 judges. Instead, in order to keep pace with the increasing number of cases due to the litigation boom in India, they usually sit in benches of two or three, in case of most judgments. This is argued to result in judges expressing their personal opinions through the judgments handed out by the benches. It is argued that such polyvocality in India results in judgments becoming an embodiment of judicial bias.
For this reason, as Gautam Bhatia says, the Supreme Court 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”.
Bhatia cites the example of the Devidas Tuljapurkar case, where the question of whether or not in the name of poetic license and freedom of expression, one could represent a historical figure by way of symbolism in an obscene manner arose. Justice Dipak Misra ignored precedents of over the previous 50 years in defence of freedom of expression and introduced a standard of obscenity applicable to only “historically respectable personalities.” The bench presided by him justified this by saying that the community standards become more stringent when used with regards to historically respected personalities, though he could cite no clear precedent to this.
In Subramanian Swamy, Bhatia says that Justice Dipak Misra 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 Tamil Nadu, concerning 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 Shyam Narayan Chouksey, (the national anthem) case, Justice Dipak Misra made the playing of the national anthem compulsory in cinemas before every film and thereby used judicial censorship to restrict a fundamental right. By directly restricting speech, it ensured that the deliberative process envisaged by the Constitution when it requires the State to “make a law” under Article 19(2) was rendered chimerical, and therefore, violated the separation of powers.
This judgment was, however, later modified by the interim orders of the bench of Justices Dipak Misra, D.Y. Chandrachud and A.M. Khanwilkar, making the playing of the national anthem before the film by the cinema owners optional.
In his interim orders in Sabu Mathew George, Justice Dipak Misra had passed interim orders on the “auto-blocking” of keywords for sex determination, supposedly justified under the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act which was enacted to put an end to female foeticides and the declining sex ratio, but without any consideration of the 19(1)(a) issues at play (including those of intermediary liability).
And in the Azam Khan case, Justice Dipak Misra had framed issues on whether political figures could be restrained from commenting on rape allegations, on the basis of another invented doctrine labeled “constitutional compassion”. In Kaushal Kishore vs State of Uttar Pradesh, a five-Judge Constitution bench of the Supreme Court, held that restrictions under Article 19(2) are exhaustive and additional restrictions not found under this article cannot be imposed on the freedom of expression of an individual. The bench also held in this case that a statement made by a minister cannot be vicariously attributed to the Government by invoking the principle of collective responsibility.
These five cases, Bhatia had argued, made it clear that Justice Dipak Misra did not consider the freedom of speech to be of much value. That was his personal prerogative; however, when in case after case, brought to the Court through flimsy PILs, he passed 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 became a serious problem, he suggested.
“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),” says Gautam Bhatia.
Being majorly two-judge benches, these Supreme Court benches rarely ever result in split judgments, according to Nick Robinson. This is because as per tradition, junior benches usually succumb to the views of the senior benches except in cases when there is a clear violation of precedents. “This means fewer judges routinely express their individual opinion, decreasing the number of voices, and chances for conflict, on the court, “Robinson further argues. Therefore, in essence, one of the most important features of constitutional courts of decisions being made through a collegial process where opinions are shared and deliberated upon between judges of different views, disappear.
Human rights defender, the late K. Balagopal, in one of his articles, says, “A sad fact about the Indian judiciary is that where the judges have felt an urgent ideological compulsion they have not let mere canons of discipline stop them. Judgments by much smaller benches than nine have prised open what the nine-judge bench declared to be the law to such an extent – while paying lip service to their duty of obedience to it – that most of the issues are again open for rewriting.”
What are the systemic solutions suggested to remedy the ill-effects of polyvocal court?
Justice P.N. Bhagwati in Bihar Legal Support Authority of India v, Chief Justice of India & Anr said: “The Supreme Court of India was never intended to be a regular court of appeal against orders made by the high court or the sessions court of the magistrates. It was created for the purpose of laying down the law for the entire country and the extraordinary jurisdiction of granting special leave was conferred upon it under Article 136 of the Constitution so that it could interfere whenever it found that the law was not correctly enunciated by the lower courts or tribunals and it was necessary to pronounce the correct law on the subject.”.
Relying on this judgment, many have suggested creation of an intermediate Court of Appeal between the high courts and the Supreme Court. Former Attorney-General for India, K.K. Venugopal, argued that setting up a Court of Appeal in each region would ensure that litigants can afford appeal at a much less expense. He further elucidates that proximity to the court of appeals will be “a boon to the common man.” If such a proposal were to be accepted, the Supreme Court judges would be able to hear cases in much larger numbers and offer their full deliberation to the cases they hear, he has suggested.
On the contrary, others have suggested using the existing constitutional provision – Article 130 – in favour of setting up regional benches of the Supreme Court. While most former Chief Justices of India had expressed their reluctance to use this provision, equating the Supreme Court’s prestige with its only seat in Delhi, the former Chief Justice of India, N.V. Ramana, had urged the Union government to set up regional benches of the Supreme Court to hear appeals, so that the Delhi bench could focus on cases regarding important constitutional matters. The former vice-president of India, Venkaiah Naidu, too, supported the demand for splitting the Supreme Court into four regional benches.
As a study details, it has been shown that appeals from all across the country constituted over 85% of the Supreme Court’s pendency in the last decade.
Former Chief Justice of India, T.S. Thakur, during his tenure (2015-17) had agreed to hear a PIL filed by an advocate, V. Vasanthakumar, seeking setting up of a National Court of Appeal. This petition, referred to a Constitution Bench in 2016, and last listed on August 30 last year, has since been pending. The then Attorney General, K.K. Venugopal, too, supported the petition.
The proposed reform of the Supreme Court would also align with the views of B.R. Ambedkar who, as the Chairman of the Drafting Committee of the Constituent Assembly, envisaged that the Supreme Court would lay down answers to substantial questions of law and not function as an ordinary court of appeal.
Pending the drastic reform of the Supreme Court, Gautam Bhatia’s suggestion that matters of constitutional nature be necessarily sent to five-judge courts instead of two-judge benches, appears to be a viable option to address the concerns over the polyvocal court at present.