Sunday, April 13, 2008

Mandal II Judgment: Some preliminary thoughts

1. Merits of Multiple Judgments: Arun has referred in the pervious post to the problems posed by different judgments even while the Judges agree on many of the questions before them. While his view is understandable from the point of view of a reader, who has the difficulty in finding the ratio, I must say that diversity of opinions, even while the Judges concur on the crucial issues, adds to the vibrancy and development of the Constitutional jurisprudence. If they have different views, why should they not give separate opinions? Even when they want to add or supplement, a common judgment will not do justice in giving due credit to their individual contributions. It is not just language, what the Judges contribute in terms of concepts, and interpretation add to jurisprudence.

Take Justice Raveendran’s judgment, for instance. Even while agreeing with the Chief Justice on most of the questions, I find his judgment valuable for the important contributions/additions it makes. These would have been buried, if Justice Raveendran chose to give his inputs to CJI’s judgment, and the world would not know that it was Justice Raveendran who was the author of those contributions/additions.

Take Pasayat-Thakker Judgment, for example. Though Pasayat must have been the principal author, Thakker too could have contributed, we don’t know. These nuances must be transparent. Individual Judgments help this transparent exercise. Well, one could ask what about resultant confusion? That is where as students of constitutional law, we need to use the standard tools of finding out the ratio, and if that is not possible, there is the option for the parties to go back to the same bench again for clarification. Judges don’t clarify their judgments in public, and their private clarifications don’t carry weight. In complicated cases like this, individual opinions help to understand the various nuances, and understand individual Judges’ contributions better.

It is possible that some Judges tend to be repetitive in their individual judgments, even after reading the drafts of their colleagues. In that case, those Judges would have exposed themselves before the world at large, for being superfluous, and redundant. Therefore, I would say, the four Judgments on Mandal II have been by and large a rewarding experience, in terms of contribution to Constitutional jurisprudence, even while one may have serious reservations about individual judgments. One does not feel, after reading them, that a judgment has been superfluous, or redundant. In the debate on the blog a year ago, for which he had given the link, Arun had defended the virtues of multiple judgments, which I found very persuasive. His stand on the Ashoka Kumar judgment perhaps reflects the impatience of a reader, struggling to find the ratio.

2. Were the Judges shackled by Indra Sawney-1 judgment, which was delivered by a larger Bench?
This question assumes that the Judges in the Ashoka Kumar Thakur case were indeed in favour of the petitioners, who challenged Article 15(5), and the law enacted under it. But there is no evidence of any basis to such an assumption, except in the case of Justice Bhandari. In his answer to Q.No.4 towards the end, he says Sawhney 1 compels him to conclude that use of caste is valid. Although Judges cannot write their personal views in the Judgments, Justice Bhandari’s reference to the binding nature of Sawhney 1 may not be according to Judicial decorum.

3. The mystery of two-page summary read out by the CJI on April 10: I understand that the CJI read out a two-page summary listing the major points of agreements among the 5 Judges. I also understand that he corrected himself, as far as the direction to the NCBC for a periodical review is concerned. While Justices Pasayat and Thakker wanted once in a five-year review, CJI and Justice Raveendran had proposed once in a 10-year review. Justice Bhandari chose to be silent. His silence, though must be interpreted in favour of Justice Pasayat, as in substance, Justice Bhandari seemed to be in sympathy with Justice Pasayat. However, in the two-page summary, the Chief Justice appeared to have clarified that he and Justice Raveendran too favoured once-in-five years-review. One does not know whether this summary was signed by all the five. It has not been put on the website. Like the mysterious summary hastily read out by the then Chief Justice in the Keshavanand Bharati Judgment, the latest summary may be an important one in unraveling some of the nuances.
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