Friday, February 11, 2011

An Injudicious Fraud

Guest post by B.N. Suchindran, an advocate of the Madras High Court.

“It is settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge.”
-        Bhagwati J., in D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378.

 Self restraint and recognition of the one’s own limitations are the need of the hour. In our constitutional scheme, the Supreme Court and High Courts are essentially courts that are meant to declare the law. Of late, too much of the “individual predelictions” of judges have been allowed to seep into the constitution. Hidden in the frequent praise for judicial activism, lies the spectre of an aristocracy of the robe. The judiciary is capable of subterfuge as much as any other organ of the state. Unfortunately, judges have become in Cardozo’s famous phrase, ‘knight errrants of the law.’

Certainty in the law is important for its development. It is the bedrock of true justice. As Seervai noted, “The greatest danger to the administration of justice and constitutional interpretation arises from the genuine desire of judges to do justice in each individual case.” The doctrine of precedent is itself an important check on the freedom of the judicial power.

And this uncertainty has been encouraged by the judicious ignoring of an important constitutional mandate. Article 145 (3) of the Constitution of  India states that the minimum number of judges who are to sit for hearing any case involving a substantial question of law as to interpretation of this constitution or for the purpose of hearing any reference under Article 143 shall be five. The use of the word ‘shall’ is clearly indicative of the mandatory nature of the constitutional mandate.

In the early years, the Court interpreted this to mean that it is only the constitutional question in a case that has to be decided by the constitutional benches and any other questions could be decided by a smaller bench. As the workload of the court grew the practice of having smaller benches has become the norm under the ruse that the law once having been declared a smaller bench is merely applying it. However, in many cases, the observation of smaller benches have substantially altered the interpretation of the provision.  In Union of India v. Raghubir Singh, (1989) 2 SCC 754, the Court had suggested that for the purpose of imparting certainty and authority to the judgement of the Supreme Court, it would be preferable if all judgements are rendered by Division Benches of at least three Judges unless it is not conveniently possible for compelling reasons.

A classic example is Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, where substantial changes to the law of standing and the interpretation of Article 32 were brought about by a 3 judge bench. In Mohini Jain v. State of Karnataka, (1992) 3 SCC 666, a two judge bench of the Supreme Court made substantial changes to the interpretation of the Article 21 by including the right to education within its ambit. A more recent example is Selvi v. State of Karnataka, (2010) 7 SCC 263 where are a 3 judge bench of the court considered the question of whether narco-analysis is violative of the right against self incrimination embodied in Article 20(3) of the Constitution.

I would submit that these judgements are passed without jurisdiction. Hence, they would effect, be a nullity, since the benches which decided them were not constituted in accordance with the mandates of law. This defect could only have been remedied if the judgement purports to follow a clear statement of a previous constitution bench in which the exact same substantial question of law was raised.    

The reason for this rule is specifically that the decision of the elected representatives of the people should not be lightly set aside by the different predilections or opinions of individual judges. Judicial review is meant to act as a check on the majoritarian tendencies that can often sway democracies. It was the understanding, rightly, of the framers that a larger bench would promote greater objectivity and clarity in the statement of the law declared. Today, the increasing pusillanimity of puisne judges ensures that really speaking it is the senior judge who writes the judgement entirely.

The higher courts must declare the law with clarity and authority in order to ensure that their orders get the respect they deserve from the people and the courts below. In the long run, this will minimise the necessity for an appeal or ‘taking a chance’. It will have the salutary effect in the long run of reducing cases that are filed in the hope that they may find a sympathetic judge. Neither justice nor the development of the law is meant to be a game of dice!

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