Tag: judiciary

Re-Viewing Review Powers of the Supreme Court [Guest Post]

Gautam BhatiaLeave a comment

[This is a guest post by Kunsh Jain.]

Article 137 allows the Supreme Court (‘SC’) to review its own judgements. This review power is subject to, in the absence of parliamentary legislation, Order XLVII of the SC Rules, 2013 (‘Rules’). The SC has highlighted a worrying trend of overruling rulings since several orders have been recalled or modified by review petitions. This post attempts to uncover the contours of invoking these review powers. This is done firstly, by critiquing how post the Kantaru review petition the review jurisprudence trend shifted from restrictive to expansive, and secondly, analysing 4 grounds, namely: the ‘eroding plausible-impossible distinction’, ‘bench shopping’, ‘commercial implact;, and ‘not following judgements’ as questionable expansion of review grounds.

A review is sought to exercise corrective powers post a final order by the SC. It does not amount to re-hearing a case but is to be used sparingly to not let it become an intra-appellate mechanism. Its function is to rectify a patent error in a final judgment, not to revisit matters conclusively decided. The dilution of this distinction erodes Article 141’s promise of finality. This finality is central to the rule of law and as a case travels up the vertical hierarchy of courts, the jurisdiction of the court gets narrower. Thus, “a review cannot be allowed to be an appeal in disguise”.

The SC had restricted review jurisdiction starting from Northern India Caterers (1979) to Kamlesh Verma v. Mayawati (2013) (‘Mayawati’) justified only when there exist substantial and compelling reasons to do so. However, these reason and their precise standards are unclear in recent jurisprudence. Review petitioners usually try to ‘force-fit’ reasons into the limited grounds considered for review. Rule 1 Order XLVII of the SC Rules, 2013 was supposed to restrict this otherwise unfettered power to admit review, but post the Kantaru Review in 2020, a pandora’s box of challenging final judgements via review petitions opened.

Jurisprudence expanding Jurisdiction

In Kantaru Rajeevaru v. Indian Young Lawyers’ Association (‘Kantaru’), there were several review petitions after the SC permitted women of menstruating age into the Sabarimala temple.  By a narrow 3-2 split, these reviews were maintained and referred the review to a larger bench. The dissent rightly attempted to restrict the review jurisdiction arguing that the grounds under Rule 1 Order XLVII of the rules were not met.

However, the 9 Judge Bench (‘9JB’) admitted the Sabarimala review petition with a flawed reasoning. It escaped the set standards with a disjunctive interpretation, implying an unfettered power to review as the general rule, and Rule I applied only to civil and criminal cases. Hence writs were made reviewable without having to meet an ‘error apparent’ standard. This author critiquing this had – accurately, as it turned out – predicted that in future, judges would not provide adequate reasoning for exercising review jurisdiction in any proceedings other than civil or criminal ones and this would turn a “reluctant resort” into “whims and fancies”.

This artificial distinction of writs from civil and criminal proceedings largely set the trend for the unfettered review petitions as we see them today. It was a recognised rule that a review standard followed the CPC’s limited grounds of i) discovery of new evidence, ii) error apparent on the face of record and iii) any such reason which of an analogous nature, and in a criminal proceeding, only upon an error apparent. By distinguishing writs, these standards no longer bind the Court, leading to multiple unsubstantiated review petitions after every lost SC case.

Judgements do not even always follow the Kantaru idea of a writ versus a civil-criminal proceeding binary. For example, the recent review in CREDAI v. Vanashakti (‘Vanashakti’) had a civil appeal clubbed with writ petitions, or in Mayawati where civil irregularities led to a criminal inquiry against which a writ was filed. The governing rules of review for such ‘mixed’ proceedings are lost. Even beyond the expansive powers for writs, the rationale for exercising review powers in civil and criminal proceedings is uncertain. The scope of an ‘error apparent on the face of record’ or ‘any other reason’ being analogous being noscitur a sociis to the first two conditions was sought to be clarified in Mayawati. However recent deviation makes the scope of Rule 1 unclear.

A two-judge bench in Shikhar Chemicals Versus State of UP recently recalled its order directing  stripping the criminal roster of an Allahabad HC judge. Despite it being a criminal SLP, it was reviewed by an “undated letter by the CJI”. On procedure, per Govt of NCT Delhi v. Rathi Steels, the person applying for review (CJI herein) must demonstrate that he is a person aggrieved (unclear how so).  On substance, the only ground for reviewing criminal proceedings is of an error apparent. What constituted such an error in the now-deleted Paras 25 and 26 that issued roster directions to the Allahabad HC, is something only the CJI’s letter can answer.

Making Impossible the Plausible

First, review cannot be sought where the court has taken a view, however erroneous, if that view is one of two possible views and there lies no patent error. In the case of Kalyani Transco v. Bhushan Power (‘Bhushan’), the order-in-review undermined commercial confidence by unravelling a resolution plan already invested in. This was due to lack of adherence to procedural requirements and not meeting the timelines that were held critical to the IBC framework. However the extraordinary procedure for seeking review is critiqued here.

Oddly, using a new SLP against an enforcement order rather than a review, the order was stayed. The CJI’s order is titled ‘civil appellate jurisdiction’ and not the inherent/review jurisdiction. Secondly, the order was recalled and reversed, because i) judgements were not correctly followed ii) it was based on incorrect factual aspects and arguments not advanced were considered. These grounds may be used in appeal, however a narrower review standard isn’t sufficiently met by alleging per incuriam. The earlier interpretation of IBC’s procedural requirements was a plausible view, however erroneous that may be, and not an impossible view and hence, no ground for review.

This plausible-impossible distinction was blurred even in Vanashakti where the judgement in review was about the validity of post-facto environmental clearances. The earlier order sought to end this practice of ‘backdoor’ regularisation, but the review bench held by 2-1 majority that this was reviewable, and further reversible due to contravening earlier judgements. However, Justice Bhuyan’s dissent brings to light the problems that review jurisdiction faces currently.

The existence of a well-reasoned view, seeking to bring India in line with environmental jurisprudence and global standards, is overturned for ‘not following judgements’. These earlier judgements had used their exceptional Art. 142 powers to regularise and this ‘relief’ must not bind the court as ‘ratio’. Further, a concern repeated with both Justice Oka in Vanashakti and Justice Trivedi in Bhushan is that once the authoring judge retires, a review is sought and a re-attempt at a favourable decision is made. This furthers the courts polyvocality, distinguishing a recently retired judge from others of the same court. This concern was also raised by Justice Nagarathna warning that judgements were anchored in ink, not sand and cannot be tossed out merely because faces have changed.

Who Decides Who is to Decide

Rule 3, Order XLVII of the Rules states that “An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed”. Changing the composition of benches by admitting review post-retirement, or diluting the original bench strength by adding additional judges goes against the intent of the rules where if the error was so apparent, the same judges could re-look and correct their error. This makes review, a ground for bench-hunting to obtain a favourable decision. Often in reviews with changed bench composition, the judge from the earlier bench maintains the original view taken, however the newer judge(s) give a different view.

In Vanashakti, the 2JB’s order by Oka and Bhuyan, JJ was reviewed post Justice Oka’s retirement by a 3JB composed of CJI Gavai, Chandran and  Bhuyan, JJ. This article highlights the reversal via a miscellaneous petition being before a 3JB being a problematic substitute to review. This 3JB gave a split verdict of 2-1, with Justice Bhuyan maintaining the original view and calling the review a step in retrogression.

Elsewhere, in a property dispute between ISCKON Bangalore and ISCKON Mumbai, Oka and Masih, JJ had ruled in favour of the Bangalore chapter. Upon a review petition, Justice Maheshwari replaced retd. Justice Oka’s and admitted the review condoning the delay, but Justice Masih held that there existed no error apparent and hence grounds for review were not met. This split decision led to another completely new three judge bench issuing notice and leaving the question on review jurisdiction for open for the past three months remarking “What Lord Krishna might be thinking of all this”.

This also confers a special power in the hands of the CJI as the ‘master of the roster’. If there exists a split-decision, as seen in the ISCKON dispute and even in the Akola riots case, the review is referred to the CJI for further directions. With the power of constituting benches, there exists a re-view of the original order that can be created with a change in the bench. Even in civil review, Rule 5 Order XLVII of the CPC precludes other judges from hearing review highlighting the intent of self-correction by the original judge(s). It creates an exception for retiring/transferring judges, however, even in rare cases reviewed by the same bench, the grounds for Review are not followed.

Rule 2 mandates filing review petitions within 30 days of a judgement/order placing primary intent of swift finality after long appeals, granting condonation of delays in filing review petitions is common practice. In NHAI v. Tarsem Singh, the same bench admitted a review petition 9 months later, on the grounds highlighted that had far-reaching implications of Rs. 32,000 crores, and not Rs. 100 crores as mentioned in the earlier judgement. While this could be fit under the ground of “new material/evidence” it raises another important question: Can commercial impact be a ground for review under Rule 1, Order XLVII of The Rules?

A Reason not Reasonable enough

Every judgement will have certain commercial and political implications to the disadvantage of key stakeholders. The presumption is that the judges are cognizant of the same while delivering the judgement. Bringing these up in a review petition relies on post-judgement public sentiment and politico-economic considerations to reverse the effect of an final judgement, thereby undermining the judicial process followed by it. With no set standard of seeking review by the impact created, there exists confusing jurisprudence on whether this can be fit into the ‘any other reason” ground of seeking review.

In Vanashakti, the arguments accepted in favour of review were of public constructions already finished and their demolishing resulting in a loss of public money. Examples of an AIIMS hospital and Greenfield airport built on taxpayers money being demolished as an the effect of the 2JB judgement constituted a ground for review. However, the implications also extended to a larger number of private players and projects subsequently benefitting from the revised judgement. Even in Bhushan, the judgement in review was criticised for undermining commercial certainty and investor confidence and its economic impact certainly played some role in admitting that petition.

But the long-term consequences that these judgements seek to protect are equally crucial too. In Vanashakti, the 2JB had sought to alleviate the pollution issue by tuning India’s environmental jurisprudence to global standards. They had relied on impact assessment studies considering public stakeholders in the environmental discourse and concluded noting the Delhi smog as a visible impact. This acknowledged impact should not be then backtracked upon using a review petition filed by “builders and developers who had shown scant regard for the law”. What then, is the distinction between impacts that make a case for review and impacts that don’t?

In State of West Bengal v. Baishakhi Bhattacharya (‘WB teachers’), the court rejected a review petition to its judgement invalidating 24,000 appointments by the WB School Service Commission from 9 years back calling it a “re-hearing on merits” and hence not permissible. It “was fully conscious of the heartburn and anguish caused by the invalidation of the untainted appointments” but the matter did not deserve a review petition as all aspects were considered.

Hence, the result is a skewed jurisprudence in which commercial stakes routinely justify review, but the far-reaching effects on ordinary citizens do not. This reveals how “impact” has become an incoherent and inconsistently applied ground under the “any other reason” of Rule 1, Order XLVII.

Error Apparent or Apparent Expansion

Another equally popular ground of seeking and admitting review is by “error apparent” of not following the law as laid down in previous judgements. To answer whether ‘not following earlier judgements’ constitutes error apparent, the review jurisprudence pre-Kantaru must be looked at. In Mayawati, the SC clearly lists when a review will not be maintainable. It held that older arguments cannot come up in a review petition as to re-hear a case, and an error that needs to be fished out and searched is not an error apparent. Thus, if a judgement was engaged with and/or distinguished from, then per Mayawati a review petition must not exercise appellate-like powers to reverse a final judgement.

However, the review judgement in Vanashakti had an interesting section on judicial discipline and propriety. Citing a plethora of judgements on how stare decisis is integral and following precedent is key to judicial discipline, the 2JB’s judgement was overturned as it had not followed certain paragraphs of judgements “that could have persuaded it to take a different view”. The effect of Vanashakti is that if a precedent was followed largely but differed in an interpretation of certain paragraphs, the judgement is per incuriam and hence, constitutes a sufficient ground for review. The reason cited is that “predictability and certainty is important…. And discipline is a sine-quo-non for effective functioning of the judicial system”.

It is the SC’s liberty to apply the general rules to specific facts of each particular case to obtain a just outcome for the parties and set precedent for the country. The order-in-review in Vanashakti had engaged with said judgements and held that it couldn’t be bound by the special Art. 142 relief granted and focused on the legal principle that post-facto ECs were alien to environmental jurisprudence.  This is not judicial indiscipline or distinguishing by “minor difference in facts”, but following the SC’s prerogative of setting progressive law. By refusing to rely on environmentally regressive reliefs granted in earlier judgements, it had sought to not  shy away from a principle’s application, as this post argues it previously has.

Allowing “not following judgements” to constitute a review ground takes away from transformative judicial interpretation. Rupa Ashok Hurra v. Ashok Hurra, which engaged with these questions of discipline and certainty sufficiently, had highlighted the narrow ladder moving from appeals-review-curative jurisdiction. Mayawati had laid the ground for when a review is not maintainable. However, review petitons and admissions post Kantaru have negated this restrictive sense of review powers and made it into what Krishna Iyer, J had warned be, a shot at the moon.

Conclusion: Restricting Review Powers

Review powers of the SC remain in an unchartered territory because of its unfettered power subject only to the parliament or the rules made by the SC itself. The parliament will not interfere with judicial procedure for fear of being struck down as infringing on the separation of powers even if constitutionally empowered under article 137. Further, why would the UOI who themselves get another chance at “appealing” an unfavourable order, and recently have through another gateway using a presidential reference, choose to limit themselves? Political ramifications and public sentiment are now a ground for review as seen in In re: Stray Dogs and In re: Assent to Bills and the largest litigant does not want to limit the same.

The Rules after Kantaru’s distinction are also interpreted differently to decide a review on its current impact basis rather than a limited set standard. Firstly, the courts can always resort to their inherent powers and Rule 6, Order LV and hold that the Rules do not apply while considering review petitions. Notwithstanding discretionary powers for justice, there must be a clear standard for review and it must be guided by a restrictive reading of Order XLVII of the Rules. This is critical to maintaining the limited jurisdiction as a case travels up the hierarchy and the finality it offers.

Secondly, admissions like the 9JB in Kantaru and the 2-1 majority in Vanashakti dangerously expand the scope of review. These benches themselves set the scope of powers they can exercise and guide future smaller benches. In these scenarios, the dissents, by Justice Nariman in admitting the review petition prior to the 9JB reference, and by Justice Bhuyan in Vanashakti, guide rightly towards a restrictive review jurisdiction amidst increasing pendency, uncertainty and a litigant hoping for finality.

Review powers then, are an intricate balancing act and the power of preventing them from becoming an intra-appellate stage rests with either the parliamentary law or the SC rules. In the absence of a conclusive set standard, it is the judiciary’s prerogative, split into benches but speaking as one, to shape jurisprudence in a way that views review as a careful and controlled power exercised only upon a serious miscarriage of justice.

Questioning a “Substantial Question of Constitutional Importance”: Article 145(3) and its Puzzling Interpretation [Guest Post]

Gautam BhatiaLeave a comment

[This is a guest post by Anshul Dalmia.]

Last week, a five-judge bench of the Supreme Court (‘Court’) in Rejanish K.V. v. K. Deepa, delivered its judgment on the interpretation of Article 233(2) of the Indian Constitution. The Court held that a judicial officer, who has a combined experience of seven years as a judicial officer and an advocate, is eligible to apply for direct appointment (through the bar quota) as a district judge. This decision allowed for the direct appointment of those lawyers who became judicial officers, during their application for a district judge. While the substantive interpretation and conclusion invite praise, I aim to explore the jurisdictional issues spanning the case, and the channels through which it came before the constitution bench.

In the first part of the blog, I aim to examine the judicial background which lead the case being re-opened by the Court. Through this, I showcase the questionable origins of the case and interpretations of Article 145(3) of the Constitution. In the second part, I seek to evaluate the consequences of such interpretation and the highlight the addition of an arrow in the Court’s jurisdictional quiver.

Who let the Cat Out of the Bag? The Re-Opening of The Case

The complaints around the eligibility criteria for a direct district judge appointment began in 2018. A two-judge bench in Dheeraj Mor v. High Court at Delhi, held that due to several conflicting interpretations and since the matter could be resolved by conclusively interpreting Article 233(2), the case was referred to an appropriate bench which would be constituted by the Chief Justice. In that very year, another bench G. Sabitha v. High Court too faced this dilemma and realized the incongruence of judicial interpretation. The two-judge bench noticed that a similar case i.e., the Dheeraj Mor case was pending consideration and instructed the Registry to accordingly tag the cases. The Chief Justice ultimately set-up a three-judge bench, which disposed the matter. The three-judge bench headed by Justice Mishra unanimously interpreted the eligibility criteria for candidates who had applied to be district judges through the bar quota. This approach while seemingly straightforward, opened a can of interpretative worms, five years later.

Several review petitions were filed against the three-judge bench judgment of Dheeraj Mor which were taken up in Rejanish K.V. v. K. Deepa. In a case, where a review is filed, the jurisdiction of the Court is extremely limited. The Court can entertain the review only if the bench feels if there is ‘an error apparent on the face of the record’. This has been interpreted to mean egregious faults with the interpretation of laws and the Constitution. Here, however, instead of restricting itself to this limited means of review jurisdiction, the Court retraced its footsteps and highlighted a fault with the initial setting-up of the bench in Dheeraj Mor.

The Court observed that when the two-judge bench in Dheeraj Mor had raised concerns regarding the skewed interpretation of Article 233(2) and referred it to an appropriate bench—the bench had to have five judges and not three—due to the employment of Article 145(3). Article 145(3) states that the minimum number of judges which shall decide a ‘substantial question of law’ as to a constitutional interpretation shall be five. Accordingly, the Court instructed the setting-up of a larger bench of five judges to remedy this constitutional abnegation. Here, that the Court freed itself from the limited jurisdiction it had under the review powers—it could now re-open the case and substantively hear it de novo.

I argue that such an interpretation not only incorrectly identifies the problem with the composition of the benches, but also muddles up the jurisprudence under Article 145(3) allowing the Court to substantively re-open cases. First, the two-judge bench in Dheeraj Mor judgment did not indicate the number of judges which had to be present on the bench. The bench merely indicated the Chief Justice to set-up an appropriate bench to hear these case. Second, the bench did not expressly indicate the referral to a larger bench due to the operation of Article 145(3). Third, this leads to disturbing a question of interpretation which has been finally and effectively decided by this Court i.e., the three-judge bench in Dheeraj Mor. The Court in State of J&K v. Thakur  Singh read with Bhagwan Swarup Lal v. State of Maharashtra has previously held that a substantial question of law under Article 145(3) could not arise if the law on that subject has been conclusively decided. I submit that in the three-judge bench in Dheeraj Mor unanimously determined the interpretation of Article 233(2). This prevents the Court from re-opening the case, wrongfully tagging it as a ‘substantial question of law’ under Article 145(3).

Who will Bell the Cat? Examining The Interpretational Consequences

It can be counter-argued that smaller benches need not explicitly mention Article 145(3) and since it involves a substantial question of law, the bench which hears it next has to be of five judges through an automatic operation of the constitutional provision. However, I argue that this would skew the jurisprudence further, cause access-to-justice concerns, and create a double-edged sword.

First, precedent dictates that the reference order must be checked to assess if the reference is made to a constitution bench or just a larger bench. Here, a larger bench would mean a greater number of judges than the bench which referred it. In the case of M Siddiq v. Mahant Suresh Das, it was held that merely if a case states that an appeal involves a substantial question of law, it does not indicate that it must be heard by a five-judge constitution bench. It could be read also as an order to place the case before a larger bench. The analysis here indicates that the Dheeraj Mor bench had instructed placing it before a larger appropriate bench, which was accordingly done. The absence of an indication to delegation to a constitution bench ought not to have been read-in by the Court here. Moreover, the ratio in M Siddiq clearly highlights the non-violation of Article 145(3).

Second, if every case dealing with a substantial question of law had to go before five judges, the matter would not be heard expeditiously. Experience and history have shown that constitution benches are seldom constituted. These benches consume a lot of time of both the lawyers and the judges, and are thus kept in abeyance. Even if they are constituted, the decision to do so is selective and based on the discretion of the Chief Justice. Chief Justices under their administrative power have been entrusted the role to make a decision—not just based on the law but also logistical convenience. Thus, every case dealing with a questionable ‘substantial question of importance’ must go before the Chief, who has to assess if the order indicates the operation of Article 145(3). In the Dheeraj Mor example, the Chief was within his administrative discretion in place it before a larger three-judge bench as compared to a constitution bench—with the former usually being chosen for quick disposal.

Third, this would mean the dangerous possibility of re-opening several cases and ruffling settled interpretations. A quick perusal of judicial archives indicates several cases which have been subjected through a similar path – smaller bench instructs delegation to an appropriate bench, the Chief makes an administrative decision to place it before a three-judge bench, the three-judge bench hears the case, delivers the judgment, and conclusively determines the interpretation. If the interpretation in the current case is adopted, it could leave several cases being re-opened to scrutiny and for investigation—unsettling years of precedents and common law interpretation. Thus, I argue that the Court in Court in Rejanish K.V. v. K. Deepa has incorrectly interpreted the operation of Article 145(3).

Through this blog, I have sought to draw attention towards the re-opening and re-hearing of a case which should not have gone before a five-judge bench in the first place. While the Court states that irrespective of the past error, it observes that the case now involves a substantial question of law and invokes Article 145(3)—the manner, channel, and mechanism through which it was done raises concerns. The consequences of which seem to be dire. On another note, it becomes imperative to ponder, why does a Chief Justice not list several pending constitution bench cases but instead only lists recently referred cases? Another constitution bench which shall hear matters soon indicates a similar yet disturbing trend.

A Very Strange Presidential Reference; or, the Supreme Court Goes Golfing

Gautam Bhatia4 Comments

Apart from Donald Trump, elite lawyers and judges also have a special fondness for the game of golf. In golf, there is something called a “mulligan“: that is, a “second chance shot when a golfer has hit a poor tee shot that they would rather forget!” Needless to say, mulligans cannot be used in competitive golf, but only in “friendly” games.

How is the mulligan relevant to this blog? It is because the Supreme Court, in its recent hearing of the Presidential Reference in Re: Assent, Withholding, or Reservation of Bills by the Governor and President of India, looks set to establish a previously unheard-of concept: a constitutional mulligan, which is granted solely to the central executive.

By way of brief context, as is well-known, in May 2025, in State of Tamil Nadu vs Governor of Tamil Nadu, a two-judge bench of the Supreme Court interpreted Articles 200 and 201 of the Constitution, and – among other things – set timelines on how long – under ordinary circumstances – Governors and Presidents could “sit” on legislative assembly bills. Very soon after this, the President of India invoked Article 143 of the Constitution to refer fourteen questions to the Supreme Court of India, under its advisory jurisdiction.

Now, it so happened, that eleven out of these fourteen questions were the subject matter of State of Tamil Nadu vs Governor of Tamil Nadu. Consequently, they had already been answered by a two-judge bench of the Supreme Court. Curiously, however, the entire Presidential Reference makes no mention of the judgment (which had been delivered a week before): it is as if the judgment did not exist, had never been delivered, and this was the first time that the Court was being asked to deliberate on these issues.

It should, therefore, quite obviously follow that if the President has put to the Court “questions” about what the position of law is, and the position of law has been declared by a previous judgment of the Court, then the only possible answer that the Court can now give is that these questions already stand answered, and refer the President to the precedent. If the Court were feeling generous, it could even give some additional advice, to prevent such superfluities in the future: that if the President – acting on the aid and advice of the Union – disagreed with the outcome of a judgment, then the correct course of action would be to file a review petition, or – in a future case – ask for a reference to a larger bench.

That is not, however, how the hearings in the Presidential Reference – which was argued extensively in August and September – proceeded. The bench brushed aside initial objections on the maintainability and propriety of hearing the reference, and then proceeded to conduct what can only be called a de novo merits re-hearing (in its advisory jurisdiction) of the issues that had been decided a few months ago (by the same Court, exercising its regular, contentious jurisdiction). How did the bench justify this? During the course of oral arguments, two things stood out for how often they were repeated. First, the bench – headed by CJI Gavai – kept rhetorically asking if a “five-judge bench is bound by a two-judge bench” – and indeed, seemed to take affront at the possibility that the answer might be “in this case, yes.” And secondly, the bench kept repeating that it would “not look at the State of Tamil Nadu decision” while rendering its opinion.

Let us briefly look at both questions. The first – one almost hesitates to say – proceeds on a misunderstanding of constitutional law 101. Let us take an extreme example: five judges – or seven, or nine, or twenty-nine – go golfing together, and while they are taking their mulligans and trying to forget their bad tee shots, they start discussing the State of Tamil Nadu judgment. In doing so, are these five, or seven, or twenty-nine judges not bound by the judgment? Of course they are bound, because “5 judges >>> 2 judges” is not how it works. Five judges are not bound by two judges if and when those five judges are in a bench that is exercising the same jurisdiction as the previous two-judge bench was. For example, if subsequently another two-judge bench, faced with a question about the interpretation of Article 200, referred the case to the Chief Justice, and a larger bench was constituted, that bench would not be bound by the two-judge bench judgment. If, however, five judges are asked, in their advisory jurisdiction, for their opinion on what the law is, then they are bound to tell the President that the law is what has been settled by the previous judgments of the Court.

The second proposition is even more astonishing. Because, in the example of the reference discussed above, the five-judge bench, even though not bound by the two-judge bench, would be required to take its judgment into account, engage with it, and only depart from it if it felt that there were very strong reasons to do so (not simply if it felt there were two views, and it was of a different view). But here, not only did the bench declare itself not bound by precedent, but also liberated itself from even looking at the precedent. In essence, as noted above, it is as if the State of Tamil Nadu judgment never existed.

Why is this seemingly technical quibble of vital importance? It is important because, through these two propositions, if in the future, the Union of India loses a case, it can make a Presidential reference that asks the same questions that were decided in the case, make no mention of the case itself, and get an entirely fresh, second bite at the cherry – a “constitutional mulligan.” And most crucially, as only the Union of India can make a Presidential Reference, what the bench has effectively done is to say that every litigant before the Supreme Court of India gets one shot at a fresh hearing, except for the Union, which gets two. In effect, the bench has carved out a special privilege within the Constitution only for the central executive.

Indeed, while taking place within the formal “advisory” jurisdiction of the Court, there was nothing about these hearings that were even remotely advisory: these hearings were conducted like a full-fledged adversarial dispute between two contending parties, complete with even a rejoinder by the Union of India. At this point, we may as well give up the mask of the “advisory” hearing, and agree that what happened was a full-fledged re-hearing of a decided case, but under a procedure previously unknown, and one that can, in the future, only be initiated by the central executive.

A final, somewhat ironic point: the State of Tamil Nadu judgment was rendered in a specific factual contexts (as judgments should be), and the Court’s interpretation of Articles 200 and 201 was informed by the constitutional practice placed before it. However, during the Presidential Reference hearings, the bench refused to consider constitutional practice, and stressed that it would render its opinion on the abstract questions of law before it. Why do I say this is ironic? I say so because in the history of the Supreme Court, its most landmark judgments have been re-interpretations of the Constitution based on its working over the years. In Maneka Gandhi, the Court rewrote Article 21 based on experience. But even more ironically, the collegium system – under which all the present judges of the Court have been appointed – owes its existence to a sweeping reinterpretation of the Constitution based on the experience of executive interference with the judiciary. To this day, in fact, the judgment that established the collegium – which has no basis in the constitutional text – is defended on the ground that it was necessitated by experience. Suddenly, however, the life of the law no longer seems to be about experience. One wonder why.

Many years ago, during my clerkship with a judge, I too was taken to play some golf. I was terrible at it, and gleefully made use of my mulligans. I remember wistfully wishing that we were all given mulligans not just in golf, but in life. It would make everything so easy. In its Presidential Reference, the Supreme Court has granted the executive a lifetime of free mulligans. If only we all had it so easy.

Guest Post: The Kenyan Supreme Court and the “Grand Ban”

Gautam Bhatia2 Comments

[This is a guest post by Marion Joy.]

Background

Ahmednasir Abdullahi, Senior Counsel (SC) [“Ahmednasir”], popularly known as ‘Grand Mulla’, is a Kenyan lawyer who is not new to controversy. Ahmednasir has been sparking national conversations since the 1990s when he became the acting dean of the University of Nairobi Law School when he was just 28 years old. His controversies would continue in the 2010s when he served in the Judicial Service Commission and later argued in high-profile cases such as presidential election petitions.

The controversies go on in the present day, as he keeps establishing himself as the judiciary’s top critic. His consistent media presence has earned him the title ‘public figure’ in Kenya. On the ‘X’ social media platform alone, Ahmednasir has over 2.4 Million followers and is among the top 20 most followed X accounts in Kenya. It is mainly on this platform that he publicises his opinions about the Judiciary.   

For instance, on 15 February 2019, Ahmednasir announced that a judge of the Supreme Court of Kenya had charged 50 million Kenyan Shillings in at least 5 election petitions. He added that the Chief Justice and the Judicial Service Commission were doing nothing about it. Later, on 7 July 2023, Ahmednasir advised that the best job in Kenya was being a judge because the salary is good and if you are corrupt, you could make between Kshs 50 million (USD 393,196) to Kshs 500  (USD 3,931,960) annually. He added that such corrupt judges would not be removed from office because Chief Justice Martha Koome would defend corruption under the umbrella of judicial decisional independence.

In both instances, Ahmednasir did not accompany his claims with evidence, nor did he file a formal complaint against any judge.  These are two out of the numerous occasions when Ahmednassir accused the judiciary of being corrupt but made no formal complaint against any judge.

In January 2024, the Supreme Court responded to Ahmednasir’s attacks by banning him from appearing before the court. The part below shall discuss the ban.  

The Grand Ban

The Court had often issued warnings to Ahmednasir, urging him to stop accusing the bench of being corrupt without attaching any evidence, or using appropriate channels (such as the Judicial Services Commission), and making a formal complaint against any specific judge. Despite this, Ahmednasir did not stop making his allegations in the media. 

As a response to his continued attacks, in January 2024 the Supreme Court of Kenya decided to permanently ban Ahmednasir from appearing before the court. The Court’s directive attached a compilation of the allegations he had been making for at least 8 years. This decision was met with many debates on various topics including judicial independence, the sensitivity of courts, freedom of speech, administrative law and the balance between all these.

The ban is also a subject of litigation, as the Law Society of Kenya filed a constitutional petition at the High Court of Kenya, challenging the ban. In June 2024, the High Court ruled that it has jurisdiction to determine the Constitutionality of the ban. The Court stated that such jurisdiction is granted under Articles 22, 23 (1), and 165(3) of The Constitution of Kenya, which gives the Court power to determine if a person’s right or fundamental freedom has been denied, violated, infringed, or threatened. At the time of writing this piece, the case was set to be determined on merit (see a discussion of the case on this blog by Youngreen Mudeyi).

The following parts will now analyse the ban. I will make a case that the Court violated the law in its arguably justified attempt to defend the image and independence of the judiciary.      

Criticizing the ban: Right but Wrong

It is pertinent, for comparative purposes, to first highlight instances when Judiciaries in other jurisdictions took similar actions against their critics. After that, I will report what other legal scholars and judges have said regarding such actions. I will present my case thereafter.     

First off is South Africa, where a public officer was once convicted and imprisoned for the offence of ‘scandalising the court’. This offence was later found to be unconstitutional. In the USA, lawyers have been disbarred for making unsubstantiated claims or expressing negative opinions about the judiciary or its members. In the United Kingdom, it has been written that there was a convention against public criticism of judges.

Legal Scholars and former judges have also given their thoughts on the balance between judicial independence and the freedom of speech. For example, Chief Justice (emeritus) Willy Mutunga has previously written that judges should not be overly sensitive to criticism. Besides, South Africa’s Justice Albie Sachs has argued that: “…It is particularly important that, as the ultimate guardian of free speech, the judiciary show the greatest tolerance to criticism of its own functioning.” Specifically with regard to this incident, Kenya’s Prof Makau Mutua has written that the decision to ban Ahmednasir is a folly and that:  “…It’s patently unconstitutional for the Supreme Court of Kenya to ban Senior Counsel Ahmednasir or his associates from appearing before it.”

On the other side, in disagreement, Lawyer Paul Mwangi has written that he understood the Supreme Court to say that “…since the senior counsel thinks they are corrupt, they can’t trust that they can be impartial in a case he is representing and that in all fairness to his clients, they must recuse themselves from hearing the case so long as he is prosecuting or defending…”

A worrisome feature of the Court’s directive is that it did not observe the tenets of Fair Administrative Action provided under Article 47 of the Constitution and explained in Section 4 of the Fair Administrative Actions Act, and did not observe the rules of natural justice. The principles of natural justice require two things; first, that a person cannot be condemned unheard. This means that before a decision is made against a person, they must be invited to respond to the allegations and defend themselves. Second, no person shall be a judge in their own case. This means that in a dispute, the accuser cannot also be the judge.

Entities have to adhere to these principles at all times. Failure to do so would render their decisions nugatory. This was so emphasised in Republic v National Land Commission & 2 others Ex Parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West) [2018] eKLR.

In the present case, the Court failed to adhere to the said tenets of natural justice in two ways. First off, Ahmednasir was not at any point invited to defend himself before the decision against him was made. Secondly, the Supreme Court was the complainant, the prosecutor, and the judge in the matter. This fails to meet the standard for natural justice and a fair hearing provided in Articles 50 and 47 of the Constitution and explained by the very Supreme Court in Alnashir Popat & 7 Others v Capital Markets Authority (2020) eKLR. In the case, the court noted that “This principle is obviously blurred when one presides in the adjudication of one’s cause or in a process one has an interest in…interest here includes a situation where one desires or is keen on obtaining a given result.”   

Consequently, in the spirit of adhering to the principle of natural justice, the Court should have invited Ahmednasir to a session and given him a chance to respond. In my view, the Court should have asked Ahmednasir whether he still believed his clients would get justice in the Court as constituted since he had publicly denounced the judges as corrupt. The Court should have asked him why, if he had evidence of corruption, he had not petitioned for their removal under Article 168 of the Constitution. In this kind of hearing Ahmednasir may have apologized or undertaken to file such a petition. This would have been the correct process under law.  

Additionally, the Supreme Court may have acted ultra vires, in permanently banning Ahmednasir when Section 28 of the Supreme Court Act only allows for such a denial of audience for a period not exceeding 18 months. The Court did not anchor their directive on any Article of the Constitution, statute, or decided case. The court only cited a past decision where they had warned him against his continued attacks.

Supreme Court Judges are public officers, they are subject to the law and the Constitution. They are not exempted from observing the Constitution at any time. Under Article 2, the Constitution binds all persons. The right to fair administrative action and fair hearing are to be observed by judges. More importantly, there is a concern about floodgates: if there are no rules governing the banning of lawyers from appearing in court, then the powers to ban lawyers can be subject to abuse, if and when courts become overly sensitive to criticism. 

While on the one hand, history warns us about regressing to a period where the Bar was under attack, and was unable to perform its functions of holding the bench to account without fear or favour, it is also true that when public figures, with a substantial audience, level allegations of corruption without supporting evidence, there is a visible loss of confidence in the judiciary amongst the public at large. Anecdotal evidence – including my own – bears this out. The only way to strike the balance is by rigorously following due process, as outlined above.

Conclusion

It is often said that sometimes the end justifies the means; but this does not apply to the Court, and the present case is certainly not one of those times. The Supreme Court’s decision to permanently ban Lawyer Ahmednasir from accessing the Court may have been well intended but was misguided.

It is arguable that in the delivery of justice, the public perception of the Judiciary matters. Thus, Lawyer Ahmednasir may not be justified in constantly attacking the Judiciary without providing proof of his egregious accusations. Curiously, Ahmednasir did not complain about the judiciary using formal channels, which do exist; he made his attacks in the media, where the public is. A reasonable person would wonder why someone who is determined to see reforms in the Judiciary would not make any formal complaint against any judge, in a country where judges get removed from office.

Be it as it may, in banning Ahmednasir, the Supreme Court may have acted ultra vires, and even worse, opened floodgates for haphazard judicial bans on lawyers, in future. With respect, the Court may consider the words of Justice Sachs and Lord Dyson, who posited that the judiciary should defend its image as a matter of public interest, but that defence should be done within the parameters of the law.  

An Injudicious Judicial Opinion

Gautam Bhatia10 Comments

In a constitutional democracy, there is a certain baseline expectation that citizens have from their courts. This expectation is that a judge hearing a challenge to the actions of a State organ shall confine themselves to analysing the substance of the claim, and provide transparent and public reasoning to back up their decision, or any other observations that they have to make about the case.

Paragraph 5 of Justice Dipankar Datta’s concurring opinion in the Supreme Court’s 26th April judgment on the question of electronic voting machines [EVMs] and VVPAT verification (Association for Democratic Reforms vs Election Commission of India) proceeds as follows:

It is of immediate relevance to note that in recent years, a trend has been fast developing of certain vested interest groups endeavouring to undermine the achievements and accomplishments of the nation, earned through the hard work and dedication of its sincere workforce. There seems to be a concerted effort to discredit, diminish, and weaken the progress of this great nation on every possible frontier. Any such effort, or rather attempt, has to be nipped in the bud. No Constitutional court, far less this Court, would allow such attempt to succeed as long as it (the court) has a say in the matter. I have serious doubt as regards the bona fides of the petitioning association when it seeks a reversion to the old order.

There are two things to note about this paragraph.

First, the judge levels a range of allegations in the first two sentences, but provides no evidence or particulars. He does not identify who these “vested interest groups” are. He does not specify what “the achievements and accomplishments of the nation” are, which are being “undermined” by these unnamed “vested interest groups.” He does not clarify what the “concerted effort” is that is being made by (presumably) the same unnamed “vested interest groups.” He does not explain what “progress of this great nation” is being weakened, and how, and by whom.

There is a term for such language, and it is called a “dog-whistle.” We are all familiar with dog-whistles: especially dog-whistles that allege that a nation’s progress is being held back by unnamed fifth-columnists. We are familiar with dog-whistles that set these unnamed fifth-columnists against the “true and pure” citizenry, the honest labourers and the “sincere work-force.” We are also familiar with what such dog-whistles lead to. Throughout history, these dog-whistles have been the preserve of demagogues and soap-box orators, seeking to whip up public resentment against the chosen targets of their outrage.

The demagogue does not need to spell out whom he is criticising, what he is criticising, or to provide reasons for his criticism. In fact, were he to do so, his demagoguery would lose its force, because his appeal is not to his audience’s reasoning faculties, but to the worst of their prejudices. His success is measured on no metric other than how much passion he can whip up, and what destructive effects he can direct it towards.

But there is a problem when a court engages in judicial demagoguery. The entire purpose of a constitutional court is to resolve disputes through the exercise of public reason, which is open and honest about its priors, and transparent about its assumptions. When a court begins to engage in these nudge-nudge-wink-wink games before a national audience, it abandons its role and functions as a court.

This is not to say that judicial demagoguery has no precedent in history. Perhaps its most famous exponent was Andrey Vyshinsky, the Soviet prosecutor-judge who presided over Stalin’s show-trials, and publicly berated the accused for being fifth-columnists who were intent on undermining the historical progress being made by the great Soviet nation. Is this an example the Supreme Court thinks worthy of emulation? One hopes not.

The second issue in this paragraph is the judge’s gratuitous personal attack upon the petitioner, the Association for Democratic Reforms. I will not here write a screed defending the ADR: their two-and-a-half-decades’ worth of work is in the public domain, it speaks for itself, and they do not need anyone to speak on their behalf. Notice, however, how – much like the first part of the paragraph – the judge provides no evidence for doubting ADR’s bona fides; in fact, the only reason for that, that comes out of the judgment, seems to be the judge’s outrage at the suggestion of replacing EVMs with paper ballots. But it is the opposite of judicial temperament to let one’s distaste for an argument spill over into a distaste for the petitioner.

Moreover, there is something particularly problematic about a personal attack by a judge upon a petitioner that appears in a judicial opinion, especially when these allegations are not put to the petitioner, and the petitioner is given no chance of defending themselves. This is, of course, not the first time that this has happened in recent years; for other examples of what I have referred to as the Court’s “Idi Amin jurisprudence,” see here. If a judge is intent upon castigating petitioners for the temerity of bringing a case to Court, and the basic principles of fairness demand that personal allegations be put to them, and their response to those allegations be recorded in the judgment. Without doing that, such attacks on petitioners are essentially the judicial versions of “shoot-and-scoot.”

There is a deeper irony here. The law of contempt exists – and rightly so – to protect judges from personal accusations (of bias, or dishonesty, or deciding cases for extraneous reasons). This is why losing parties to a case, or those who disagree with the outcome of a case, are not supposed to attribute the outcome to judicial malice. If judicial criticism became a free-for-all, judging would become a much more difficult and forbidding enterprise than it already is. But the law of contempt – which demands a certain temperance from the critics of the court – is not a one-way street. If judges treat petitioners as fair game for personal attacks, then the only effect of this will be to fray the threads that hold together the existing bargain. One wishes, of course, that this never comes to pass.

The Supreme Court’s EVM-VVPAT judgment will have its critics and its supporters. That is not the point here. Regardless of the Court’s findings, it is respectfully submitted that paragraph 5 of the concurring opinion delivered by Justice Dipankar Datta is both gratuitous and unnecessary. A healthy constitutional culture depends on individuals being able to challenge State action without fear of reprisal. If the Supreme Court itself becomes an organ of reprisal, then soon we will have no constitutional culture, but – to invoke another memorable judicial turn of phrase – “the unanimity of the graveyard.”

Notes from a Foreign Field: The Abolition of the Master of the Roster in Pakistan [Guest Post]

Gautam BhatiaLeave a comment

[This is a guest post by Shashank Pandey.]

In a landmark judgement, the Supreme Court of Pakistan recently took a significant step towards judicial transparency and accountability by abolishing the controversial practice of the “Master of the Roster” by upholding the Supreme Court (Practice and Procedure) Act, 2023 (‘Act’). This move, which marks a departure from the traditional method of case allocation, has sparked debates about the efficacy of such reforms in fostering a fair and impartial judicial system. As India grapples with its own challenges in the realm of judicial administration, the question arises: Should India take note of Pakistan’s bold move and consider similar reforms? This essay explores the implications of the Pakistan Supreme Court’s decision and the potential lessons that India could draw from its neighbour’s efforts to reform its judicial practices.

Features of the Act

The Act has been enacted to regulate certain practices and procedures of the Supreme Court of Pakistan. The preamble emphasises the constitutional mandate, particularly under Article 191 of the Constitution of Pakistan, which allows the Supreme Court to establish rules governing its practice and procedure. Acknowledging the constitutional principles of the right to a fair trial, due process, and the right of appeal, the Act aligns with Article 10A and other relevant constitutional provisions.

The key provisions of the Act include, among others, the constitution of Benches under section 2, outlining that every cause, appeal, or matter before the Supreme Court shall be heard and disposed of by a Bench formed by a Committee comprising the Chief Justice of Pakistan and the two next most senior Judges. The Act specifies the procedure for the Committee’s functioning, including the constitution of Benches. Furthermore, regarding the exercise of original jurisdiction under Article 184(3) of the Constitution, the Act mandates that matters be placed before the Committee for examination under section 3. If the Committee deems it involves a question of public importance related to the enforcement of Fundamental Rights, it shall constitute a Bench of not less than three Judges for adjudication.

What did the Court say?

The judgment begins by highlighting the absence of any unconstitutional, illegal, or objectionable elements upon a plain reading of the Act’s provisions. The judgment then delves into an examination of the constitutional scheme regarding the judicature and its jurisdiction. Furthermore, it explores the petitioner’s argument asserting that the independence of the judiciary was under imminent threat, and the constitutional structure, particularly the Chief Justice’s role as the “Master of the Roster,” would become obsolete with the enactment of the Act.

The court emphasises that the Constitution establishes the Judicature and specifies the jurisdictions of the Supreme Court, including original, appellate, advisory, transfer, review, and contempt jurisdictions. It emphasises the responsibility of the Judiciary to decide cases in accordance with the Constitution and the law, ensuring due process and a fair trial. The judgement clarifies that the Chief Justice’s powers are not unilateral, and the term “Master of the Roster” is not explicitly mentioned in the Constitution, law, or rules. Also, the judgment criticises the use of the term “Master,” deeming it offensive in a constitutional democracy. It argues that the concentration of power in an individual can lead to disastrous consequences, causing irreparable damage to the Judiciary and eroding public trust. The discussion references Islamic principles, emphasising equality and the prohibition of servitude, which contradicts the notion of a “Master.”

The judgment rejects the argument that discarding the “Master of the Roster” concept would negate stare decisis, stating that decisions of the Supreme Court are binding, but not on the Supreme Court itself. It also challenges the idea that the Chief Justice has the authority to decide cases arbitrarily. The judgment further explains that the concept of legal conventions is not judicially enforceable in the United Kingdom itself, from where most of the legal conventions have been inculcated, and the judgment argues that the Constitution in Pakistan does not recognise conventions as having the force of law.

Persistent Issues with the Convention in India

First, the Master of the Roster system has long been criticised for lacking transparency, as the process of case allocation is often seen as arbitrary and not well-documented. A recent example can be the recall of the Ritu Chhabaria judgement. In the two-judge bench Supreme Court judgement of Ritu Chhabaria vs Union of India, which declared statutory bail as a fundamental right, the State, displeased with the court judgment, sought to have it recalled by invoking the Chief Justice’s administrative powers, bypassing regular procedures. The Chief Justice used administrative powers to form a three-judge bench to reconsider the judgment without following the usual judicial process. This action bypassed the need for a reasoned judgment by another bench opposing the original decision. Additionally, a subsequent condition stated that other courts cannot entertain similar bail applications until this three-judge bench reviews the case. This decision seems to overextend the Chief Justice’s powers, creating a hierarchical structure within the Supreme Court. It also opens an avenue for the State to bypass unfavourable judgements by invoking the Chief Justice’s powers.

Secondly, the concentration of power in the hands of the Chief Justice could undermine the principles of the Indian Constitution and natural justice. A glaring example of this situation is illustrated by the episode involving former Chief Justice Ranjan Gogoi. “Nemo judex in causa sua” is a Latin legal principle that translates to “No one should be a judge in his own cause.” This principle reflects the fundamental concept of natural justice and the right to a fair trial. It means that a person or entity should not preside over a case in which they have a personal interest, as it may compromise their impartiality and fairness. This principle is a cornerstone of judicial ethics and is designed to ensure the integrity of legal proceedings. Despite this, Chief Justice Gogoi, facing allegations of sexual harassment, opted for a special hearing, actively participating as a member of the bench, which seemingly contradicted the essence of the principle.

In another case of Campaign for Judicial Accountability and Reforms v Union of India, a two-judge Bench of the Supreme Court, comprising Justices A.K. Sikri and Ashok Bhushan, passed an order referring a matter to the Chief Justice for appropriate listing orders. The Chief Justice then constituted a Constitution Bench to address the issue. During the proceedings, arguments were presented citing the Chief Justice’s administrative powers, specifically his role as the “master of the roster.” Referring to legal precedents and the Constitution, the Bench asserted that the Chief Justice has the sole prerogative to constitute benches and allocate cases. The order emphasized that no two or three-judge Bench can self-allocate a matter or direct the composition of a Bench, and any such order would be ineffective and not binding on the Chief Justice. The order concluded that any order contrary to these principles should be treated as ineffective, and the present writ petition would be listed before the appropriate Bench as allocated by the Chief Justice after two weeks. However, the Chief Justice was himself allegedly implicated in the case, raising questions of partiality and violation of principles of natural justice.

Thirdly, the Master of the Roster system has the potential to create a perception of bias in the appointment of judges for specific cases. In the Indian context, this involves control or influence over the selection of judges or benches for specific cases, which implicates the fairness of the judicial process. Allegations of bias in judge selection have been a persistent issue, leading to conflicts and protests. Notably, in 2019, four sitting judges of the Supreme Court protested against then Chief Justice Dipak Misra, accusing him of biased case allocation.

The Reforms

The reform implemented by the Pakistani Legislature and subsequently upheld by the Supreme Court of Pakistan is a positive development. While acknowledging that there is no perfect solution to systemic issues, initiating change and making incremental improvements are crucial pursuits for every democracy. The introduction of a collegium-like system for case allocation, though not flawless, represents an advancement from the outdated practice of the Master of the Roster.

The legal convention of Master of the Roster is not a constitutionally enshrined principle in India and has been formalised through judgements of the Apex court, which has upheld this practice time and again. However, legal conventions aren’t binding and could be reversed by the initiative of the legislature or the Supreme Court itself, as was in the case of Pakistan. Furthermore, the objective of the Third Judges Case judgement, which was to make the Chief Justice one among equals and hence remove the hierarchy in the matters of appointment or transfer, should become applicable in the case of allocating cases as well. Moreover, the applicability of the same system to those cases within the original jurisdiction of the Supreme Court is reasonable as well, considering the original jurisdiction of the Supreme Court involves cases of large implications.

While some may raise concerns about the logistical and efficiency aspects of such a system, the potential benefits it offers in enhancing the independence of the judiciary by introducing checks and balances outweigh the drawbacks. Notably, a similar system is already in place in the Indian Supreme Court for the appointment and transfer of judges, making it feasible for the court to adopt a comparable approach to case allocation.

Conclusion

The recent decision by the Supreme Court of Pakistan to abolish the “Master of the Roster” practice and introduce a collegium-like system for case allocation has sparked discussions on potential judicial reforms in India. The move in Pakistan addresses concerns related to transparency, concentration of power, and potential bias in judge selection within the judiciary.

India faces persistent challenges in its judicial administration, with the Master of the Roster system criticised for lacking transparency and concentrating excessive power on the Chief Justice. Instances of case allocation have often raised concerns. The Pakistani reform, though not perfect, offers possible insights. The benefits of enhancing judicial independence and introducing checks and balances through a collegium-like system outweigh the potential drawbacks. India could, thus, consider evaluating and reforming its case allocation practices, building on existing systems for judge appointments and transfers.

The ED Director Judgment – II: The Supreme Court Against the Rule of Law

Gautam Bhatia7 Comments

In my previous analysis of the Supreme Court’s recent judgment involving the tenure extensions granted to the Director of the Enforcement Directorate, I had wondered – somewhat rhetorically – “does the Supreme Court have any respect for itself, and for its own orders?” The context for this was that the Supreme Court had found that the ED Director had been kept in his role, in flagrant breach of the Supreme Court’s own orders, for a period of one year and eight months; but far from visiting any consequences upon the executive, the SC allowed the Director to stay on in his role until the end of July, to facilitate “a smooth transition.”

But in light of fresh events, one must now not only wonder whether the SC has any respect for itself and its own orders, but whether it has respect for the rule of law. In the aftermath of the judgment, the executive filed an application asking for an extension for the ED Director until the end of October, in view of the fact that his input was needed for the global FATF review. Notice the breathtaking audacity here: far from being chastened by a Supreme Court holding that it had breached a direct order not once, but twice (in granting the ED Director two extensions), the executive asked the court to sanction a further extension of a continuing illegality.

One would think that, in a jurisdiction that is formally committed to the rule of law, and to the principle that government is not above the law, such an application would not only be dismissed, but that punitive costs would be imposed upon the executive for wasting judicial time (after all, the judiciary has been quite eager of late to impose costs on petitioners for wasting its time). One would be wrong. After a brief hearing, the Supreme Court sanctioned a further extension to the ED Directors’ tenure “in the public interest”, until the middle of September (half the time the executive had asked for – as if what was happening was a negotiation for a salary increment, and not a serious issue involving the rule of law).

In doing so, the Supreme Court has today sent a signal that in India, there is one entity – and one entity alone – that is entitled to take advantage of its own wrong, not once, not twice, but many times over; and that there is only one entity that can refuse to comply with a Supreme Court order, and not only get away with it, but benefit from it. That entity is the union government. One would be hard-pressed to imagine a more destructive or damaging undermining of the rule of law.

Two consequences follow. One is that today’s order will only further embolden the executive to treat the Constitution and the law as optional. Because not only are there no judicial sanctions for breach, breach is actively incentivised. In such a circumstance, who would not take advantage of the impunity that has been so generously offered? Wouldn’t you?

The second is a more long-term consequence, although as troubling. If the Supreme Court is unable – or unwilling – to enforce its own previous, direct orders (not once, not twice, but many times) in the face of executive recalcitrance, then what hope – if any – ought citizens to have in its ability or willingness to adjudicate cases involving serious and far-reaching constitutional breaches by the executive? Would not such cases and constitutional challenges be effectively turned into a formality, where the outcome is known, and everyone simply goes through the motions? We are aware of jurisdictions where that is the case; and unfortunately, orders such as today’s raise a disquieting sense of proximity. After all, as a senior counsel once told a court – in what seems an eternity ago – “as nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air.”

Idi Amin Jurisprudence

Gautam Bhatia5 Comments

The Ugandan President-Dictator Idi Amin once said, “there is freedom of speech, but I cannot guarantee freedom after speech.”

To put it in less colourful language, Idi Amin was issuing a general warning to the populace: yes, you formally have your constitutional rights, which we cannot formally repeal because it looks bad; but if you try to exercise your rights – as we say in a legal notice – “the costs and consequences will be yours.”

In recent times, the Indian judiciary has been evolving its own version of Idi Amin jurisprudence. Petitioners approach the Court seeking enforcement of fundamental rights against State action. The Court not only holds in favour of the State (this is not particularly surprising), but goes a few miles further, by turning on the petitioners, and trying to make an example out of them for having the temerity to challenge the State in legal proceedings. This was done in the Zakia Jafri case where Khanwilkar J.’s observation that those who’d brought the Article 32 petition to Court “need to be in the dock and proceeded with in accordance with law” was followed by the arrest and incarceration of Teesta Setalvad for two months, before she was given bail (discussed here). It was also done in Himanshu Kumar vs State of Chhatisgarh, where a petition seeking investigation into extra-judicial killings was met with a Rs 5 lakh cost upon the Petitioner (in a judgment authored by Pardiwala J), along with similar observations: indeed, the Court even helpfully suggested to the police what sections of the criminal law might be invoked against the petitioners (criminal conspiracy and section 211 of the IPC) (discussed here).

The latest example of this is yesterday’s judgment of the Karnataka High Court, concerning Twitter’s challenge to the government’s power to block twitter accounts. The challenge was as mainstream a legal and constitutional challenge as it gets: it was questioned whether the government’s blocking powers extended not just to specific tweets but to entire accounts, the absence of due process requirements before blocking, and so on. At the High Court, Krishna Dixit J dismissed Twitter’s case on the basis that hundreds of pages of documents had been filed (?), that “worthier causes of native litigants” suffered while the case was being heard for “days” (??), and that it was “speculative litigation” (???). The learned judge then went on to impose a Rs 50 lakhs cost. Keeping aside the incoherence of each of these three reasons for imposing costs, one can note that Rs 50 lakhs is a drop in the ocean for Twitter. It is a lot more than a drop for individuals who might be thinking of challenging arbitrary State action in court, especially when it comes to blocking accounts and stifling speech online.

What is striking about these cases is that they were not instances of private litigation between individuals, where costs are built in to the common law system. They were all cases of constitutional challenges to State action. Nor were they instances of frivolous litigation that were dismissed at the outset, and costs were imposed as some kind of punishment for wasting the court’s time: in each of these cases, notice was issued (which means, at the very least, a prima facie case founded on some legal or constitutional provision). Arguments were heard in full, and in each of these cases, the Courts had to end up writing 100-page long judgments in order to justify the State’s action. Thus, when one strips away the verbiage, what remains is my observation above: these heavy costs and judicial dog-whistles to law enforcement are nothing more than making examples of people who have chosen to challenge the State in the most lawful manner imaginable: by filing a petition before a constitutional court, and arguing it.

Idi Amin jurisprudence: “there is freedom to come to court, but we cannot guarantee freedom after you’ve come to court.”

In recent times, the Indian judiciary has made many significant contributions to global constitutionalism, such as the doctrine of sealed covers, Humpty Dumpty jurisprudence, and judicial evasion. No doubt, soon enough, Idi Amin jurisprudence will rank among these proud achievements.

Executive Power and the Judicial Service Commission as a Fourth Branch Institution: The Judgment of the Supreme Court of Kenya

Gautam BhatiaLeave a comment

Article 171 of the Constitution of Kenya establishes the Judicial Service Commission [“the JSC”]. The JSC is composed of the Chief Justice, a judge of the Supreme Court (elected by the judges of the Supreme Court), a judge of the Court of Appeal (elected by the Court of Appeal), a High Court judge and a magistrate (one woman and one man, elected by the association of judges and magistrates), the Attorney-General, two advocates (one woman and one man, elected by the members of the regulatory body of advocates), a person nominated by the Public Service Commission, and two members of the public (one woman and one man, nominated by the President and confirmed by the National Assembly). As we can see the JSC’s composition includes a range of stakeholders: the judiciary, the bar, the executive (through the A-G), and the legislature (the confirmatory body for the public members).

Judicial appointments and ancillary issues are further regulated by the Judicial Service Act. Section 15(2) of the JSC Act states that where one of the nominating bodies under Article 171 has chosen its nominee, it shall submit the name to the President, and the President, within three days of the receipt of the name, shall appoint the nominee as a member of the JSC. Controversy arose in 2018, when a judge of the Court of Appeal was elected by his peers to be the CoA’s representative in the JSC. However, instead of “appointing” the judge in accordance with Section 15(2) of the JSC Act, the President forwarded his name to the National Assembly for consideration and vetting. The President invoked Article 250(2)(b) of the Constitution, which provides that members of constitutional commissions (of which the JSC is one) would – inter alia – have to be approved by the National Assembly.

The President’s actions were challenged before the High Court. The case was carried to the Court of Appeal, and ultimately to the Supreme Court, which delivered its judgment on 31 March 2023. Over a dissent by Justice Njoki Ndungu, a majority of the Supreme Court held, first, that in accordance with Article 171, the National Assembly had no role to play in the vetting of the elected nominees; and secondly, that insofar as Section 15(2) of the JSC Act granted authority to the President to “appoint” these elected nominees, it was ultra vires Article 171, and void. The majority based its reasoning on the following grounds: first, that while Article 250 made provisions in general for a group “Chapter Fifteen Commissions”, Article 248 made clear that these provisions applied to Commissions “except to the extent that this Constitution provides otherwise.” (paragraph 56) Article 171 – a self-executing provision for JSC appointments – was an instance where the “Constitution provides otherwise.” (paragraph 57) Secondly, that Article 171 itself envisaged different appointment procedures for different types of nominees. When it came to the public member nominees, for example, Article 171 explicitly envisaged a vetting role for the National Assembly. Consequently, where it did not do so – e.g., for the judicial nominees – it was clear that the Constitution did not intend for the National Assembly to play a role. (paragraph 65) And thirdly – and for largely the same reasons – that Article 171 clearly precluded interpolating the President into the process, even if his role was meant to be largely ceremonial (as the Respondents argued).

While the Majority’s reasoning and conclusion rested upon a close reading of the constitutional provisions and of the JSC Act, there are two deeper, unarticulated points that emerge from the judgment, and which are worth thinking about.

The first is the majority’s insistence that the Constitution could not be read to grant to the President (read: the Executive) any more powers than which were expressly set out in the constitutional text. Indeed, an argument that the President’s power flowed from Article 250 read with Article 132(4) of the Constitution – the latter of which authorises the President to “perform any other executive function provided for in this Constitution” – was explicitly rejected by the Majority (paragraph 52). Now, when you think about it, there are two ways in which a Constitution can be interpreted when it comes to the question of power enjoyed by the political executive. The first is to say that the executive power to do “X” exists and is valid unless expressly prohibited by the Constitution. The second is to say that there is no executive power to do X unless expressly authorised for by the Constitution. The question turns upon the normative baseline of the Constitution: as the old chestnut goes, is everything permitted unless prohibited, or is everything prohibited unless permitted (except that here it applies to the executive, and not to individuals).

The majority’s answer is the latter. In some ways, this tracks the Supreme Court’s holding (exactly on this day, one year ago!) in the BBI case, on the question of the President’s power to initiate a “popular initiative” to amend the Constitution. In that case, as well, the majority read a constitutional silence against the power of the President to do “X”, and reasoned that any exercise of executive power would have to be traced back to an enabling constitutional provision. And both in the BBI case as well as in today’s judgment, the underlying sub-text is the lessons of history relating to the imperial Presidency, lessons that tell us that concentration or accretion of power in the Executive – which judicial interpretation can either enable or hinder – often leads to the erosion of democracy.

In fact, this overarching theme leads us to the second point, which is the majority’s application of the principle to the specific case of the JSC. Here, the majority drew upon the lessons of constitutional history to argue that the JSC was always meant to be independent (paragraph 84 – 88), and especially, independent of executive interference (except where an executive role is, of course, expressly provided for). Making the President the “appointing authority” was just such an example of executive interference, especially given that Article 250 was explicit in contexts where the President was the appointing authority for Commissions (paragraph 89). Thus, the majority held that “we believe and hold the firm view that the President can only exercise the functions, whether formal or ceremonial, donated to him by the Constitution. The President has no ceremonial role in the appointment of elected and nominated commissioners of the JSC.” (paragraph 91)

Indeed, the majority went further and noted that while under the old Constitution, the President would issue a gazette notification to signify an appointment, in this case, even that power was not available: it was the role of the Independent Electoral and Boundaries Commission to do so (paragraph 98). Thus, the majority held that “to give the President power to appoint or even to “appoint” by mere gazettement of names is to forget our history and the mischief Article 171 was intended to cure. (paragraph 100)

Now, the majority’s textual analysis, and its argument that there should be no “implied” executive power unless expressly provided, are beyond cavil. However, there is a slight slippage in the opinion insofar as the majority flags the importance of the independence of the JSC, and the need to protect it from “manipulation” by the executive, but does not elaborate upon how, if the President’s role is purely ceremonial, or gazette-esque, such manipulation is possible. Indeed, Section 15(2) – as it stood – already provided safeguards against the most common form of abuse by an appointing authority – the pocket veto – by stipulating a three-day time limit. Indeed, this point was seized upon by Justice Njoki Ndungu in her dissent, where she went into the question of JSC independence in some detail.

If one were to hazard a guess, one might say that even though Section 15(2) of the JSC Act purports to exclude pocket vetoes, the very interpolation of the President lowers the costs of executive manipulation. One may imagine situations where notwithstanding the three-day period, the President does not confirm an appointment, and makes an argument that while the three-day period envisages executive vetting by virtue of its very existence, there has not been enough time to do so. Protracted litigation would then ensue, and while the President may ultimately lose, the point is not so much about the outcome of the case, as it is that a provision such as section 15(2) enables the possibility of constitutional hardball by the executive, and in striking it down, the majority sought to anticipate and forestall any such hardball (indeed, on this point, it is interesting to note that Justice Njoki Ndungu would have struck down the three-day limit altogether, thus enabling indefinite pocket vetoes!). Indeed, in this context, Justice Njoji Ndungu’s dissent is interesting, because here one sees, clearly spelt out, the opposite interpretive philosophy: that is, executive power should be given full reign unless explicitly contained (see e.g. para 126). As in the BBI case, Justice Njoki Ndungu’s opinion is also based on constitutional history – but on a very different reading of constitutional history. It is perhaps for historians to tell us who gets it right!

A final point, by way of clarification. On the question of the independence of the JSC, the dissent criticised the majority for conflating the independence of the JSC with the independence of the judiciary, noting that, as a constitutional commission, the JSC’s status was not that of the judiciary. To an extent, this was enabled by the majority referring, in paragraph 84, to “the independence of the judiciary and by extension the JSC.” It is important to note, however, that technical criticism aside, the majority’s focus on independence was correct: the requirement of JSC independence flows from its position as a fourth branch, or guarantor institution, which provides the infrastructure that enables the effective realisation of rights (in this case, the rule of law, by securing the independence of the judiciary). The majority’s use of the phrase “by extension”, therefore, is best understood not in the narrow sense that Justice Njoki Ndungu understood it – as equivalent to the independence of the judiciary – but in a broader sense, where commissions such as the JSC create the framework within which rights are enabled.

We can therefore see that two issues of constitutional philosophy underlie this judgment: first, that the role of the Constitution is to limit executive aggrandisement (and therefore, wherever possible, that the Constitution must be interpreted to advance that goal); and secondly, the independence of fourth branch institutions must be protected not only from visible and immediate threats, but from indirect erosion, or – perhaps more accurately – a legal environment that enables erosion. These two ideas constitute the heart of the majority opinion, and provide the underlying justifications for its reading of the constitutional text and structure.

The Land Acquisition Bench and Continuing Issues around the “Master of the Roster”

Gautam Bhatia11 Comments

[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.]

On October 12, it was reported that a five-judge bench of the Supreme Court would start hearing a set of cases about the interpretation of Section 24 of the Land Acquisition Act (2013). The Bench would be led by Arun Mishra J., and would commence hearings on October 15 (tomorrow). The composition of the Bench, however, has immediately raised eyebrows. To understand why, it is important to set out a brief history of the dispute.

The legal controversy itself – that involves the fate of huge tracts of land across the country – has been ably summarised by Suhrith Parthasarathy and Namita Wahi. For our purposes, the point is this: in 2014, a three-judge bench of the Supreme Court (Pune Municipal Corporation) interpreted Section 24 of the Land Acquisition Act in one way. The Supreme Court’s interpretation (as is normal) was followed by High Courts across the country, and also by multiple two-judge benches of the Supreme Court itself, for the next four years. However, in December 2017, a two-judge bench of the Supreme Court took a contrary view, and asked for a larger bench to consider the matter. In accordance with convention, the Chief Justice constituted a three-judge bench to look into the issue. Very swiftly after that (in February 2018, within two months of the December 2017 judgment) that three-judge bench (Indore Development Authority) also took the opposite view on Section 24 from Pune Municipal Corporation.

Now, in the normal course of things, the judgment of a three-judge bench is binding on all coordinate benches; consequently, if a three-judge bench disagrees with another three-judge bench, the correct thing to do is to refer the issue to the Chief Justice, so that a higher bench can lay down the position of law authoritatively.* However, instead of doing this, a majority of the three-judge bench – over a dissent by Justice Shantanagouder – held that Pune Municipal Corporation was per incuriam (a judgment delivered without the authority of law), and therefore not binding. In one stroke, therefore, the Bench in Indore Development Authority exempted itself from being bound by Pune Municipal Corporation, overruled all the two-judge bench decisions that had followed it, and declared that its reading of Section 24 was now the law. Soon after that, pending land acquisition matters in the Supreme Court began to be disposed off in accordance with the new understanding.

As Suhrith Parthasarathy pointed out at the time, in a legal system that rests upon the principle of stare decisis (consistency and uniformity of interpretation), coordinate benches overruling each other – especially in order to upset a settled interpretation of law – is improper. To this it may be added: calling another judgment per incuriam is not something that is done in the normal course of things. Per incuriam means not simply that the prior judgment is wrong, but that it is so wrong (it missed a binding statute or ignored a binding judgment) that it has no legal force at all. Indore Development Authority’s understanding of per incuriam, therefore, is itself open to doubt; but what is not open to doubt is the problematic manner in which the Indore Development Authority bench acted.

Unsurprisingly, this led to immediate chaos at the Supreme Court. The issue was brought to the notice of another three-judge bench of the Supreme Court, headed by Lokur J., who had been one of the parties to the original Pune Municipal Corporation decision (full disclosure: the author was, at the relevant time, working in the chambers of one of the senior counsel involved in the petitions). Lokur J. passed an order noting that the question of whether a three-judge bench could hold the decision of another three-judge bench to be per incuriam needed to be considered. Until this question – and the question of whether there needed to be a reference to a larger bench to decide the issue – was decided, he also requested other Supreme Court benches not to continue with disposing off pending land acquisition matters. The very next day, however, two two-judge benches of the Supreme Court – that were hearing the land acquisition cases – referred the matter directly to the Chief Justice. That was how the matter ended up with the Chief Justice (at the time, Dipak Misra CJI), and how the present Constitution Bench came to be set up.

I discuss this history because it reveals that there existed two clear – and very entrenched – views in the Supreme Court about the interpretation of Section 24 of the Land Acquisition Act. These views were entrenched enough for coordinate benches to declare judgments per incuriam, to overrule a long line of settled precedent on one side, and to request benches within the same Supreme Court to temporarily suspend hearing land acquisition cases, on the other (for the avoidance of doubt, this does not imply, of course, an equivalence).

That a five-judge bench is needed to resolve this controversy and lay down the law on the meaning of Section 24 may, ultimately, have been inevitable. However, here is the problem: the December 2017 two-judge bench order doubting the correctness of Pune Municipal Corporation was authored by Arun Mishra J. The February 2018 three-judge bench decision in Indore Development Authority, holding Pune Municipal Corporation to be per incuriam, was authored by Arun Mishra J. The 22 February order referring the question to the Chief Justice – in the teeth of Lokur J.’s order – was also authored by Arun Mishra J. And the five-judge bench that has been set up now to resolve the “conflict” is headed by Arun Mishra J. In other words, the same judge, sitting in a two-judge bench, doubted the correctness of a three-judge bench; then, sitting in a three-judge bench, overruled that decision (over a dissent) in favour of his interpretation of the law; when this was questioned by another three-judge bench, referred the case to the Chief Justice; and is now heading the five-judge bench to decide who was correct.

On any conceivable understanding of natural justice and the rule of law, this is simply unsustainable, especially in a Supreme Court that has thirty-four judges. And this brings us to the root of the problem, which is not really about personalities, but is institutional: the institution of the “master of the roster.” Recall that the Chief Justice’s position as the “master of the roster” (as entrenched in a series of judgments early last year) vests in her absolute discretion to constitute benches and allocate matters in the Supreme Court. When the controversy was at its height last year, I had written that the principle of the “master of the roster” – that originated out of administrative needs, and the requirement of needing someone to administer the court – was very problematic in the context of the modern Supreme Court. The Court’s strength (at that time, 26 judges), combined with the gradual weakening of the gravitational force of precedent effectively means that the Office of the Chief Justice’s administrative power of selecting benches can at least potentially in some cases translate into the power to affect outcomes (if not to determine them).

The composition of the Land Acquisition Bench gives us a textbook example of this. Because of the absolute discretion of the Master of the Roster in constituting benches, there is no questioning why the Bench is the way it is; however, the effect is self-evident – the Bench, which has been set up to resolve an interpretive controversy within the Supreme Court, is led by a judge who has been a protagonist on one side of the controversy, expressing his views not once but on several occasions, and not in extra-judicial forums, but through judgments of the Court. What would a detached and objective observer conclude upon seeing this? They would conclude that in this five-judge bench, at least one vote – the vote of the senior-most judge – is more or less decided (and it is unsurprising that the All India Farmer Association has already written to the Chief Justice making exactly this point).

And the solution – it bears repeating – has to be institutional. As long as absolute power remains concentrated in a single individual – who happens to be occupying the Office of the Chief Justice – issues of this kind will continue to arise, especially when the stakes are as high as they are in this case (as this thread summarises). The Master of the Roster has created a single point of failure, something that – it is well-known by now – is the surest death knell for institutional integrity. And the damage is long-lasting: in this case, for example, even if the Bench is now to be reconstituted, questions will linger over why it was constituted this way in the first place, and the continuing trustworthiness of a process that has been vitiated so badly in the first instance.

There are possible solutions: the establishing of Constitution Benches by a random draw of lots, or having a permanent Constitution Bench with the five senior-most judges (at any given time) occupying it; and so on. But what is clear is that the concept of the “Master of the Roster” has become – and will continue to be – a huge albatross around the neck of the Supreme Court. And in a poly-vocal Court of thirty-four judges, the present controversy has shown just how unsustainable it is.

*In this case, it is also interesting to note that until 2018, a very large number of Supreme Court judgments had followed Pune Municipal Corporation, without demurral about its correctness; the controversy actually began with the Indore Development Authority judgment, where a bench suddenly realised – after four years – that multiple Supreme Court judgments had all gotten it wrong).