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Thursday, July 19, 2018

Key questions in disagreement between SC 3-judge Benches

What questions of law, judicial propriety are involved in the working of Benches?

Written by Faizan Mustafa , Yogesh Pratap Singh | Updated: March 6, 2018 9:35:42 am
supreme court, convicted parties, convicted lawmakers, apex court, dipak misra, am khanwilkar, sc on electoral politics, de-registeration of political parties The Supreme Court of India (Express File Photo)

A five-judge Bench led by the Chief Justice will Tuesday take up for resolution a conflict between two orders passed by the court. What questions of law, judicial propriety are involved in the working of Benches?

Why is there a difference in the size of the Benches of the Supreme Court?

In his original draft of the Constitution, Sir B N Rau, Advisor to the Constituent Assembly, proposed (on the advice of Justice Felix Frankfurter of the US Supreme Court) that India’s Supreme Court should exercise its jurisdiction as a full court, and not as separate Benches. But this was not endorsed by the Constituent Assembly, which was keen to make optimal use of judicial time.

At the time of the commencement of the Constitution in 1950, the Supreme Court was envisaged as having a Chief Justice and seven puisne judges, with Parliament having the power to increase this number. In the early years, all judges sat together, but as the work of the court increased and a backlog accumulated, Parliament increased the number of judges from eight in 1950 to 11 in 1956, 14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2008 (the current strength). Judges started sitting in smaller Benches of two or three, coming together in larger Benches of five or more only in certain cases.

This is different from the US, where all nine Supreme Court judges sit together. In the UK, Australia, Canada and South Africa, too, judges generally sit together, or in large Benches. Since most of these courts have seven to nine judges, even five- or seven-judge judgments reflect the opinion of the majority.

What sort of cases are heard by the larger Benches?

Under Article 145(3), “any case involving a substantial question of law as to the interpretation of the Constitution” must be decided by a Bench of at least five judges. Such a Bench is called a Constitution Bench. However, in several cases, constitutional issues have been decided by smaller Benches as well. In Selvi & Ors vs State Of Karnataka & Anr (May 5, 2010), for example, a three-judge Bench decided the constitutionality of narco-analysis. A matter can be referred to a larger Bench only by a judicial order. But a 13-judge Bench to reconsider the famous Kesavananda Bharati judgment was initially constituted without a judicial order of reference, and had to be dissolved after two days of tense hearing.

Who constitutes the Benches, and who sits on them?

Even though the Chief Justice of India is the head of the judiciary, he is only the first among equals. The Constitution does not make him the “Master of Rolls”; it is the Supreme Court Rules that vest in him the power to constitute Benches as part of his administrative responsibilities. Though all judges, including the CJI, are equal in their judicial powers, ideally, the vast experience of senior judges should be used in Constitution Benches. However, legally speaking, junior judges too, can be picked.

Is the Supreme Court bound by its own decisions?

In Bengal Immunity Co. Ltd vs State of Bihar & Ors (September 6, 1955), the Supreme Court affirmed the power to overrule its own decisions, but stressed that this power must be exercised sparingly and with caution. In Keshav Mills Ltd vs Commissioner Of Income-Tax, Bombay (January 30, 1953), the court said that barring considerations of a substantial and compelling nature, it would be reluctant to revise its earlier decisions.

Are smaller Benches bound by judgments of larger Benches?

This matter is fairly settled — a Bench of the Supreme Court must follow a decision delivered by a Bench of a larger or even equal strength. In case of inability to agree, the only option available is to refer the matter to the CJI, requesting that a larger Bench be constituted to resolve the conflict. Justice R C Lahoti laid down the basic principles in Central Board Of Dawoodi Bohra Community vs State Of Maharashtra & Anr (December 17, 2004):

* The law laid down by a larger Bench of the SC is binding on any subsequent Bench of lesser or co-equal strength.

* A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum, and in case of doubt all that the Bench of lesser quorum can do is to request the CJI to place the matter before a Bench of larger quorum than the Bench whose decision has come up for consideration.

* It will be open only to a Bench of co-equal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength.

That said, this is only a question of judicial propriety and the need for certainty in law — there is no provision in the Constitution to the effect that a smaller Bench of the Supreme Court is bound by judgments of larger Benches. Since the Supreme Court has 11-13 Benches, conflicting opinions are natural. What to speak of different judges — in an interesting case, the same five-judge Bench took one position on the definition of ‘State’ in Sukhdev Singh vs Bhagat Ram (1975) by holding ONGC, LIC, and industrial and finance corporations as ‘state’, and a different position in another judgment on the same day in Sabhajit Tewary vs Union of India by refusing to hold CSIR as ‘state’.

What are some examples of Benches overruling decisions of smaller Benches?

The emphasis on the doctrine of stare decisis (see box above) notwithstanding, the Supreme Court has overruled itself in a large number of cases:

* An 11-judge Bench in I C Golaknath & Ors vs State Of Punjab & Anr (February 27, 1967) overruled two earlier judgments of Constitution Benches — Shankari Prasad Singh Deo vs Union of India (October 5, 1951) and Sajjan Singh vs State of Rajasthan (October 30, 1964). The decision of the 11-judge Bench was itself overruled by a 13-judge Bench in Kesavananda Bharati vs State Of Kerala and Anr (April 24, 1973). While Shankari Prasad and Sajjan Singh had given unlimited powers to Parliament to amend the Constitution, Golaknath said Parliament could not amend the Constitution. Kesavananda Bharati held Parliament could amend any provision of the Constitution, but could not destroy its basic structure.

* In Maneka Gandhi vs Union of India (January 25, 1978), the Supreme Court overruled A K Gopalan vs State of Madras (May 19, 1950). It said that to deny personal liberty under Article 21, a mere law will not suffice (as had been held in Gopalan); such a law must also be reasonable, fair, just, and non-arbitrary.

Has a smaller Bench ever overruled the judgment of a larger Bench?

The primacy of the CJI’s opinion was not explicitly held as part of the basic structure by Justice J S Verma in the nine-judge Bench decision in the Second Judges’ Case (Supreme Court Advocates on Record Association vs Union of India, October 6, 1993), but a five-judge Bench held so in the NJAC judgment of October 16, 2015. In several cases, smaller Benches have not followed the doctrine of procedural due process laid down in Maneka Gandhi.

What is the principle of per incuriam, and what is its relationship with stare decisis?

The doctrine of per incuriam evolved in British courts as an exception to stare decisis. It means a lack of care and often, per ignorantiam, i.e., ignorance of the law. Lord Godard, CJ, observed in Huddersfield Police Authority vs Watson (1947) that per incuriam signifies that a court has acted in ignorance of a House of Lords decision, or when a decision is given in ignorance of the terms of a statute or rule having statutory force.

A per incuriam judgment is not a binding precedent. It applies to only ratio decidendi, not to obiter dicta (see box left).

Judicial discipline requires consistency with regard to decisions rendered by co-equal Benches on the same issue. In Municipal Corporation of Delhi vs Gurnam Kaur (September 12, 1988), the Supreme Court said that a decision given in ignorance of a statute or rule will be per incuriam. In State of Assam vs Ripa Sarma (February 20, 2013), the court said a judgment rendered in ignorance of earlier judgments of Benches of co-equal strength would be per incuriam. In Santosh Kumar Bariyar vs State of Maharashtra (May 13, 2009) a two-judge Bench of Justices S B Sinha and Cyriac Joseph held six judgments per incuriam in one go, including a judgment by a three-judge Bench. Justice Sinha observed that these judgments had wrongly applied the famous judgment in Bachan Singh vs State of Punjab (May 9, 1980). The court had ruled in Bachan Singh that the death penalty should be given only in the “rarest of rare” cases, and that in making this decision, in addition to the nature and gravity of the crime, the criminal’s circumstances too, must be taken into account. But in these six cases, the Supreme Court had taken only the gravity of the crime into account. The Bachan Singh ratio also made “public perception” irrelevant to the award of sentence — yet, in cases including that of Afzal Guru, judges of smaller Benches have awarded death to satisfy the so-called “conscience of the nation”.

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Order vs Order

THE 2013 land acquisition Act lays down that if land was acquired (under the earlier Land Acquisition Act, 1894) five years or more prior to the commencement of the new (2013) Act, and compensation had not been paid, the acquisition would lapse. The idea was to ensure a better deal for farmers under the new, progressive law.

ON JAN 24, 2014, a three-judge Bench of Chief Justice R M Lodha, and Justices Madan B Lokur and Kurian Joseph, in Pune Municipal Corporation & Anr v Harakchand Misirimal Solanki & Anr unanimously held that “paid” would mean compensation offered or rendered, and deposited in court.

ON FEB 8, 2018, in Indore Development Authority v Shailendra (Dead) through Lrs & Ors, a Bench of Justices Arun Mishra, A K Goel and Mohan M Shantanagoudar by a majority of 2:1 (Mishra and Goel) held the judgment in Pune Municipal Corporation per incuriam. The court said that once compensation had been unconditionally offered and refused, it would satisfy the requirement of payment.

ON FEB 21, 2018, a Bench of Justices Lokur, Joseph and Deepak Gupta was surprised to know that a three-judge Bench had declared a decision of an earlier three-judge Bench (of which Justices Lokur and Joseph were part) per incuriam. Justice Lokur’s Bench stayed hearings in related matters in HCs and requested other Benches of the apex court to wait as it considered whether to refer the matter to the Chief Justice of India for constitution of a larger Bench.

HOWEVER, on February 22, two separate Benches led by Justices Goel and Mishra referred the matter to the CJI. On February 24, it was notified that a five-judge Bench led by CJI Dipak Misra and comprising Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan would hear the matter on March 6 to try to resolve the conflict between the 2014 and 2018 orders of the court.

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Meaning: Key legal terms

Stare decisis: Latin; stare decisis et non quieta movere is to not disturb settled matters. Like other common law countries (where precedent is important), in India, too, there is a high degree of predictability in judicial decisions, as cases are decided based on past decisions in similar cases.

Ratio decidendi: Latin; refers to the reason or rationale for a decision. It is that part of a judgment by which lower courts are bound. (For example, the Ayodhya title suit verdict, appeals against which are now before the Supreme Court, runs into 10,000 pages, but not all of it is ratio decidendi.) The ratio can be tested by the “reversal test” of Wambaugh or the “material facts” test of Goodhart. In the Wambaugh test, if reversing the proposition laid down by the judge reverses the finding, the proposition is deemed as the ratio, else it is not. In the Goodhart test, the ratio is based on the facts the judge treats as material; this test focuses more on what judges do than on what judges say.

Obiter dictum: Latin, plural obiter dicta; refers to remarks made in passing. High Courts by and large agree that obiter dicta, too, come within the purview of Article 141 of the Constitution (“The law declared by the Supreme Court shall be binding on all courts within the territory of India.”), provided they aren’t mere casual observations. In Union of India vs Firm Ram Gopal Hukum Chand and Ors on January 1, 1960, Justice S S Dhavan ruled that Article 141 “has the effect, in addition to investing the decisions of the Supreme Court with a binding force, of creating a constitutional organ whose declaration of law pronounced ex cathedra shall be binding on all courts in the Republic”.

Ex cathedra: Latin; “with the full authority of office”. Not everything a judge says is ex cathedra — in Divisional Controller, KSRTC vs Mahadeva Shetty and Anr on July 31, 2003, the Supreme Court ruled, “Precedents sub silentio and without argument are of no moment. Mere casual expression carry no weight at all. Nor every passing expression of a judge, however eminent, can be treated as an ex cathedra statement having the weight of authority.”

(Faizan Mustafa is a well-known jurist. Yogesh Pratap Singh is Associate Professor, National Law University Odisha)

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