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Mainstream, VOL LVIII No 26, New Delhi, June 13, 2020

Importance of Collegiality in Supreme Court’s Decision Making: Is the Decision of the Hon’ble Chief Justice of India to constitute Single Judge Benches a good one?

A Request for Reconsideration

Saturday 13 June 2020

by Ashok Kumar Panda, Aniruddha Purushotham

The Supreme Court of India has been established under Article 124(1) of the Constitution. Whilst in law there is only one Supreme Court of India, it is a common expression at the Bar that there are in fact seventeen Supreme Courts — for the reason that the Hon’ble Judges normally sit in the seventeen courtrooms of the Supreme Court in divisions of two or three Judges each.

The qualitative effects of collegiality in the decision-making process, apart from some passing reference, have been largely overlooked and remain unexamined. However, the Constituent Assembly was quite aware that collegiality is a crucial variable in judicial decision making and thus mandated under Article 145(3) of the Constitution that a minimum of five judges are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution or for the purpose of hearing any reference under Article 143. With this safeguard, the Constitution conferred autonomy on the Supreme Court itself to make rules for regulating the practice and procedure of the Court, including the powers to fix the minimum number of Judges who are to sit for any purpose and also to further define the powers of Single Judges and Division Courts.

In this background, we set out to examine the Supreme Court (Amendment) Rules, 2019, whereby the following proviso has been inserted in Order VI, Rule 1:-

Provided that the following categories of matters may be heard and disposed of finally by a Judge sitting singly nominated by the Chief Justice:

(I) Special Leave Petitions arising out of grant, dismissal or rejection of bail application or anticipatory bail application in the matters filed against the order passed under Section 437, Section 438 or Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) involving the offences punishable with sentence up to seven years imprisonment;

(II) Applications for Transfer of Cases under Section 406 of the Code of Criminal Procedure, 1973 (2 of 1974);

(III) Application of an urgent nature for transfer of cases under Section 25 of the Code of Civil Procedure, 1908 (5 of 1908);”

The amendment has cleaved away from a seventy-year-old practice, and now the powers of the Single Judge have been significantly enhanced. But the rationale behind this decision remains unclear. From a progressive and optimistic perspective, the amendment may reduce the pendency of cases and perhaps allow for a more expeditious disposal of matters. However, it has to be weighed against several other factors, including whether this unbridled power of a Single Judge to finally hear and dispose off Special Leave Petitions undermines the majesty of the Court and threatens to expose the frailties of the individual.

The Constitution has vested the Supreme Court with plenary powers under Article 136. It is a discretionary power that the Court exercises after due deliberation. For the litigant, it is designed to be a remedy of last resort, as well as a mechanism to correct wrong law from being propounded by the lower courts. But there is no inherent or statutory right for admission of the petition, and thus, the meritless special leave petitions are dismissed in limine on the first date of hearing. Further, in most cases the petitions are dismissed by a non-speaking Order and the dismissal finally concludes an era of litigation between the parties.

However, in matters of bail, the substantive trial is still pending and a dismissal of a bail application is neither a foreclosure of rights nor a condemnation. But in practice, dismissal of a bail application by a superior court inhibits the lower court from granting bail to the accused in the subsequent applications, unless there is an exceptional change in circumstances. Most lower court judges would often informally advice the counsel to go back to the higher court for relief. So, when the Supreme Court dismisses an SLP against the High Court’s rejection of the Petitioner’s bail application, it often becomes such that the litigant will again have to cycle through the Trial Court, Sessions Court, High Court and finally come back to the Supreme Court for bail in hopes of persuading the Bench this time around --- and this entire process can take upto one or two years. Thus, when the litigant approaches the Supreme Court for grant of bail under the Special Leave jurisdiction, there would be some satisfaction that the matter had been duly considered by a Bench of two judges from different perspectives and that they had jointly came to a consensus and conclusion.

But the Single Bench system will now become a deterrent for litigants — who had always been and were ever so cautious in approaching the superior courts for the grant of bail. Hearing the matter singly reduces the confidence of the litigant on the judicial system, and even matters which would otherwise be a fit case for admission and relief may not come to this Court.

Further, the Supreme Court’s causelist contains predominantly ‘hard’ and ‘difficult’ cases, where passing judgment one way or the other is not easy. Although, the Supreme Court has the benefit of examining the Order passed by the lower courts and can accordingly scrutinize the competing reasons as well as explore the rationale behind the order, these matters often demand an intensive examination to ensure that justice has been rightly delivered. Thus, it becomes easier to traverse the issues with a companion Judge. Passing carefully deliberated judgment is perhaps one of the most challenging of tasks, and it most burdensome in this last Court of appeal. Even the best of minds are not infallible and at times may become caught in a single track thought process. Thus, a companion or collegiate will ensure a comprehensive and lateral treatment of the matter, especially in criminal matters, as they tend to have factually complex narrations.

Now, another dimension to this is that single judges preside over Trial Court, and to a large extent, the same is true even upto the High Court. However, the system of the Supreme Court is on an entirely different landscape. The powers are drawn from different sources. Unlike the lower courts, which are regulated by the Cr.P.C. on the points of trial and the law of bail, the Supreme Court is governed by the Constitution. Furthermore, the appellate process, which safeguards against the miscarriage of justice, ends at the Supreme Court. Therefore, there is an intrinsic duty on the Supreme Court to ensure any miscarriage is not perpetuated any further.

In the Single Judge system, an important facet of justice which is curtailed is that of dissent and disagreement, which arises from the common goal and desire of arriving at correct law. As a result of this endeavor, there is an atmosphere where judges discuss, deliberate, respond and persuade each other. It thus creates a principled agreement which is arrived at after considering all the different stands, perspectives and viewpoints — which is all the more necessary in criminal matters, especially on the point of bail, as it has always been a discretionary power of the Court.

It is needless to say that a Judge of the Supreme Court is qualitatively better than the rest. Elevation to the Supreme Court is an acknowledgment of skill and aptitude. But, even a lifetime is not enough for even best of lawyers and judges to completely know law — as in the words of Thomas Fuller, “be ye never so high, the law is above you”.  The point that we are attempting to canvass is that that judge, despite his illustrious career, may not necessarily have a forte in criminal law, yet may have to preside over criminal matters. Furthermore, with a Single Judge system, sympathy and liberality may carry more weight than the merit of the matter itself, and it may be ultimately become a game of judicial roulette.

The findings of Justice J.S. Verma, which although were in a contextually different setting, interestingly, have force in the present circumstance as well:

“The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner.”

Furthermore, judges at the time of arguments confer with each other before passing Orders, which is extremely valuable in ensuring justice, regardless of whether the matter is admitted or dismissed — something which will be lost by splitting a Division Bench into Single Judge Benches.

It must also not be lost sight of that a collegiate system balances out the ideologies and preconceived notions of the individual judges, which thus ensures for a fair and correct consensus in the judicial decision-making process. Moreover, the amendment may even create a lacuna where judgments and orders passed by Division Benches of a High Court come to be tested by a Single Judge Bench.

Finally, it is important to observe that all matters before the Supreme Court under Article 136 deserve equal treatment. Classifying a certain group of matters as less important, or perhaps not warranting the attention of the Division Bench creates an arbitrariness and may even vitiate the principles of natural justice.

Thus, there are several variables that should be considered before implementing major decisions and changes to the judicial process. The reasons behind the present amendment may not be immediately appreciable by the Bar, as they have been based on the observations and experiences of the Bench --- and these are factors not visible to the Bar. However, there are also other variables and these are experienced by the Bar but not by the Bench — some of which have been canvassed in the foregoing — and this also has a significant impact developing the perceptions of justice being done and preserving the faith in the highest judicial institution of the land.

Hence, it would have been better to have a consultative process, inviting suggestions and comments of the Bar as well as other stakeholders before implementing the amendment. The importance of such a process has already been highlighted in several landmark cases. But, just to emphasize, it may be suitable to quote a short excerpt from Justice J.S. Verma’s judgement in “Supreme Court Advocates-on-Record Assn. v. Union of India (1993) 4 SCC 441”:

466. It has to be borne in mind that the principle of non-arbitrariness which is an essential attribute of the rule of law is all pervasive throughout the Constitution; and an adjunct of this principle is the absence of absolute power in one individual in any sphere of constitutional activity. The possibility of intrusion of arbitrariness has to be kept in view, and eschewed, in constitutional interpretation and, therefore, the meaning of the opinion of the Chief Justice of India, in the context of primacy, must be ascertained. A homogenous mixture, which accords with the constitutional purpose and its ethos, indicates that it is the opinion of the judiciary ‘symbolised by the view of the Chief Justice of India’ which is given greater significance or primacy in the matter of appointments. In other words, the view of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation. In actual practice, this is how the Chief Justice of India does, and is expected to function so that the final opinion expressed by him is not merely his individual opinion, but the collective opinion formed after taking into account the views of some other Judges who are traditionally associated with this function.”

Decisions which have wide ramifications and change the everyday functioning of the institution should not be made unilaterally and should be through a participative and consultative process. Justice M.P. Thakkar in “Union Of India And Another vs Tulsiram Patel And Others (1985) 3 SCC 398” expressed his anguish on authoring judgments without consulting the other judges of the Bench. His short dissent is equally applicable to the present situation. He observed:

“A ’give’ and ’take’ of ideas, with due respect for the holders of the opposite point of view (in a true democratic spirit of tolerance), with willingness to accord due consideration to the same, would not have impaired the search for the true solution or hurt the cause of justice. The holders of the rival view points could have, perhaps, successfully persuaded and converted the holders of the opposite point of view or got themselves persuaded and converted to the other point of view.”

Thus, the issue of widening and conferring the power on the Single Judge to finally hear and dispose off special leave petitions requires reconsideration with due inputs from the Bar as well, as the amendment may create more problems than solutions.

We can aptly conclude with the age old saying that “two minds are better than one!”

Authors:

  • Ashok Kumar Panda, Senior Advocate
    (sr_adv_akpanda[at]yahoo.co.in)
  • Aniruddha Purushotham, Advocate
    (aniruddha.purushotham[at]gmail.com) 
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