Coordinating Judgements: Ensuring Certainty In The Law

On 19th June, a 3-judge bench of the Supreme Court headed by Justice Ashok Bhushan pronounced judgement in S. Kasi v. State through the Inspector of Police("S. Kasi"). The case involved a criminal appeal against the judgment passed by the Learned Single Judge of Madras High Court sitting at the Madurai bench dated 11.05.2020 in Crl.O.P.(MD) No.5296 of 2020. The Appellant had moved the High Court praying for grant of default bail as per Section 167(2) of the Code of Criminal Procedure, 1973 ("CrPC") on account of passage of 73 days since his arrest and non-filing of charge sheet and thus.

In dismissing the Appellant's bail application, the Learned Single Judge relied upon the order of the Supreme Court dated 23.03.2020 in Suo Moto W.P.(C) No.3 of 2020. That order stated:

"To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings."

Thus, the Learned Single Judge concluded that the Supreme Court order eclipses all provisions prescribing a period of limitation, including the time prescribed under Section 167(2) of the CrPC.

The Supreme Court allowed the appeal against the judgement of the Learned Single Judge and clarified that the order dated 23.03.2020 extended the period of limitation w.e.f. 15.03.2020 for filing petitions/ applications/ suits/ appeals/all other proceedings to protect individuals whose petitions and other proceedings would become time barred as a result of a lack of accessibility to the Courts. Further, the Court clarified that the benefit of this order was not available to investigating agencies as they could still file the charge sheet during the lockdown and that order of the Court dated 23.03.2020 was never meant to curtail any provision of CrPC or any other statute which was "enacted to protect the personal liberty of a person".

There can be no dispute that the Learned Single Judge erred in his judgement which was correctly set aside by the Supreme Court. What is interesting, however, is that the decision and view taken by the Learned Single Judge was in complete contravention of the decision of a coordinate bench in Settu v. The State, Crl. O.P. (MD) No. 5291 of 2020("Settu") dated 08.05.2020. In Settu, the Learned Single Judge had stated that the order of the Supreme Court dated 23.03.2020 was inapplicable to Section 167(2) of the CrPC. The decision of the High Court in S. Kasi therefore raises the question of judicial discipline. It is a well-established principle that a coordinate bench cannot take a view contrary to the view of another coordinate bench. However, where it wishes to differ, it can merely refer the matter to a larger bench in case of a conflict for an authoritative ruling. This article seeks to examine that principle and the Supreme Court's own treatment of judicial discipline in respect of precedent and coordinate benches.

Tracing the Origins

The Indian judicial system is founded on common law doctrines of precedent and stare decisis. This is enshrined under Article 141 of the Constitution of India, 1950, which articulates that the law declared by the Supreme Court is binding on all courts within the territory of India. These principles are well-founded in order to ensure certainty in clarity in the law. Observing case law from the United Kingdom, it can be seen that the issue of conflicting decisions is not a new one. There are multiple instances where the Court of Appeal, Court of Criminal Appeal, and Divisional Court passed judgments which conflicted with each other. It was Lord Greene M.R., who in Young v. Bristol Aeroplane Co., propounded rules regarding precedent, carving out an exception in respect of conflicting decisions. In that case, Lord Greene states that the Court is entitled to and bound to decide which of the conflicting decisions it would follow.

Subsequently, what followed is that when faced with conflicting judgments, lower courts would "choose" which precedent they would follow, or which was more applicable to the case at hand. This led to confusion and a lack of clarity within the Court system. It was not clear whether lower courts were ignoring precedent owing to decisions being made per incuriam, or otherwise. This led to the decision in Colchester Estate (Cardiff) v. Carlton Industries, where it was observed:

"On this state of authorities both counsel for the plaintiff and counsel for the defendant submitted that the existence of two conflicting decisions of judges of coordinate jurisdiction meant that I was entirely free to choose between them and should not start with any preference for one over the other. While I readily accepted that that would be the position where the second decision was given, for example, in ignorance of the first, I was troubled at the suggestion that it would necessarily be the same when the second was given after full consideration of the first."

Subsequently, it was observed that the law demands a finality, and a certainty which necessitates that it must be understood that the matter, or point of law is settled at the first instance. This is of course unless it is decided upon by a bench of larger strength, or a court that serves an appellate function in the hierarchy of courts. Justice Nourse held that the only circumstance in which a third judge may choose which precedent to follow is where they are convinced that the second judge erred in following the first judgment.

This position was not acceptable to the Indian courts. In Jaisri v. Rajdewan, Justice TL Venkatarama Aiyar observed that law would be bereft of utility if it was thrown into a state of uncertainty by conflicting decisions, and that any questions yielding conflicting conclusions ought to be authoritatively settled. It was also observed that leaving conflicting decisions by coordinate benches, or benches of coequal strength would leave subordinate Courts without guidance. Often, where a coordinate Bench wishes to disagree with the opinion of precedent, the matter is referred to a larger Bench, in order to authoritatively settle the question. This avoids conflict and ensures clarity in the law.

The legendary Justice Subba Rao as a judge of the Madras High Court observed, in K.C. Nambiar v. State of Madras that the procedure was as follows: A Divisional Bench must ordinarily respect another Divisional Bench of co-ordinate jurisdiction; but if it differs the case should be referred to a Full Bench.

Given this protocol, it becomes necessary to examine instances where this principle has been flouted by the Supreme Court in recent times, the most notable of which was in the Indore Development Authority cases.

The Indore Development Authority Saga

The issue started in 2014 when a 3 judge bench of the Supreme Court headed by then-Justice R.M. Lodha along with Justices Lokur and Joseph in Pune Municipal Corporation v. Harakchand Misirimal Solanki( "PMC") held that even if compensation was deposited into the government treasury it would not be equivalent to compensation paid to the land owners/persons interested. The judgement held the ground for 3 years before the correctness of the same was doubted by a 2 judge bench headed by Justice Arun Mishra in Indore Development Authority v. Shailendra( Dead)("Indore I"). On the basis of the reference in Indore I, the matter was placed before a 3 judge bench headed by Justice Arun Mishra along with Justices Goel and Shantanagoudar and the judgement that came to be was Indore Development Authority v. Shailendra(D) through LRs("Indore II"). wherein the majority judgement, authored by Justice Arun Mishra, held that the judgement in PMC was per incuriam and did not need a reference to a bench of 5 judges. The dissenting opinion of Justice Shantanagoudar expressed disagreement with the judgement in PMC but, did not go as far as to hold it to be per incuriam and stated that the only recourse that was available was a reference to a larger bench as per the judgement of the Supreme Court in Sant Lal Gupta v. Modern Cooperative Group Housing Society Ltd. A few days later, another 3-judge bench headed by Justice Lokur sitting with Justices Joseph and Gupta hearing the case of State of Haryana v. G.D. Goenka Tourism Corporation effectively stayed the operation of the judgement in Indore II. The very next day, two separate benches of the Court headed by Justices Mishra and Goel referred land acquisition cases to the Chief Justice of India at the time, Justice Dipak Misra for the setting up of an "appropriate" bench. The Chief Justice set up a bench of 5 judges led by himself to hear the matter but the matter was never heard during the tenure of the then Chief Justice. Only when his successor, Justice Ranjan Gogoi entered office was the matter listed before a bench of 5 judges led by him but, for some reason this bench was also unable to hear the matter. Ultimately the matter fell for consideration before a bench of 5 judges led by Justice Arun Mishra which led to another fresh controversy emerging from pleas for his recusal as he had already expressed his views in Indore II. The pleas for recusal were dismissed vide a 60 page order authored by Justice Mishra and the bench continued to hear the matter and delivered its judgement, authored by Justice Mishra in Indore Development Authority v. Manoharlal on 6th March, 2020 and overruled the PMC judgement.

Curiously, the 5 judge bench did not comment upon the issue of whether a Bench can set aside a judgment of an earlier Bench of the same strength. After an eventful journey, the Indore Development saga concluded but, questions of whether a Bench can set aside a judgment of an earlier Bench of the same strength and the recusal of a judge in case of a prior expressed opinion on a matter before him, were in the spotlight for the longest period and received a lot of scrutiny amongst the legal fraternity, but there are other similar instances involving benches of the same strength that do not receive similar scrutiny and treatment.

The one that flew under the radar

The seat vs. venue debate in the world of arbitration continues to rage on without a quietus being put to the issue. A 5 judge bench of the Supreme Court in 2012 in the case of Bharat Aluminium Company v. Kaiser Aluminium Technical Services("BALCO") was set up to examine the correctness of the judgements in Bhatia International v. Bulk Trading SA and Venture Global Engineering v. Satyam Computer Services Ltd wherein the Supreme Court held that the Indian courts had jurisdiction with respect to foreign-seated arbitration similar to their jurisdiction over arbitrations seated in India under Part I of the Arbitration and Conciliation Act, 1996("the Act"). The judgement in BALCO overruled these judgements and clarified that the seat of the arbitration, once chosen, attains a permanent character which decides the scope of the powers and determines the jurisdiction of the court that has the final supervisory jurisdiction over the arbitration and that the venue is described to be temporary in nature and may be subject to change.

The judgement that ruffled some feathers was the decision of the 3 judge bench in Union of India v. Hardy Exploration("Hardy Exploration") authored by Chief Justice Dipak Misra. In this judgement, the Court held that the venue of the arbitration would not be termed as the seat without something substantial to support the same and merely the absence of anything to the contrary would not allow the venue to be termed as the seat. The Court also held that whether the venue would be the seat would have to be determined on a case to case basis.

The conflict arose when a 3 judge bench headed by Justice Nariman in BGS SGS Soma JV v. NHPC Ltd.("NHPC") was of the opinion that in case a venue is designated with nothing else to the contrary it would also be the seat of the arbitration which equates the venue and the seat as the Court did in the Brahmani River Pellets Ltd. v. Kamachi Industries. Most importantly, the Court opined that the judgement in Hardy Exploration "cannot be considered to be good law" as it was contrary to the judgement of the 5 judge bench in BALCO wherein the judgement in Roger Shashoua v. Mukesh Sharma [2009] EWHC 957 (Comm) was followed. The England and Wales High Court in the above mentioned case held that the chosen venue (London) was the seat of arbitration because the parties had chosen London as the venue, not designated any other place as the seat and chose a supranational body of rules to govern the arbitration.

In summary, the Court in Hardy Exploration was of the view that a venue would only be construed as a venue unless there was something substantial to indicate that it is the seat of the arbitration. On the other hand, the Court in NHPC was of the opinion that the venue would be the seat in case there is nothing to the contrary, thus, venue equals seat unless proved otherwise. As is seen from the above discussion, the views of the Court in these two judgements are diametrically opposite and because they are both delivered by 3 judge benches, they both seem to hold the field simultaneously which will inexorably result in confusion and lead to further litigation on this subject matter.

The resulting confusion is apparent from the decision of the 3 judge bench in Mankastu Impex Private Limited v. Airvisual Limited("Mankastu"). This was a case seeking appointment of arbitrator under Section 11(6) of the Act. The Petitioner contended that the seat of the arbitration was Delhi as per the MoU and Hong Kong was merely the venue of arbitration and therefore, the Court could appoint an arbitrator under the Act. The Respondent, while relying upon other provisions of the MoU was of the opinion that the seat of the arbitration was Hong Kong due to the use of language such as "all disputes arising out of the MoU shall be referred to and finally resolved and administered in Hong Kong" and thus, the Court could not appoint an arbitrator due to the inapplicability of Part 1 of the Act to foreign seated arbitrations. The problem arose as the Petitioner relied upon the judgement in Hardy Exploration and the Respondent relied upon the judgement in NHPC. This resulted in the Court being faced with a difficult situation wherein it was faced with judgements delivered by two 3 judge benches which were contradicting each other and decided to sidestep the issue by actively disengaging on the point regarding the correctness of either judgement. Ultimately, the Court decided in favour of the Respondent without expressly approving either Hardy Exploration or NHPC, insofar that it agreed that Part 1 of the Act would not apply and came to the conclusion that Hong Kong was the seat of arbitration based on various clauses of the MoU read together which reflected the intent of the parties.

The Court in Mankastu may have skirted the conflict between the judgements in Hardy Exploration and NHPC but, it would be safe to say that this issue is likely to rear its ugly head soon and the only recourse will be a reference to a larger bench to authoritatively lay down the law on this subject to avoid any future discomfort. In accordance with the principle of judicial discipline, the Court in NHPC being of the opinion that the judgement in Hardy Exploration was contrary to the 5 judge bench in BALCO, ought to have placed the matter before the Chief Justice of India for the setting up of an appropriate bench instead of proceeding to set it aside, making the same mistake that the majority did in Indore II which, as was seen, led to some tension at the Court.

Conclusion

There can be no doubt about the fact that the Supreme Court was correct in allowing the appeal in S. Kasi and censuring the High Court's approach. However, the above discussed cases lead to the inevitable conclusion that the Supreme Court would benefit litigants thoroughly from heeding its own advice and providing finality to matters. The decision has reopened the discussion on judicial discipline in light of existing precedent by a coordinate bench. Following the doctrine of precedent and stare decisis necessitates that where Judges are faced with circumstances that are decided by a coordinate Bench, they respect that decision, or in the alternative, where they wish to differ, they refer the matter to a larger Bench to authoritatively decide the question of law. The absence of this leads to conflicting decisions leaving subordinate courts without guidance on what the position of Law ought to be. Positivists have long observed that Law is so called because it has been posited thus – it is clearly stated, and there is certainty in its application. Coordinate benches ignoring precedent, or rendering judgment in contrast to existing precedent goes against these principles, and results in law losing its characteristic finality before the public. The judiciary is entrusted with the public's faith, and works under the premise that Courts shall decide their cases with certainty. Heightened confusion caused by conflicting precedent weakens this premise, leading to a loss of credibility amongst the public.