The Conundrum Of Concurring Judgements: More Questions Than Answers

Article 141 of the Constitution of India emphatically states that the law declared by the Supreme Court shall be binding on all Courts across India.

It is settled law that the "ratio decidendi" literally translated as "reason for deciding" is to have binding effect. Given the tendency of the Judges to write lengthy judgements which consider all relevant and irrelevant issues and given the fact that there are, on most occasions, concurring opinions, this task of culling out the "law declared by the Court" which would have "binding effect" is strenuous. The practice of writing concurring judgements has now become common place. However, these concurring judgements often give birth to difficult questions regarding their value as a binding precedent. Take the case of a concurring judge who reaches the same conclusion but using a different reasoning. What then is the binding value of his reasoning? If the majority does not comment upon a distinct reasoning adopted in some concurring judgement, then questions regarding the value of such a judgement as a binding precedent are raised. There are several scenarios which give rise to complications and thus raise questions which cannot be easily answered. Let us take the example of the judgement of the apex court in Indira Gandhi vs. Raj Narain, where all five judges on the bench have struck down the 39^thAmendment, each giving different reasons justifying the ultimate conclusion that the said amendment violated the basic structure and would have to be struck down. Can we consider each reasoning to be the law declared by the Supreme Court under Article 141? This is but one example and is not sufficient to raise questions in the mind of a researcher. However, there are several other cases where concurring judgements have overruled previous judgements, given birth to new jurisprudential principles, adopted reasonings distinct from the majority, etc. Sometimes, Courts have found such concurring judgements to be binding whereas at the same time, on several occasions, the Courts have been reluctant to place reliance on such judgements by holding that they are not binding. It appears that there is no uniform principle adopted by the Courts in order to address these issues, thus giving rise to what we call, the conundrum of concurring judgements. Herein we shall try to highlight the different approaches adopted by the Courts in dealing with concurring judgements.

Liberal reliance on concurring judgements:

In the Navtej Singh Johar case, the Supreme Court struck down Section 377 of the Indian Penal Code to the extent that it criminalises sexual intercourse 'against the order of nature' between consenting adults. The bench of 5 judges delivered 4 judgements. Misra, CJ wrote for himself and Khanwilkar, J. Justices Nariman, Chandrachud and Indu Malhotra delivered concurring judgements. The reasoning adopted by all is almost on similar lines, qua Articles 14 and 21. Chandrachud, J, in his concurring judgement has delved into the development of the jurisprudence of Article 15 and developed the 'sex plus test' in order to prevent 'doctrinaire' interpretation of Article 15. An impediment in his this interpretation was the judgement of Air India vs. Nergesh Meerza. Chandrachud, J, declared that Nergesh Meerza, to this extent was not correctly decided. However, interestingly, the other judges have not expressed any opinions on this issue. Chandrachud, J, has delivered his singular concurring judgement while sitting in a bench of 5 judges. Nergesh Meerza was a judgement of a three-judge bench. We thus encounter a question as to whether the concurring judgement of Chandrachud, J, can be considered as a binding precedent which has now overruled Nergesh Meerza? Interestingly, Chandrachud, J seems to have answered this question in the affirmative in the case of Indian Young Lawyers Association vs. State of Kerala. In this case as well, he has delivered a concurring judgement. He relies on his own lone view in Navtej, in order to establish that any discrimination on the basis of sexual stereotypes shall violate Article 15.

In Padmanabha Ravi Varma vs. Deputy Tahsildar, Chittur, the Kerala High Court while adjudicating on the validity of the Kerala Land Tax Act, 1961 relied on Thathunni Moopil Nair vs. State of Kerala wherein the majority struck down the Travancore-Cochin Land Tax Act to be unconstitutional. Sarkar, J, dissenting, had however held that the State had legislative competence to legislate on this subject matter. The majority did not comment on this issue. The Kerala High Court however relied on the view of Sarkar, J, and held that as there was no contrary view expressed by the majority on the legislative competence aspect, the view taken by Sarkar, J had binding force.

The Allahabad High Court in Prem Prakash Gupta vs. Union of India,relied on Mahajan, J's (as his lordship then was) dissenting view in State of Seraikella v. Union of India, where the maintainability of suit filed against the Dominion of India and the Province of Bihar was being argued. Mahajan, J had held that the suit was maintainable, whereas the majority held otherwise. However, Mahajan, J, made an observation on an issue as to whether the suit was maintainable in the view of absence of a notice to the defendant u/s 80 of the Civil Procedure Code, and answered it in the negative. The majority chose to remain silent on this issue. The Allahabad High Court relied on this view by Mahajan, J and held that since the majority did not express any opinion on this issue and the minority comprising of Mahajan, J examined this issue, the view taken by Mahajan, J would have to be held to be binding law.

A division Bench of the Bombay High Court in M.B. Thakar vs. SP Pande, after a close perusal of Art. 141 and 145(5) of our Constitution observed, "it is clear that the law declared may as well be in a dissenting judgment as in a majority judgment." It further observed, "We hold that "the law declared" referred to in art. 141 is the law to be gathered from any judgment in a case decided by the Supreme Court, whether it is the judgment of a Judge forming the majority or of a Judge in a minority and dissenting."

In the case of State of A.P vs. Raghunadha Rao, the Andhra Pradesh High Court too held on similar lines. Relying on Ramaswamy, J's concurring judgement in Delhi Transport Corporation, MN Rao, J made the following observations, "When multiple opinions are expressed by several judges in their separate but concurring judgments in a case, the judgment rendered by each of the judges is read by the other judges…" And therefore, "Non expression of views by the other learned judges who constituted majority in regard to the judgment under appeal in the Delhi Transport Corporation case must, therefore, be construed as an expression of opinion rendered by the majority with the legal, consequence that it being the law declared by the Supreme Court we are bound by it under Article 141 of the Constitution."

DD Basu, in his commentary on the Constitution of India, states that the correct approach to interpreting a judgement where the judges holding the majority give different opinions, is that when one of the judges expounds the law on a particular matter, but others do not expressly disagree, it must be taken that all the judges concurring in the majority decision agree to that exposition.This rationale may lead us to the conclusion that the judgement of a concurring judge would also be binding.

Some contrary views:

It is now imperative to also take note of judgements where the Courts have taken a view which appears to be contrary to the views expressed in the judgements noted above.

In Raj Narain Singh vs. the Chairman, Patna Administration Committee, Vivian Bose, J examined the judgement of the Supreme Court in, In re Delhi Laws Act, 1912 wherein the Court had laid down the broad principles regarding validity of delegated legislations. All seven judges in this case had delivered separate judgements. Bose, J, perused all the seven viewpoints laid down in the case and took the minimum a particular judge had held and that other judges had added upon, and held that the minimum viewpoint shall become the ratio. He noted, "Because of the elaborate care with which every aspect of the problem was examined in that case, the decision has tended to become diffuse, but if one concentrates on the matters actually decided and forgets for a moment the reasons given, a plain pattern emerges leaving only a narrow margin of doubt for future dispute."

Nariman, J, in the case of Indian Young Lawyers Association vs. State of Kerala, popularly known as the Sabarimala case, takes note of N. Rajagopala Ayyangar, J's, lone concurring view in Syedna Taher Saifuddin Saheb vs. State of Bombay that "social welfare and reform could not affect essential parts of religious practice." Nariman, J, however states that because this view is taken by only judge, and because it did not arise for decision in the said case, it would not be binding and it will have to be tested for its validity in a future case.

In CWT vs. Karan Singh, the validity of the Wealth Tax Act, 1957 was challenged. Interestingly enough, the attention of the court was brought to Union of India vs. H.S. Dhillon, wherein an amendment to the Wealth Tax Act was being scrutinized.Sikri, J, (speaking for himself and two others) had held that it was not necessary to determine under what entry the original Wealth Tax Act fell. Whereas Shelat, J, (for himself and two others) held that it fell under Entry 86, List I.Mitter, J, in his lone view concurred with Sikri, J, in the result. Now, Mitter, J, in his lone view held that the original Wealth Tax act was also under Entry 97, while Shelat, J held that the original act fell under Entry 86, List I. Strong reliance was placed on Mitter J's lone view and it was contended that because Sikri, J, did not disagree with him on this point, it should be held that he agreed with this view. This argument was however, rejected by the court and it was held that because the issue as to under what entry the original Wealth Tax Act fell, did not arise for discussion in the case, the lone view of Mitter, J, cannot be held as ratio and is therefore not binding.

Shayara Bano: A difficult question yet to be answered:

In Shayara Bano vs. Union of India the Supreme Court struck down the practice of Triple Talaq (Talaq-i-biddat) by a 3:2 majority. Nariman, J, speaking for himself and Lalit, J, and Kurian Joseph, J, concurring, are the judges who constitute the majority. However, interestingly, Nariman, J and Kurian Joseph, J have adopted distinct reasonings to reach the same conclusion. In his concurring judgement, Kurian, J, has held that 'what is bad in theology is bad in law as well' and thus triple talaq(talaq-e-biddat) is ultra vires the Constitution. Nariman, J has struck down the said practice on the ground that it is arbitrary and thus violates Article 14. Thus, he agrees in the result with Kurian J, that Triple Talaq is ultra vires the Constitution, however, does not express his views on the reasoning adopted by Kurian, J. It is also necessary to notice that on a fundamental issue, Kurian, J and Nariman, J have infact differed. Kurian, J has held that Triple Talaq is not regulated by the Shariat Act whereas Nariman, J, holds that it is, infact so regulated. This being the case, a question arises as to whether we can consider the reasoning adopted by Kurian, J, to be "law" declared under Article 141 and therefore binding.

Settling the conundrum:

It is noticed that on several occasions the Supreme Court does not express itself through one single judgement, especially while dealing with issues holding great constitutional significance. In Petitions challenging vires of legislations, an attack is made on the legislation on several grounds starting from the legislative competence and including challenges on the anvil of several fundamental rights. A majority judgement may strike down such a statute on one of the several grounds while other concurring judgements may take recourse to other grounds not considered by the single majority judgement or the "main" judgement if we may say so. Sometimes the majority may not comment upon the legislative competence, whereas a single concurring judgement may strike down a law on that ground alone. Further, there are issues which dissenting judgements determine, but upon which majority judgements remain silent. All this leads to serious complications. Those dictums which shape the development of the Constitutional jurisprudence are seldom expressed in one single judgement. Resultantly, subsequent benches are often confronted with difficult questions as to the correct interpretations of these judgements. There are two possible solutions to these problems. The first solution being that the judiciary as an institution should discourage the practice of writing concurring judgements. Secondly, the Court should ordinarily consider only those issues which necessarily need to be decided in order to reach a conclusive determination. The judgement of Nariman, J, in Shayara Bano, is a torchbearer in this regard. Nariman, J struck down Talaq-i-biddat on the ground that it is arbitrary and then did not consider any other grounds on which it was challenged. He also noticed the controversy regarding the question whether "personal law" is covered by Article 13 of the Constitution, and the judgement of the Bombay High Court in Narasu Appa Mali's case which has dealt with this issue. Though he had the chance to settle the controversy once and for all, he chose to not comment on it as the issue was not relevant for the purpose of deciding the case. Similarly, the concurring judgement of Bachawat, J, in the landmark case of Naresh Shridhar Mirajkar vs. State of Maharashtra is also noteworthy. While the majority judgement of Gajendragadkar CJ considered all issues that had arised, including maintainability, Bachawat, J, simply dismissed the Petition on the ground that it was not maintainable. He did not find it necessary to comment much on the merits.

The Supreme Court in Director of Settlements, A.P. v. M.R. Apparao, while dealing with Article 141 of the Constitution held that "A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An "obiter dictum" as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced. So far as constitutional matters are concerned, it is a practice of the Court not to make any pronouncement on points not directly raised for its decision". If this distinction between Ratio decidendi and obiter dicta is to be considered, then debatably so, it may be argued that the views expressed by Chandrachud, J, in Navtej Singh's case on the "sex plus" test of Article 15, are mere obiter. Making such an argument is also possible if the judgement of Vivian Bose J in Raj Narain Singh's case and that of Nariman, J, in Indian Young Lawyers Association's case is to be considered. Also noteworthy is the judgement of Khare CJ, (speaking for the majority) in Islamic Academy of Education. While interpreting the judgement of the 11 judge bench in T.M.A. Pai Foundation, he held that the ratio decidendi of the judgement is to be found out by reading the entire judgement and the same would have to be read in the context of what is set out in the judgment and not in isolation. "By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment".

However, it is not possible to settle this conundrum easily, since there are also other conflicting views on this issue, and which have also been noted above.

In a given case, the Supreme Court may have the opportunity to settle these controversial questions of great significance in the jurisprudence on precedents.

Change in approach is the way forward:

It is desirable, that the practice of writing concurring judgements unless absolutely necessary should be avoided and also that the Court should restrict its judgement to the determination of only those issues which ought to be decided and not unnecessarily delve into issues which may have been avoided. This itself would ensure that the development of the jurisprudence is streamlined. This view is aptly stated by Gajendragadkar, J, in Naresh Mirajkar, "As this Court has frequently emphasised, in dealing with constitutional matters, it is necessary that the decision of the Court should be confined to the narrow points which a particular proceeding raises before it. Often enough, in dealing with the very narrow point raised by a writ petition, wider arguments are urged before the Court; but the Court should always be careful not to cover ground which is strictly not relevant for the purpose of deciding the petition before it. Obiter observations and discussion of problems not directly involved in any proceeding should be avoided by courts in dealing with all matters brought before them; but this requirement becomes almost compulsive when the Court is dealing with constitutional matters". Therefore, it must be made a practice to avoid deliberations over unnecessary issues. Considering the pace at which the rights jurisprudence is being developed by the Supreme Court, it becomes all the more imperative to consider these problems and make an endeavour to avoid them.

Views are personal only.