Supreme Court Structural and Jurisprudential Problems

The First V.R. Krishna Iyer Memorial National Law Lecture delivered by Hon'ble Justice J.Chelameshwar on November 28, 2015 at Kochi.

Ladies and Gentlemen, I am before you overwhelmed by emotions, which are conflicting. It is a singular honour to be called upon to deliver the ‘First V.R. Krishna Iyer Memorial Law Lecture.’ But, at the same time, the very fact that I have to come back for a memorial lecture within a year after attending Justice Iyer’s 100th Birthday Celebrations stirs in me conflicting emotions. That Justice Iyer is no more with us makes me sad in spite of the knowledge that everything in this universe is transient. However, a 100-year life span is an extra-ordinary gift of nature to a very few human beings. Justice Iyer was one of them. May be he transited from ASAT to SAT.

To make any attempt to extol the great accomplishments of the multifaceted personality of Justice Iyer would be a reckless adventure for somebody like me. To the best of my knowledge, no other judicial personage received so much of public accolade, attention, and print space as much as Justice Iyer had. A lawyer, legislator, member of the Law Commission and Judge of the Supreme Court—all rolled into one.

Justice Iyer led an eventful life. Whatever assignment he took up, he pursued it with passion and zeal. There is a strange belief in the country that those who are associated with active politics shall not hold— or at least ill-suited to hold—a judicial office. The world of law suffers some judges while they are in office; it remembers some awhile for the good work they have done; it fondly remembers only a few for a long time because of their contribution to the march of law. For they leave an indelible impression on the law and the lives. Justice Iyer belonged to the last class. He was not an ordinary Judge. He gave a new orientation to the constitutional adjudication. He had a people-oriented view of the law. Compassion for fellow human beings was his mantra and he had it in abundance.

Even 35 years after he demitted office, his voice was heard with attention and reverence by lawyers, judges and civil society. He spoke eloquently on many issues most critical to the governors of this country. I was thrilled to see the enthusiasm a man had at 95 to bring about a change in this country; unbelievably, he had a role to play till his last breath.

I first met Justice Iyer sometime in 1983/84 at the residence of late Shri N.T. Rama Rao, the then Chief Minister of Andhra Pradesh. I was only a lawyer of seven-year standing not deserving any specific attention of Justice Iyer. The second time I met him was a week after I took over as the Chief Justice of Kerala in 2010. In the next 18 months, I had some pleasant interactions with Justice Iyer. One evening, he suddenly dropped into the Chief Justice’s residence while he was taking his evening walk. During a long conversation that lasted an hour, I offered a cup of coffee to Justice Iyer. He relished the coffee. There were a couple of other occasions when he dropped in only for having a cup of coffee. According to Justice Iyer, the coffee made at my residence was delectable. I still remember how he lamented that good coffee is no longer available in Cochin.

He walked into the 1 st court while the Kerala High Court was bidding farewell to me on the eve of my elevation to the Supreme Court—a gesture, as I was informed by my colleagues, Justice Iyer made very rarely. I was overwhelmed. When he learnt that I would have a tenure of about seven years in the Supreme Court, he reminiscently smiled and told me that he had about the same. And it is a good tenure to make a mark personally and contribute to the march of law, too.

The Supreme Court of India is a great institution designed to serve as a protector of liberties to the people and also as an adjudicator at the highest level of the disputes between private parties. The role of the court as a protector of liberties of the people is guaranteed, and the role as an adjudicator of the private disputes is discretionary and restricted by the text of the constitution. The mixing of these two roles in the highest body, in my opinion, is the starting point of some problems.

Though it is a topic essentially steeped in the wisdom and the realm of the Constitution, the experience gained from these 65 years of working of the Supreme Court makes us realise the structural soundness of the enduring edifice: The Apex Court. Nevertheless, certain practices adopted by the court as an institution, in my opinion, resulted in avoidable problems. I thought an examination of these aspects would be an appropriate topic for today's programme. After all, the man in whose memory this programme is organised is one of the most eminent, ebullient personalities belonging to that institution.

The framers of the Constitution designed the Supreme Court as a successor to the Privy Council. They had a choice. They chose a federal model in so far as the Executive and the Legislature are concerned. The Supreme Court described it as a co-operative federalism. It is beyond today's topic to elaborate on that. Suffice it to say that it is federal, in contradistinction to a unitary form of Government. Coming to the judicial form, I may observe that it was made less than quasi-federal; it is almost unitary in character.

The establishment and organisation of the constitutional courts are essentially within the purview of the Parliament. The process of appointment, the service conditions, and the determination of the appointment of a Judge of the constitutional court in this county are predominantly in the hands of the federal executive and the legislature. The framers of the Constitution did not choose the model of the American Supreme Court for reasons best known to them. Perhaps a great deal of research is required to know what philosophical—in the political sense—reasons prompted them to choose the colonial model. I say colonial because the Privy Council was the highest appellate body hearing appeals from the colonies of the erstwhile British Empire on all sorts of matters: civil, criminal, etc. It had no structural limitations on its jurisdiction so long as the august body was satisfied that the demands of justice required its attention.

On the other hand, the American Supreme Court has a limited jurisdiction essentially adjudicating federal issues and problems involving interpretation of the federal constitution. Interpretation of the laws of the various federal units including their constitutions is not part of the business of the American Supreme Court unless an element of the federal constitution is also intermixed in such disputes. It is designed to be the ultimate federal ‘lawgiver’, but not a court dispensing justice between individual litigants.

Our Constitution sought to establish Supreme Court with a much wider jurisdiction. Under Article 131, the Supreme Court has original jurisdiction to the exclusion of any other Courts in dealing with the various classes of disputes enumerated thereunder. Under Article 132, 133 and 134 the Supreme Court is vested with appellate jurisdiction against any judgment, decree or final orders of any High Court in the territory of India, whether in civil, criminal, or other proceedings. It is, of course, subject to certain procedural limitations and conditions specified under those Articles. Article 136 confers on the Supreme Court a discretionary jurisdiction to entertain appeals from any court or tribunal in the territory of India; it borders, without exaggeration, on boundless jurisdiction on all adjudicatory aspects. Interestingly, prior to the 44th Amendment to the Constitution in 1979, the process of obtaining a certificate from the High Court was conditioned upon an application from the party seeking such a certificate. By the 44th Amendment, Article 134A was introduced in the Constitution, by which the High Courts were authorised to grant certificates on their own motion or even on an oral application by the aggrieved party. Still hardly anybody ever attempted to obtain a certificate.

An attempt was made by introducing two Articles, i.e., Articles 131A and 226A, through the 42nd Amendment to create parallel jurisdictions both in the Supreme Court and the High Courts to examine the constitutional validity of the laws of the Parliament as well as the laws of the States, the federal constituents. In my opinion, the scheme ought to be welcomed for various reasons, which I shall discuss later. Unfortunately, though, the time of the said amendment coincided with the turbulent period of the internal emergency. And the two Articles mentioned above were seen as part of a larger attempt by the Parliament to curtail the jurisdiction of the courts. Therefore, the changes brought about by the Constitution 42nd Amendment were undone by the Constitution 43rd Amendment Act, 1977—a classic case of “throwing the baby out with the bathwater”.

Under Article 124, the Supreme Court was initially designed to be a court with a judge strength of Chief Justice + 7, which as on today has become Chief Justice + 30. Entry 77 of List I to the Seventh Schedule indicates that the Parliament in exercise of its powers under Article 246(1) makes laws with respect to the “constitution, organization, jurisdiction and powers” of the Supreme Court, etc. The exact contours of the said entry and the scope of Parliament’s powers have never been critically examined by the Supreme Court so far.

The American Supreme Court sits en banc to hear every matter it takes up for consideration. In the absence of any statute dealing with that aspect of the matter, our Supreme Court for the past 65 years has adhered to the practice of sitting in panels, i.e., divisions.

The American Supreme Court sits en banc to hear every matter it takes up for consideration. In the absence of any statute dealing with that aspect of the matter, our Supreme Court for the past 65 years has adhered to the practice of sitting in panels, i.e., divisions.

The jurisdiction of the Supreme Court under Article 136 is the residuary jurisdiction vested in the Supreme Court, which was meant for dealing with exceptional situations where, in the opinion of the Supreme Court, a grave miscarriage of justice has occurred. Though it is not expressly stated, the jurisdiction under Article 136 was understood in the initial days of the Republic to be exercised by the Supreme Court in deserving cases where the party invoking its jurisdiction had failed to secure the certificate contemplated under Articles 132 to 134 from the High Court.

Unfortunately, over a period, the jurisdiction under Article 136 has become the predominant jurisdiction of the Supreme Court. One has rarely seen in the last three decades anybody making an attempt to secure a certificate from the High Court.

The design of the Supreme Court under the Constitution, to my mind, indicates the aspiration of the framers of the Constitution for achieving “perfect justice”. But in the process, such vast jurisdiction has created other problems: huge pendency before the Supreme Court; uncertainty in law, which in turn has led to more litigation at various levels. The undesirable spin off is the multi-tiered—three, four, or even five tiers—judicial scrutiny of a cause making the judicial process indecently time consuming. Almost interminable is the adjudicatory process spanning more than one decade, and at times two to three decades. In some cases, not rarely though, it is even more than that.

Such time frames are tremendously advantageous to unscrupulous litigants with weak or no case; it is, however, to the chagrin of their opponents. One needs to hazard no guess on that count.

Compounding the problem is the practice of the Supreme Court’s sitting in divisions. Particularly on any proposition of law, authorities can be cited from the Supreme Court supporting the case of parties with conflicting interests. Such a practice is inherent in the very structure and practice of the Court sitting in Benches. Clever lawyers, more often than not, make emotional appeals to the 'good conscience' of the Judges— argumentum ad hominem—so as to get the Bench decide cases on ad hoc principles. Unfortunately, every such judgment is cited as a precedent before the High Courts and other courts in the country creating greater uncertainty in the legal position, which in turn results in more and more appeals to the higher courts up to the Supreme Court. The pressure of pendency increases by such a process. The time available for the judges to independently examine the legal principles de hors the assistance rendered at the Bar diminishes by the day. All this creates a vicious circle contributing to the explosion of the dockets and diminution of the quality of adjudication at the highest court level, though.

There are about 150 matters referred to the Constitution Benches on the count that there are conflicting views expressed by different Benches of the Supreme Court at some point of time or another: a situation that is attributable—if not solely, at least pre-dominantly—to the practice of the Supreme Court sitting in Benches. If the Court were to sit as one unit, this problem would not arise. Even if an earlier judgment of the Supreme Court is found to be erroneous, the same can be corrected at a subsequent point of time, and the earlier judgment overruled. It can never be cited thereafter as a precedent before the Supreme Court or any other court in the country. However, in the present system, until expressly overruled by a larger Bench at a subsequent point of time, the conflicting views rendered earlier by the Supreme Court will continue to be cited before the High Courts and the lower courts leading to the proliferation of litigation.

Take for example the case of the interpretation of Entry 54 of the First Schedule and Entry 23 and 49 of the Second List of the Seventh Schedule. There are half a dozen Constitution Bench judgments and some other judgments of Division Benches dealing with the scope of the entries. The exact legal position has not been settled, and a reference before a larger Bench as to the legal character of the levy of “Royalty” on mining activities awaits adjudication; the result is uncertainty as regards whether royalty is a tax or not.

The wisdom of the repealed Articles 131A and 226A can be assessed by taking one example of the recent past. When the definition of the expression “non-performing asset” occurring in the SARFAESI Act was amended by the Parliament, the amendment came to be challenged in various High Courts by various persons against whom the proceedings under the SARFAESI Act were initiated. The Madras High Court upheld the constitutionality of the said amendment while the Gujarat High Court took a contrary view. Eventually, the matter landed up in the Supreme Court as it necessarily had to. Because, in the normal circumstances, a law made by the Parliament for the entire country cannot be invalid in one State and valid in some other State. Eventually, the Supreme Court has held the said amendment to be valid. But, in the process, a considerable amount of judicial time of various High Courts was spent, not to count the time spent by the Supreme Court. If Articles 131A and 226A were to remain on the statute book, this problem could have been avoided saving a lot of judicial time of the various High Courts that could have been otherwise spent adjudicating other matters.

The concept of ratio decidendi is becoming almost a forgotten principles of jurisprudence. Almost 40 years back, my teacher late Prof. B.S. Murthy on some occasion made a comment that the days of 'ratio decidendi' are gone and the days of 'dicta decidendi' have come. Though, I really did not understand the implication of the statement then, over the next 40 years, I have fully understood the statement. Observations are liberally made even if they are really not necessary to decide the issue before the Court. Such observations are liberally relied upon by the members of the Bar when it suits their convenience in subsequent cases.

Regrettably, the jurisprudential principles of what constitute the ratio decidendi of a judgment are completely ignored leading to more and more uncertainty in the law. A case in point is that I have at random examined 29 judgments of the Supreme Court on the issue whether obiter dictum has any binding effect. I have, unsurprisingly, found the precedential pattern of the judgments as follows: Obiter dictum of even larger Benches does not bind-17; it binds-3; it is normally expected to be obeyed-3; it does not bind, but persuades-4; a two-Judge Bench cannot hold a judgment of three-Judge Bench obiter or per in curiam-1; depends on the nature and scope of obiter-1. It is well to remember that the composition of the Benches in those cases is varied from Constitution Bench to two-Judge Bench.

The original practice of the Supreme Court’s examining fresh cases and granting leave in deserving cases in the exercise of its jurisdiction under Article 136 is almost now a matter of history. Given huge pendency and the framework of the Supreme Court Rules, the appeals will take a few years for processing once leave is granted. No counsel is happy if a Judge is inclined to grant leave. A very diplomatic request is made at the Bar not to grant leave but hear the matter at the motion stage and dispose it of. In the process, everybody wants an early date of hearing in his case, which virtually becomes an impossibility

To sign off, I remind myself that judicial adjudication, more particularly the processual jurisprudence, is not immutable. Nor has any particular process of adjudication under any jurisdiction across the continents has attained the pinnacle of perfection. What is good for the USA or the UK need not necessarily be good for us. That said, as the backlog increases, the societal and institutional pressures for speedier justice are relentless. As a result, our constant endeavour for speedy justice is, indeed, a churning process and a learning one, too. Trial and error it must have, but only with the objective of trying to err fewer and fewer times. Our ceaseless journey towards equitable, expeditious dispensation of justice augurs well for the institution, for the nation, and for the exalted entity of the whole system: the Common Man.

I fervently hope that the enlightened soul of Shri Justice Krishna Iyer, the eminent jurist of the past century, will guide us in our endeavour. Emulating him is the only tribute we can pay to him.