Centre for Law and Policy Research
Editors' Note: This post does not formally form part of the recent Blog Symposium on 'Crisis at the Supreme Court of India?'. However, it may be read as a companion piece to the posts in that Symposium.
On 7 May 2018, the Supreme Court of India transferred a trial for the rape and murder of an 8-year-old girl from Kathua in Jammu and Kashmir to Pathankot in Punjab. Although the Supreme Court has the authority to transfer a trial from one State to another, Section 25 of the CPC (Civil Procedure Code) and Section 406 of CrPC (Criminal Procedure Code) – which allows for the transfer of a trial – does not extend to Jammu and Kashmir. In addition, Article 139A of the Constitution, which allows the Supreme Court to transfer a trial to another State, does not extend to Jammu and Kashmir. Yet, despite the lack of legal authority, the Court transferred the trial from Kathua to Punjab.
The rape of a minor girl is as horrific as humanity can sink and it might seem bizarre to call out the apex court for deviation from its public reasoning function. But for the sake of institutional health, we need to think through reasons and not passion.
It is in this context that the petition submitted by Ms Indira Jaising, the counsel for the minor girl, which placed strong reliance on the Supreme Court’s 5-Judge decision of 2016 in the Anita Khuswaha v Pushap Sudan case. needs examination. The 2016 judgment allowed transfer of cases from Jammu and Kashmir to other States despite the constitutional and statutory bar under Article 139A and CPC and CrPC provisions. The top court held that the Court has plenary power to do “complete justice” under Article 142 and that this includes even transferring cases outside Jammu and Kashmir to uphold the right of ‘access to justice’, recognised as a (non-explicit) fundamental right. This precedent, the Anita Kushwaha case, which is being relied upon is underpinned by weak reasoning and needs re-examination.
The Anita Kushwaha judgment is Wrong: 4 Reasons
The reasoning in Anita Kushwaha was weak for the following reasons. First, in allowing the transfer of cases from Jammu and Kashmir despite an explicit statutory and constitutional bar, the Court ‘supplanted’ the law and not ‘supplemented’ it. The over-riding of the statutory and constitutional bar violates the separation of powers and simply amounts to judicial lawmaking.
Secondly, in upholding the Article 21 fundamental right of “access to justice”, the Court resorted to “extraordinary power” rather than delving into the constitutionality of statutory provisions which violate fundamental rights. The appropriate remedy for protecting a fundamental right is to decide on the constitutionality of statutory provisions or to provide guidelines, not to circumventing legislation through Article 142 jurisprudence. The Court’s appreciation of the fundamental right should not be discretionary and judge-centric, which is the flip-side of resorting to “extraordinary” power to do justice.
Thirdly, some commentators have suggested that recourse to the ‘extraordinary power’ to pass any direction under Art 142 remedy should be confirmed by a constitution bench so that the power is not unchecked. Anita Kushwaha itself, being a constitution bench decision, resorted to expedient and easy recourse under Article 142 and will mark a dangerous precedent.
Lastly, it is necessary to examine what qualifies as ‘justice’ by courts? It not precedent-driven, public reasoning application of law ‘justice’? There should be no trade-off with ‘public reasoning’ for desirable outcomes.
The Need for a ‘Broader and Deeper’ Test of Public Reasoning: For an ‘Accountable’ Juristocracy
The separation of powers is a fiction in India. The Supreme Court has expanded its jurisdiction to the point where nothing escapes its attention – from monitoring government agencies, appointing SIT, Special Commissioners for enforcing Socio-Economic Rights.
The vast expanse of judicial power is justified under the cloak of legality – framing legal issues, use of interpretative tools, resorting to judicial precedent, comparative jurisprudence – but the legal forms are essentially empty of content. However, in resorting to extraordinary power either by triggering “suo-moto” jurisdiction through public interest litigation (PIL) or its plenary power to do “complete justice” under Article 142 of the Constitution, even the low threshold of fidelity to legal cloak is not met. This pattern must be called out and Anita Kushwaha was one such case.
As Pratap Mehta has argued, the rise of Indian ‘juristocracy’ (i..e, government by judges) is sui-generis. There is a vast expansion in the Court’s jurisdiction but its intervention is selective. Mehta frames this as a “conflict-management” approach where, despite the wide expansion of jurisdiction, the Court’s ability to intervene is contingent on public sentiment or (fear of) backlash by a government enjoying a transient majority.
However, Indian juristocracy is curiously dangerous – as the rise of the unelected institution is coupled with discretionary, convenient interventions with no accountability for its ‘misses’. The Court has been expanding its power on external indices, such as public opinion or executive apathy, while its internal indices of authority – public reasoning, access to justice, and transparency – remains broken. The only antidote to “unaccountable juristocracy” is anchoring a “broader and deeper” commitment to public reasoning function – an inherent judicial index.
The ‘broader’ public reasoning would entail giving reasons at various stages of court proceedings – from triggering of suo-moto jurisdiction to interim orders passed during oral hearings to judgment. Any deviation from the normative process has to be justified through reasoning.
For instance, in its 7th May order, the Court should have weighed on the dichotomy of transferring the trial but not handing over the investigation to the Central Bureau of Investigation (CBI). Surely ‘fair investigation’ and ‘fair hearing’ together form part of the fair trial? The Court did not also weigh on the special status of Jammu and Kashmir which placed an explicit constitutional and statutory bar on the transfer of cases. A ‘broader’ public reason would account for these questions before shifting the trial. A reasoned court is one which does not circumvent key provisions or precedents for a desirable or even right outcome.
A ‘deeper’ public reason exercise calls for anchoring the ‘judgment’ in explicit reasons for resorting to ‘extraordinary power’. Mr. K.K. Venugopal has suggested that exercising extraordinary power under Article 142 of the Constitution should be confirmed by a constitutional bench so that there is a collective application of judicial minds. This safeguard can be one instance of ‘deeper’ public reasoning so that court’s jurisdiction does not become ‘discretionary’ but meet the benchmark for being truly ‘extraordinary’.
Justice should be done for the 8-year-old, but the public outcry and demand for justice should not become another instance of expansion in judicial powers without attendant accountability. There is a great temptation of engaging with outcomes and immediate sense of ‘justice’, but the rise of unaccountable juristocracy can turn against us – by applying principles selectively and substituting ‘certainty’ with convenient interventions.
We should remember that what travels as precedent is not the factual matrix but the reasoning of the Court. If unchecked, then the court tomorrow can use this extraordinary power to curtail our rights in pursuit of a ‘virtue’ deemed more desirable by the judges.