Practicing lawyer, New Delhi
The Indian Supreme Court has long been recognised for judicial creativity. The development of its public interest litigation docket has been characterised by a disavowal of legal forms such as rules of standing and strict evidentiary standards, in favour of a more substantive approach to adjudication, which focuses on just outcomes in an unequal society. While this has allowed the Court to be flexible on questions involving both the scope of constitutional rights, and on the nature of remedies that it can fashion to address questions of substantive injustice, it has – inevitably – had an impact on the stability and consistency of legal doctrine.
The gradual weakening of the centripetal force of precedent has not attracted too much attention in scholarly writings about the Indian Supreme Court, perhaps for the reason that it has been – implicitly – accepted as the necessary price to pay for granting the Court the freedom to pursue substantive justice. Recent events, however, have made it clear that this is an issue that can no longer be ignored, and deserves at least as much academic scrutiny as the Court’s public interest litigation jurisprudence.
The reason for this stems from another unique, institutional feature of the Court. Because of its pending workload and a massive docket, the Indian Supreme Court does not sit en banc, or even in benches that, at least, make up a substantial proportion of its total strength. At present, the Court has twenty-four judges (out of a sanctioned strength of thirty-one) who generally sit in pairs of two or three. The Supreme Court, therefore, is a polyvocal Court: at any given time, it speaks not with one voice, but with twelve or thirteen different voices. This, naturally, is a recipe for judicial inconsistency – a recipe that is further seasoned by the undermining of precedent as a constraining force.
The combination of these institutional features reached a point of crisis in February. In 2013, India passed a new land acquisition law, designed to replace its 19th-century predecessor root and branch. The law upended many of the features of the predecessor legislation, which had been more or less holding the field since the 19th century. It was controversial, both politically, and in the courts. One major flashpoint was section 24 of the 2013 Act. According to this section, if in land acquisition proceedings, compensation had not been deposited in the accounts of the beneficiaries for a period of five years from the date of the award, the proceedings would lapse, and the land be returned to the owners.
In the courts, the controversy turned on what the word “deposit” meant. In 2014, in a case called Pune Municipal Corporation, three judges of the Supreme Court held that the section required that the compensation, at the very least, be deposited in Court – and not simply in the government treasury. Over the next three years, at least seventeen reported judgments of the Supreme Court – and more than a thousand judgments of various state High Courts – followed this view in adjudicating land acquisition cases. In February 2018, however, another three-judge bench of the Supreme Court disagreed (in Indore Development Authority), holding that it was sufficient for the money to be paid into the treasury – and that consequently, in a very large number of cases, the government was no longer obligated to return the land it had acquired under Pune Municipal Corporation’s interpretation. Ordinarily, being bound by the judgment of a coordinate bench, the three judges would have had to record their disagreement, and request the Chief Justice to constitute a larger bench (of five judges) to resolve the difference. However, two of the three judges in Indore Development Authority decided that they did not need to do that, because Pune Municipal Corporation was per incuriam, and therefore not binding authority. Interestingly, while the third judge agreed with the other two on the interpretation of section 24, he refused to hold Pune Municipal Corporation to be per incuriam. The reason for this is obvious: in common law, the doctrine of per incuriam sets a judgment at naught, and is therefore used very sparingly. Its invocation is limited to situations where a judgment has ignored a statute that is binding upon it, or a prior judicial authority that is likewise binding. As a matter of fact, the two judges in Indore Development Authority were unable to demonstrate this; their strongest point was that Pune Municipal Corporation had failed to consider some rules that had been laid down under the old Land Acquisition Act.
Immediately after handing down the judgment in Indore Development Authority, Justice Arun Mishra, the judge who had written the opinion, had a large number of pending cases “listed” before him, and began to dispose of them swiftly, in line with his new interpretation of section 24 (tens of cases were disposed of in a single sitting, clocking in at about an hour). Meanwhile, Indore Development Authority was cited in a hearing that was in progress before (yet another) three-judge bench of the Supreme Court. That bench convened a special sitting that same afternoon, where it was strenuously argued that Justice Mishra’s bench was wrong to wipe out a coordinate bench decision – and along with that, the multiple other judgments that had relied upon it – by such a cavalier application of the doctrine of per incuriam. A reference to five judges was requested. The three-judge bench indicated that it would consider this, and in the meantime, requested other benches not to proceed with pending cases under section 24.
However, before the three-judge bench could hold a further hearing to determine the question of reference, the two judges who had held Pune Municipal Corporation to be per incuriam (and who were now sitting on different benches) were shown this order of the three-judge bench, and they promptly referred the case to the Chief Justice. The Chief Justice, acting in his power as the “master of the roster”, has placed the case before a five-judge bench (including himself), which is due to hear the case later this summer.
While this may read like a badly-plotted thriller, it reveals the combination of a polyvocal Court and an incremental devaluation of the legal forms that guarantee continuity over time, has the potential to cause substantial chaos. The reason for this is simple: a greater flexibility to do substantive justice necessarily brings with it a greater freedom to implement judicial ideologies. In a polyvocal Court, on any contentious issue, a clash of ideologies is virtually inevitable. As the yet-unresolved land acquisition fiasco shows, this can very quickly escalate into duelling benches that can almost come to the point of confronting each other.
For this reason, in the months and years to come, these structural features – and faultlines – of the Indian Supreme Court, that are both of recent vintage, and also quite without precedent when it comes to constitutional courts in liberal democracies – needs to be studied closely and rigorously by comparative constitutional scholars, and students of the Court.
Gautam Bhatia is a practicing lawyer in New Delhi, teaches visiting courses at the National University of Juridical Sciences and runs the Indian Constitutional Law and Philosophy Blog.