SC’s Judicial Administration Crisis: What’s the Way Forward?

The problematic functioning and self-inflicted institutional infirmities of the SC has come under much criticism.

The problematic functioning and the self-inflicted institutional infirmities of the Indian Supreme Court have been widely criticised in recent times. This comes at a time when the judiciary’s image as an independent arbiter of the constitution has come to be compromised. One important aspect of this backsliding institutional character has been the blatant violation of the fundamental principles of natural justice.

Even as three successive Chief Justices violated the dictum of nemo judex in causa sua to pronounce decisions on issues concerning their own problematic conduct, the conduct of the other Supreme Court judges has also become a subject of controversy. It is worrisome because since the late 1970s, the Supreme Court has played a key role in sanctifying these principles to a degree that their violation would result in the violation of fundamental rights.

Genesis of the Conundrum

The controversy arose on 8 February 2018, when a three-judge Bench by a 2:1 majority in Indore Development Authority v. Shailendra (Dead) set aside a 2014 decision in Pune Municipal Corporation v. Harakchand Misirmal Solanki (2014) by another three-judge bench. Following Indore Development Authority, when a similar land acquisition matter came up before a three-judge Bench on 21 February 2018 in Haryana v. GD Goenka Tourism Corporation, Justices Madan Lokur and Kurian Joseph raised judicial impropriety concerns. Following the eruption of the controversy, the then CJI constituted a Constitution Bench to decide if the 2018 Bench could have invalidated the earlier decision of the 2014 Bench.

Controversial Constitution of the Bench

Recently, the Chief Justice constituted a new Constitution Bench headed by Justice Arun Mishra to decide the matter. Given that Justice Arun Mishra had delivered one of the judgments under consideration before the Constitution Bench, it was argued by many academics and the Farmers Association, as well by the senior counsel of the respondent that Justice Mishra must recuse from the Bench.

They emphasised that it may be tough to change Justice Mishra’s views as he had given elaborate reasons for declaring the 2014 decision in Pune Municipal Corporation case per incuriam, which indeed shows a strong position towards a particular interpretation.

Reference was made to the observations of Justices Chelameswar and Kurian Joseph in the NJAC judgment that reasonable doubt entertained by a litigant about the partiality of the judge is a ground for recusal. The respondent went on to quote the observation from the 1998 precedent of the Supreme Court in State of West Bengal v S Pathak, wherein the Court noted that: “Bias may be defined as a pre-conceived opinion or a pre-disposition or pre-determination to decide a case or an issue in a particular manner, so much so that such pre-disposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the Judge unable to exercise impartiality in a particular case.”

However, the court refused to entertain the plea for recusal, and delivered a long, reasoned decision for the same, which has been criticised elsewhere for its conceptional flaws.

What ‘Indore Development Authority’ Case Tells Us

In this context, two questions need to be urgently addressed to strengthen its administrative functioning.

First, can an equivalent bench or a larger bench, but with a majority constituting lesser number of judges, overrule the previous decision of the court? With respect to the first part of the question, the position seems to have already been settled by the court in the Central Board of Dawoodi Bohra Community v. State of Maharashtra (2004), where it was held that a bench cannot overrule a precedent set by another bench of equivalent size, but must refer the matter to the Chief Justice for the constitution of a larger bench.

The constant observation of such a rule not only ensures stability in the court’s rulings but also provides the court with necessary flexibility to correct its errors in appropriate cases.

Therefore, ideally speaking, the present controversy should not have arisen if the three-judge bench in Indore Development Authority had referred the matter to the Chief Justice, instead of holding the earlier decision as per incuriam. The problem heightens when we see that in Indore Development Authority, two judges constituting the majority have effectively overruled a decision handed down by bench of three judges speaking unanimously.

It is not a case of presumed bias – having personal or pecuniary interest in the case or with the parties to the case, but one of an interpretational bias. It is the sole duty of the judge to analyse whether a reasonable person would believe that there is a possibility of bias, and if the answer is in the affirmative, then he must decide to recuse from the bench, otherwise, justice may not be delivered.

Concerns for the Integrity of the Judge

What one fails to appreciate here is a parallel concern that the judge has to balance his integrity towards the institution by deciding the cases while keeping all his biases aside. This is a delicate balance indeed, because deciding either way could lead to multiple questions for the judge to answer. And, we believe, it is the second concern that seems to have made the court decide against recusal. In the concluding paragraph of the order, Justice Mishra notes that: “Recusal is not be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse. However, if I recuse, it will be a dereliction of duty, injustice to the system, and to other Judges who are or to adorn the Bench/es in the future.”

One cannot but note how the concerns for the integrity of the judge has overpowered the reasonable person test.

A Better Formation of Benches On the Part of the CJI Required

This further highlights the importance of the administrative duties of the CJI in constituting benches and allocating matters, because a recurrent appearance of such matters weakens the public confidence. Last year, senior advocate Shanti Bhushan had filed a writ petition in the Supreme Court, praying to read the term ‘Chief Justice’ as the Collegium of Judges, similar to what was done in the judges’ appointment cases. Denying the prayer, the court held that the CJI is the master of the roster, and he alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted.

The only solution to these delicate situations is a better formation of Benches on the part of the CJI.

Considering that Justice Mishra was part of Indore Development Authority, the CJI must have chosen someone else from a huge pack of 34 Judges to sit on the Constitution Bench. It would have satisfied the reasonable person test without putting a Judge in a situation where he has to go through a recusal hearing.

(Prannv Dhawan is a 3rd-year law student at National Law School of India University, Bangalore (India). He leads the Law and Society Committee at the University and can be contacted at [e-mail].

Anmol Jain is a penultimate year Constitutional Law Honours student at National Law University, Jodhpur (India). He was the Editor-in-Chief of Comparative Constitutional Law and Administrative Law Quarterly. He can be contacted at [e-mail].

This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses, nor is responsible for them.)