Procedural confusion and judicial indiscipline underline crisis afflicting the judiciary

Dr BR Ambedkar said, “The Chief Justice of the Supreme Court is a man with all the failings, all the sentiments and all the prejudices which we as common people have”. The seven-page explosive letter by the four judges to the Chief Justice is only the tip of the iceberg when it comes to the challenges that lie before the judiciary, which were in fact anticipated by makers of our Constitution. The two-month-old letter which has been made public through media highlighted that even if the Chief Justice is the ‘Master of the Roster’, he cannot assign cases to selective benches in an arbitrary manner. On being asked repeatedly, next in line to the CJI, Justice Gogoi confirmed to the journalists that the press conference was prompted by issues surrounding the death of special CBI Judge BH Loya. The Bombay High Court had taken up the matter of Loya’s death, which is now coming up for hearing on 23rd January. Once the High Court is seized of the matter, the Supreme Court (SC) should not have entertained the Loya matter for which objections were also raised by Senior Advocate Dushyant Dave. 

The issue of finalization of Memorandum of Procedure (MoP) too figures in the letter, but the genesis of the current crisis is that the judiciary failed to maintain its singularity. It has earlier been remarked by Vikas Singh, Senior Advocate and now President of SC Bar Association (SCBA) that the apex court is acting as 13 supreme judges but not as one Supreme Court. The same is also clear from the medical case scam wherein second senior most judge directed for matter to be heard by a Constitution Bench whereas the other bench dismissed it on maintainability. It may seem trivial but the functioning of a constitutional authority sans any written procedure is surely a sign of arbitrariness and failure. 

The apex court’s recent order on revisiting its judgment on decriminalisation of homosexuality is yet another instance, which has brought clarity and confusion. 

Substantively, it appears that the apex court has prima facie acknowledged the change in societal mindset and is eager to adjudicate upon the matter in a new age where privacy is now a fundamental right. Procedurally, the recent order could be another instance of judicial indiscipline, which has become all too rampant in our times. It is important to note that SC in 2013 had allowed an appeal, which was against the decision of Delhi High Court to read down the Section 377 of the Indian Penal Code. Further, the review petition filed against the allowing of appeal was also dismissed in 2014 by the SC. In a rare move, the SC agreed to hear the curative petition in open court and subsequently sent the matter before the Constitution Bench. 

In April 2016, five individuals, in their own right, challenged the criminalisation of homosexuality. They claimed distinction from the earlier scenario as their individual fundamental rights are violated. The SC did not even issue notice on the petition filed by five individuals for last two years, but now the same has been referred by the Chief Justice Bench to the larger bench. Remarkably, the bench which referred the matter to the larger bench is larger than the one that allowed the appeal and dismissed review in 2013 and 2014, but smaller than the Constitution Bench that will hear the curative petition. Does it mean that same Constitution Bench will now hear the curative petition and also the individual writ petitions? How can curative petition and writ petition be clubbed together, or the present referral has rendered the curative petition infructuous? It would have been proper if the court had been clearer with what it wanted to do. It could not form the Constitution Bench for the curative petition in about two years, but now wants to do so on the individual writs. By its very simple referral order, the Supreme Court has created a terrible mess in the procedure, a fact which will entail the expenditure of taxpayer’s money on days that will get wasted on the subject, which comes within the exclusive domain of legislature. 

In any case, the right to privacy judgment of 2017 cannot be used in a curative petition as there existed no such right when the review was dismissed. The observations in the right to privacy case on homosexuality are obiter which are not binding in arriving at a decision in any matter. Any attempt to espouse a cause using such observations as a bedrock will be on a very loose footing. Importantly, the SC while refusing to decriminalise homosexuality in 2013 had stated that it is for Parliament to do the same. The court had also noted the failure of Parliament to recognize the recommendations made in the 172nd Report of the Law Commission, which had suggested changes to the Section 377 of the IPC. 

The Indian constitutional structure is based on Montesquieu’s three pillars of democracy and separation of powers. However, off late, the three pillars have eaten into each other’s domains.  It is true that the apex court has the power to declare a law unconstitutional but such powers should be used very carefully. It is for Parliament to reflect the true societal change, as it has the constitutional mandate to voice the opinion of the masses. Lack of action on this front and failure of Shashi Tharoor’s Private Member Bill in the Parliament shows that the political class is unanimous in keeping the status quo. If public sentiment in favour of homosexuality is so strong, why do the State Legislatures not amend the IPC as per assent of the President? Recent incidents show that all is not well in the judiciary itself. Any attempt to allow the judiciary to legislate would be akin to letting loose a bull in a china shop.

There is complete clarity about the failure of our institutions, it is the confusion over future that agonizes India.

The author is a Supreme Court lawyer and an expert in Constitutional affairs. Views expressed are personal