Reverses in a forward march

Large benches are not the norm for the Supreme Court these days. The Constitution of India emphatically provides that cases involving a substantial question of law like the interpretation of the Constitution, are to be decided by a bench of not less than five judges.

However, the practice of constituting a smaller bench is so rampant that in spite of the clear constitutional mandate, several smaller benches (two and three judge’s bench) have interpreted and substantially changed the provisions of the Constitution.

During the early decades, Constitution benches were set up for over 100 cases in a decade, but it reduced down drastically to around 20 in the last three decades.

While the decision of the Chief Justice of India (CJI)-led bench of Supreme Court that all the petitions challenging abrogation of the special status of Jammu and Kashmir under Article 370 will be heard by a Constitution bench appears to be the right approach, there are several grey areas.

It has been a matter of court practice that if past decisions of Constitution benches are going to be re-examined, then the later Constitution benches have to be of greater size than the previous ones.

Since Article 370 and Article 35(A) have been already interpreted by Constitutional benches, which has now been overturned by the Union government, there was no apparent reason for not constituting a larger bench.

However, the Supreme Court has to devise a mechanism where after filing the petition, it can be examined whether it requires to be heard by a Constitution bench or an even larger bench.

Hearing of a matter by the division bench and then referring it to a larger bench is not a healthy convention. The practice, however, reveals that matters involving constitutional interpretations have been given to smaller benches after wasting so much of judicial time, and then deciding that it should be referred to a larger bench.

However, surprisingly the bench headed by the CJI, while referring the matter to the Constitution bench, postponed its listing to the month of October. When a matter is referred to a larger bench, it should have been done with immediate effect. Commencement of hearing in the first week of October apparently on the ground that it will distract the schedule of Ayodhya hearing is not a plausible justification. A separate Constitution bench led by Justice N V Ramana could have been set up, considering the fact that CJI and Justice Sharad Arvind Bobde were busy in the Ayodhya hearing.

This would have also been justified for the reason that the CJI will be superannuating in two months’ time. So, postponement of hearing to the month of October was on rather fragile grounds and hence not judicious. This would have justified the stand of the present CJI against his predecessor that all the constitutional matters were confined to CJI-led bench only.

In fact, there is no constitutional mandate that the Chief Justice of India must be present in all the constitution benches. The CJI, as master of the roster, has to make efforts not only to strike a vigorous balance of senior and junior judges in the Bench but also between disposal of cases, maintaining the integrity, independence of the institution and the quality of justice.

Or if the CJI, like his predecessor, wanted to be part of this case that has political ramifications, then instead of postponing this matter, he should have deferred the hearing of Ayodhya dispute for some time, instead of the present case, because this case would have serious implications if not decided in a specific time period.

However, the judicial attitude does not seem very positive. It refrained from examining legal and constitutional challenges posed to the Centre’s decision on Article 370 that changed the constitutional status of Jammu and Kashmir, including the habeas corpus petitions and communication shutdown.

On the contrary, the court pointed out that the petitions suffer from serious defects and have no meaning. The Court even decided to give the government more time to review the situation after the authorities said that the restrictions would be eased soon.

Considering the fact some more petitions were filed, the Court finally decided to hear it out but listed it in October. The judicial approach of postponement will predominantly help the Union government to implement its strategy.

Assuming that the Supreme Court is serious about the petitions challenging abrogation of special status of J&K, splitting the state into two UTs, media restrictions and information blackout in the state, then the question will certainly arise whether it will be capable of reinstating the status quo ante after three-four years, if it then finds the Centre’s decision unconstitutional.

What will be the validity of the acts done, orders passed and laws, if any, made during the period of pendency of this case₣ I find it difficult to accept this proposition, as it is plagued with grave incongruities and will result in operational disharmony.

Justice should not only be done but should manifestly and undoubtedly be seen to be done. This creates the perception and builds the confidence of the people in the institution. And if the judiciary’s reputation for fairness and justice is shattered by the thought that it had been influenced by the other party, it would destroy the institution and it would not really matter whether it did, in fact, favour one side unethically.

- Author is the registrar (I/C), National Law University Odisha, Cuttack