Judges and their judgements: the law must be certain

Law must be certain and predictable. If law is uncertain, it will lead to social anomie and breakdown. It does not mean that judges do not have freedom to interpret and analyse. Law is enacted to give finality to the subject concerned. Nevertheless, confusion persists, which is removed by the court, and the ultimate finality comes from the Supreme Court, which lays down the law by way of interpretation and filling in the gaps, if any. But if the apex court falters and speaks in different voices, it is a sure recipe for disaster.

Unfortunately, this is what is happening as different benches of the apex court are taking contradictory stands. On February 21, a three-judge bench headed by Justice Madan B Lokur refused to follow the decision delivered on February 8 by another three-judge bench headed by Justice Arun Mishra in a land acquisition case. The latter bench had overruled a 2014 verdict given by another three-judge bench headed by Justice RM Lodha in Pune Municipal Corporation v. Harakchand Misrimal Solanki, terming it as per incuriam (decided in ignorance of law).

Justice Lokur was part of the three-judge bench in the Pune Municipal Corporation case. It appears as if the two judges give each other the pip and that influences their decisions. Justice Lokur was among the four judges who in January blew the whistle on Chief Justice of India Dipak Misra for assigning sensitive cases to Justice 

Arun Mishra. Now, two two-judge benches have referred the matter to the CJI for constitution of a larger bench to give it finality.

The court cannot be a "theatre of the absurd." Courts remove absurdity by injecting purpose and bringing in clarity. The erosion of judicial collectivism is because of the fact that there is not one Supreme Court but as many as the number of judges or at least the number of benches, which is 13 at the moment. Judgements or orders passed by different benches are divergent, lacking even a semblance of uniformity based on law.

Justice Felix Frankfurter of the US Supreme Court had anticipated this problem when he advised BN Rau, the constitutional adviser to the Constituent Assembly, that the apex court of the country should sit as the full court, not in divisions.

In the initial years, it mostly sat as the full court, but slowly, the Supreme Court became a court of appeal, and started entertaining all sorts of appeals against different decisions of the courts below which did not involve any major constitutional or legal issues. Now, constitution benches are a rarity and when formed, these consist of five or seven judges. The largest bench so far was constituted in Kesavananda Bharati 

(1973), which was of 13 judges when the total strength of the Supreme Court was 14.

It is not only that coordinate benches of equal strength are not abiding by the decisions delivered by another bench, but sometimes division benches defy even constitution benches, which is nothing short of sacrilege. In Subramanian Swamy v. Director, CBI, a five-judge constitution bench of the Supreme Court struck down Section 6-A of the Delhi Special Police Establishment Act, 1946, which requires the prior sanction of the central government to conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988, if the allegation relates to the employees of the central government of the level of joint secretary or above.

When the British colonial government enacted the Criminal Procedure Code (CrPC), government servants were given protection, as Section 197 provides that prosecution against them cannot be launched without prior sanction of the government. The British had come to rule; so, they wanted to protect their officers. They did not have such a provision in their own country.

After Independence, the Government of India, following in the footsteps of the colonial rulers, not only refrained from tinkering with these laws but provided for similar protections while legislating other laws. Thus, Section 19 of the Prevention of Corruption Act also enjoins the investigating agency to obtain prior sanction from the government for prosecution. In contrast to what the constitution bench said, in L. Narayana Swamy v. State Karnataka (2016), a division bench of the Supreme Court took a contrary view that further investigation of a public servant under Section 156(3) of the CrPC cannot be ordered without prior approval.

Ambiguous verdicts

Judgements are supposed to be crisp and clear, leaving no scope for ambiguity. However, many a time, it has been difficult to derive the ratio decidendi  (principles underlying a decision) from the judgement. In JP Unnikrishnan v. Andhra Pradesh (1993), a five-judge constitution bench gave the liberty to private colleges offering professional courses to keep 50% of the total seats to be allotted under the management quota as running the college was treated as an occupation under Article 19(1)(g) of the Constitution. It led to filing of many cases over the fee structure decided by the management.

In order to remove all ambiguities, an 11-judge bench was set up in TMA Pai Foundation v. Karnataka, which gave a detailed judgement in 2002 that although profiteering was not acceptable, private institutions could decide their fee structure keeping in view their future expansion and the generation of a reasonable revenue surplus. Nevertheless, clarity eluded and another five-judge constitution bench in Islamic Academy v. Karnataka (2003) sought to iron out these creases. It, however, failed to put to rest the confusion, and another seven-judge constitution bench in PA Inamdar v. Maharashtra (2005) tried to settle the ratio in the TMA Pai Foundation case. In the name of interpretation, smaller benches overruled larger benches.

Judges have the freedom to interpret but it should not give way to indiscipline, where no precedents are followed. Judges are supposed to be above personal whims, likes and dislikes. They have to act within the parameters of law.