SC points a finger at high courts for indiscipline, but a few fingers turn to itself.
On an ordinary weekday, Supreme Court judges sit in 12 court rooms, forming benches of two or three. All of them are equal in judicial power and their judgements are the decisions of the Supreme Court which should be followed by all the courts in the country. However, the fact that they are sitting in several courts with different combinations of judges on different days gives rise to a problem of coordination. It is not uncommon for one bench to pass orders which are inconsistent with those delivered by another. Sometimes, the predilections or even personal prejudices of judges create strife. The founding fathers of the Constitution did not think of the US Supreme Court model where all the judges sit together to hear cases.
The bench formation in the high courts is even more complicated with some of them having nearly a hundred judges. They may differ in their interpretation of the Supreme Court judgement or choose the one which suits their mind. This leads to judicial indiscipline, which seems to be growing. In a judgement of the Supreme Court delivered two weeks ago, Official Liquidator vs Dayanand, the court expressed its “distress at the substantial increase in the number of cases involving violation of the basics of judicial discipline. The benches of the high courts refuse to follow and accept the verdict and the law laid down by coordinate or even larger benches by citing minor difference in the facts as the ground for doing so.”
The court recalled several judgements of the past in which this norm had been emphasised, apparently in vain. Therefore, it used stronger words this time in its 100-page judgement: “Disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty are important hallmarks of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgements of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgement lay down the correct law and which one should be followed.”
The court continued: “Those who have been entrusted with the task of administering the system and who take oath to act in accordance with the Constitution have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of the judicial fraternity … If the courts command others to act in accordance with the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.”
Strong words indeed for the high courts. However, the Supreme Court itself has not been free from the fault and should look into the beam in its own eye. In State of UP vs Jeet Bisht, one Supreme Court judge last year criticised the orders passed by his brethren in the case earlier. This was not approved by the judge sitting along with him. Therefore, he wrote a separate judgement criticising his brother judge for ‘inappropriate’ behaviour. He wrote: “One bench of this court does not sit in appeal over the other bench, particularly when it is a coordinate bench. It is equally inappropriate for us to express total disagreement in the same matter as also in similar matters with the directions of the larger bench. The doctrine of judicial restraint applies in this realm. We should not forget other doctrines like judicial discipline and respect for brother judges.”
In yet another judgement of last year, a two-judge bench of the Supreme Court went against the ruling of a five-judge Constitution bench, invoking a decision of a seven-judge bench (UPSEB vs Pooran Chand). The five-judge judgement in State of Karnataka vs Uma Devi is now the authority on absorption of temporary workers. However, this ruling was straddled, as it were, by invoking the Maneka Gandhi case of 1978 by seven judges. Now the Supreme Court has asserted that the Maneka Gandhi case was not relevant to the Pooran Chand case and the Uma Devi case must be followed. “The Pooran Chand judgement should neither be treated as binding on the high courts nor should they be relied upon or made basis for bypassing the principles laid down by the Constitution bench.”
The legal profession uses a Latin phrase to describe this situation, lest ordinary people should understand it — ‘per incuriam’. It means a judicial blunder.