The Supreme Court and the need to restore institutional coherence

Justice Dhananjaya Y Chandrachud ended his tenure as CJI, facing criticism over the Supreme Court's declining authority and conflicting judicial messages.

Justice Dhananjaya Y Chandrachud demitted office as Chief Justice of India (CJI) on November 10, having served a relatively long tenure of two years. It is customary, and natural, to review the state of the institution on such occasions. While there are many lenses through which one might view the Supreme Court (SC), the ultimate test of its success must be its legitimacy, its ability to command respect and compliance. By this standard, we must all be troubled by recent trends, now too frequent to be shrugged off as mere aberrations.

In case after case, it is difficult to see discernible logic or pattern in what is prioritised by the Court

In one instance, a judge of the Punjab and Haryana High Court (HC) made sharply critical comments about an interim order of the Supreme Court. A five-judge bench of the Supreme Court was promptly constituted by the CJI Chandrachud, and the offending observations expunged. In another case, a judge of the Calcutta HC continued hearing a sensitive political matter after having been explicitly directed by the apex court to desist. In a third example, a Karnataka HC judge, while not addressing the Supreme Court directly, made remarks widely criticised as religiously insensitive and misogynistic.

In each of these cases, the Court has come down with a heavy hand, and self-consciously so. Five-judge benches have been constituted to send a clear and unequivocal message. But in all of this, a deeper introspection is eschewed. Why are HC judges — constitutional functionaries themselves — so frequently thought to be disregarding the apex court’s writ? Why do even final Supreme Court judgments so often seem like merely another page in the chapter, and not the definitive word they must ideally be understood to be?

The Court — with up to 34 judges and as many as 17 benches assembling on working days — has long been understood to be poly-vocal, and this comes with its own challenges for predictability and certainty in legal jurisprudence. A larger debate about the prioritisation of constitutional law matters over routine “error correction” cases is much needed. But even for the Court, as it exists today, its own decisions and choices must bear some measure of responsibility for weakened signalling to the courts below. There exist institutional mechanisms for streamlining and ironing out the most troubling ambiguities, but it is hard to avoid the impression that the SC itself feels unbound by these. “Do as I say, then, not as I do” is the message to the courts below.

Take the Delhi Metro Rail Corporation (DMRC) arbitration award. A final arbitration award in a commercial dispute is overturned in curative jurisdiction — a technical term for the Supreme Court reopening its own judgments, reserved in principle for the rarest of the rare cases. The law is clear — arbitration awards ought not to be second-guessed by the courts. The matter having attained finality in the apex court after multiple levels of review, the decision being reversed in a curative petition is deeply troubling. The arbitration law community has already expressed disquiet, but the consequences are larger still. If in the sphere of arbitration law, a decision can be overturned in a curative petition, the average litigant can scarcely be faulted for taking a chance in her case before the apex court, even with less than robust grounds.

Some critical matters were addressed in Justice Chandrachud’s tenure — Article 370, significant decisions on reservations and gender rights, and important taxation and arbitration law questions. And the head of the institution undoubtedly deserves credit. In these areas too, though, it is hard to avoid the impression that finality and certainty is sometimes sacrificed to the pursuit of an (elusive) perfection. A Constitution Bench matter concerning important questions on stamp duty and the Arbitration Act was finally decided by Justice KM Joseph’s bench. Right or wrong, the judgment rendered could hardly have been more elaborately considered, having been heard and deliberated over for several weeks. Within months of Justice Joseph’s retirement, the majority judgment was reopened and overturned by a larger Bench.

Other critical matters remain pending for years. In case after case, it is difficult to see discernible logic or pattern in what is prioritised by the Court. In the Sabarimala matter, for example, it was Justice Chandrachud’s own view — ironically — that was referred for reconsideration to a larger Bench and has remained in limbo for years now. The challenge to the Citizenship Amendment Act is another example. If political expediency is the reason, that is troubling for obvious reasons. If it is an honest appraisal of the priorities of the Court, that debate needs to be more transparent.

In this complicated and busy court, another set of data could well be assembled to paint a rosier picture. The reality, however, is of multiple and often conflicting messages reaching the courts below. And it is also of individual judges and benches of the SC having control only over the case immediately before them. It is there that the CJI’s role assumes significance. Restoring the Court’s institutional coherence remains a monumental challenge.

Rishad A Chowdhury is advocate-on-record, Supreme Court. The views expressed are personal