[Opinion] Some Legal Issues – To Ruminate Over

Dr (CA) Hemant O Sharma, Hardayal Singh (retd) & Gopal C Mehta – [2024] 158 taxmann.com 102 (Article)

Prologue

As practitioners of law, we have an obligation to think, even if occasionally, about whether we are happy about the direction in which our legal system is moving. Regardless of whether we are or aren’t, we are obligated to the society at large to suggest how it can be improved. Here are a few thoughts with this end in view.

1. Judicial adjudication – based only on numbers

1.1 Judicial adjudication evolves with time but essentially revolves around a number game such that it is always the view held by majority of judges on the bench that gets sanctified as the law on the issue decided.

1.2 It is well known that before arriving at a judgment, the judges do discuss their orders with brother judges on the bench so as to have a commonality of view, demonstrating coordination, co-operation and consideration for other views. However in absence of unanimity, we hardly find judges countering each other. They merely put up their own view, as in an essay competition.

1.3 As between conflicting decisions of non-jurisdictional HCs, ITAT must apply the non-jurisdictional HC decision of a larger Bench. It has also been further held that when there were conflicting views of non-jurisdictional High Courts, a full bench decision was to be placed at a level higher than a division bench decision and a division bench decision from same forum, was to be placed at a level above a single judge bench decision Wockhardt Ltd. v. Dy. CIT [2022] 144 taxmann.com 27 (Mumbai – Trib.).

1.4 In case a five-judge constitution bench pronounces a judgment unanimously which is reversed by another constitution bench of seven judges by say 4:3, this later judgment with less than 5 judges actually reversing it, stands. An anomaly here is that a majority decision is treated as the ruling of the entire bench, including the dissenting judges that examined the question. (Refer the article “Judicial Comity Over Arithmetic”) by Aditya Manubarwala.

1.5 The most celebrated judgment of Kesavananda Bharati v. State of Kerala [1973] 4 SCC 225, in respect of fundamental rights of citizenry, delivered by a 13-judge bench, hangs by a wafer thin margin of 7:6. The learned author C Raj Kumar a founding Vice-Chancellor of O P Jindal University, in his article “A New Judicial Imagination” refers to a doctoral thesis of a sitting judge, Justice A K Jayasankaran Nambiar, of the Kerala High Court. “The thesis is titled

“The Judicial Role in Constitutional Protection: Examining the Legitimacy of Basic Structure Review in India”. This thesis “provides strong support to the jurisprudential foundations and doctrinal validity of the doctrine in a rather interesting manner. Seeking a new imagination of the doctrine to strengthen it and make it conform to the constitutional text, Justice Nambiar, re-examines the role of judiciary in matters of constitutional protection in the present information age when there is a public demand for transparency in the functioning of democratic institutions. Justice Nambiar has argued that while in the past it was efficacy of its judgments that earned the judiciary public trust, today that trust can be sustained only through a demonstration of the legitimacy of its judgments. The thesis has argued that the formulation of the basic structure doctrine in wide and ambiguous terms runs the risk of reducing the legitimacy that it would otherwise have had as a tool to check the excesses of an ambitious executive/legislature.” (emphasis supplied)

1.6 It is worthwhile to remember that Constitution did not permit handpicking judges for appointment – like by the Collegium in its present dispensation. Yet the five-judge Constitution bench led by CJI Jagdish Singh Khehar, though with a dissent of Justice Jasti Chelameswar, held that the National Judicial Appointments Commission Act 2014 violates the basic structure doctrine of the constitution, even when, then, in the first instance of its kind, the Parliament was unanimous in legislating the National Judicial Appointment Commission Act 2014, for appointment of judges to the courts. Supreme Court Advocates-on-Record Association v. Union of India [2016] 5 SCC 1.

1.7 In fact, article 142 of the Constitution furnishes kamdhenu-like powers to the Supreme Court to do justice. Article 142 of the constitution confers unique power on the Supreme Court to do ‘complete justice’ between the parties even where the law may not provide a remedy. There was no real imperative for the Supreme Court, except for ensuring its predominance in appointments, to render NJAC unconstitutional. Justice Sanjay Kishan Kaul, in an interview post retirement, stated that NJAC could have been suitably tweaked instead.

1.8 In the view of authors — no power shall be absolute; it is thus imperative to limit the limitless powers arrogated to itself by the judiciary, even while applying them under the open-ended basic structure doctrine of Constitution, if necessary, by legislation.

1.9 It is discouraging to note that no exception is carved out to this number game, even in the case of a judgment rendered by a constitutional bench formed for a specific purpose.

1.10 In the humble view of authors when only the ‘numerical strength’ of judges is to decide the law, when more number of High Courts decide an issue in a particular manner that should be the law of land. This is especially necessary in income-tax matters, where a constitutional issue is not involved. It is generally High Court judges who end up being recommended for elevation to the Supreme Court. Is there then any need for the Supreme Court to intervene in each and every case, when the High Courts or even the Income-tax Tribunal benches have delivered a well-reasoned order? (more on this in succeeding paras)

2. Dissent in judgment

2.1 Although a rarity, the authors are alive to the fact that the dissenting judgments can eventually become the law when the majority of judges in the same or higher judicial forum recognize and accept it. The dissent of Justice Fazl Ali in A K Gopalan v. State of Madras AIR 1950 SC 27 and of Justice Antonin Scalia of the US Supreme Court, amongst others, are poignant illustrations of dissenting judgments getting approved by a majority of judges on the bench, albeit later.

2.2 It is worthwhile to note the power of such dissenting judgments. In the words of the 11th Chief Justice of the U.S. Supreme Court, Charles Evans Hughes:

“A dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”

2.3 Judges are known to have changed their minds after pronouncing judgments though the judgments they delivered would always prevail, for it is only the court that can interpret the law, when it pronounces it through the bench. Judges have honestly and generously admitted their fallibilities and have reiterated that the Supreme Court is supreme not because it is infallible but only because there is no appeal against its orders- except in a few limited cases.

2.4 Appellants have had only limited, rather hardly any success, in case of review petitions before the Supreme Court. The bench, it is respectfully submitted, seems to be uninterested in reviewing its own judgment though the court has often shown considerable depth, desire and determination to differ on the same issue in a different case available to it for adjudication.

2.5 Significantly, the dissenting judgment of Justice Dhananjay Chandrachud in Aadhar judgement K.S. Putta Swamy v. Union of India [2017] 10 SCC 1, was quoted extensively by the judges of the Supreme Court of Jamaica, to strike down National Identification System [NIDS], similar to our Aadhar. Some ways must therefore be found to give greater weightage and primacy to dissenting voices.

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