This institutional issue is taking away the weight of verdicts delivered by smaller benches turning the courts into a bundle of contradictions.
The Supreme Court’s Friday verdict on the anti-dowry law is not only hugely problematic for women’s rights but it also lays bare an equally significant institutional malady that has the Supreme Court has developed — ‘intra-court appeal’ – courtesy Chief Justice of India (CJI) Dipak Misra.
What it means is that procedurally valid judgments given by two-judge benches are now being ‘reconsidered’ out of turn by a three-judge bench.
The 498A verdict in July 2017 by Justices Adarsh Goel and U.U. Lalit is the latest to be reviewed by the CJI’s bench, virtually acting like an appellate court.
This process of reviewing a judgment out of turn takes away the weight of verdicts delivered by smaller benches turning the courts into a bundle of contradictions. And this calls for an understanding of how the apex court functions.
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Top court functioning
The Supreme Court of India sits in benches of two, three and on occasion (when required) five or more judges. Every bench speaks as the Supreme Court itself.
When a judgment is delivered by a bench, the recourse available for the discontented party is a review. The review petition filed is heard by the same bench in their chambers and not in open court. Constitutionally, this is final.
For rulings that survive even a review, the court develops a curative review that can be filed under very strict conditions. A curative petition is heard by five senior-most judges.
Apart from these avenues, the ruling can also be overruled in the future by referring the case to a larger bench. Specific questions have to be raised in the reference and it cannot be a wide brush stroke against many smaller strokes.
But there is no system of intra-court appeal in the Supreme Court.
So the troubling July 2017 ruling on 498A should have been reviewed by Justice Lalit and another judge (since Goel retired in July). Instead, the CJI led bench entertained a PIL by an NGO, agreed to review the 2017 July and has now confirmed it.
New trend
Of late, intra-court appeals are becoming a trend.
At a press conference in January, four senior judges had pointed out the case of RP Luthra v Union of India where the CJI led bench took up the issue of Memorandum of Procedure in judicial appointments when the issue was a subject matter of a different five-judge bench.
Another such instance of this was in the orders passed in the medical college case involving the CJI. On 9 November 2017, a two-judge bench of Justices J. Chelameswar and Abdul Nazeer passed an order referring the case to a 5-judge bench. The CJI, however, hurriedly constituted a 5-judge bench which he headed, reiterating his powers as ‘master of the roster’ and sent the case to a 3-judge bench. The 3-judge bench later dismissed the order of Chelameswar and Nazeer and instead imposed a fine of Rs 25 lakh on the petitioner.
In time, this so-called judicial indiscipline has affected other benches. In February, a three-judge bench headed by Justice Arun Mishra invalidated another three-judge 2014 ruling on land acquisition. When other judges and senior lawyers pointed out that it’s not permissible for Mishra’s bench to invalidate a ruling by a bench of equal bench strength, he referred the case to the CJI to set up a larger bench and decide.
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Ever since Misra became the CJI, senior judges have pointed out how he has created a hierarchy in the court that puts him above all other judges. This trend adds to the sense of anxiety that the court is deviating from settled conventions — the hallmark of his tenure.
Misuse of law
As for the 498A ruling, the verdict is no good for women’s rights either. While one ‘guideline’ in the July 2017 verdict that caused the most outrage — creating family welfare committees in every district – has been retracted, all the other problematic changes the court made in July 2017 remain. The verdict on a women-specific law even gratuitously uses the phrase “victim card” totally out of context.
Worse, this ruling also makes sweeping statements that the misuse of the law has “vertically risen” without citing any evidence, even anecdotal.
The 2017 ruling made a reference to four cases in which “misuse of the provision is judicially acknowledged.” However, the trail of evidence that the law is misused does not go far.
The first is a 2005 apex court ruling that, in fact, dismissed the husband’s appeal and disapproved of the sweeping generalisations made by the high court.
“Such observations, though may be appropriate for seminars or workshops, should have been avoided being incorporated as part of a court judgment. Some of the views also touch upon Legislative measures and wisdom of legislative policy in substance, which according to the learned Judge need to be taken into account. There was no scope for considering all such matters in the case which was before the learned Judge. It is, therefore, appropriate that such generalised observations or views should meticulously be avoided by Courts in the judgments,” the court had said.
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The second is a 2010 top court case where the judges made a couple of sweeping observations that it is a “matter of common experience that most of these complaints are filed in the heat of the moment over trivial issues.”
The third again a 2010 Supreme Court case where Justices Markandey Katju and T.S. Thakur directed the Law Commission to examine if Section 498A could be amended to make it compoundable and allow the woman to withdraw the case if a settlement can be reached. This case does not talk about misuse.
The last case is a 2003 Delhi High Court case where the single judge, Justice J.D. Kapoor, felt “constrained” to make stray observations on misuse without any empirical data “before parting.”