The Irony of Twisted Fate- Supreme Court of India and the Independence of Judiciary

The question over the process that is to be adopted for the appointment of members of judiciary is nothing new in India. Right from the First Judges case[1], when the matter was for the first time seized upon by the Supreme Court, the debate on this subject remains quite unsettled, with deleterious effects on the executive-judiciary relationship. The recent move by the executive to alter the situation in a grand manner vide the 99^th Constitutional Amendment[2] and the consequent National Judicial Appointments Commission Act[3], to institutionalize the process of appointment has bought in the executive and judiciary into direct confrontation, resulting in the amendment being struck down by the Supreme Court of India as unconstitutional for its violation of ‘basic structure’ of the constitution.

The judgement[4] though seems to be doing its job in protecting the independence of judiciary, the fundamental proposition that it puts forward raises more questions than it proposes to answer. Deciding over the question of constitutionality of the said amendment it has traversed much more than what was required of it, defeating the very principles that it professes itself to be a guardian of. In the name of protecting the ‘independence of the judiciary’ it has promoted itself to hegemony, browbeating the other two legs of the federal structure that the constitution establishes. Though one cannot in any manner assure that the members of the legislature and executive are the vanguards of ethics and morality; however that does not consequently make the judiciary a messiah who is beyond reproach. Though the Supreme Court has placed itself in a lofty summit of unreachable proportions, through this ruling, it is still based on very shaky grounds. The fact that the Second[5] and Third[6] judges case that the present verdict has relied upon itself is based on a stretched interpretation of the Articles of the Constitution has been lost in the rhetorical bashing of the polity.

The mind set with which the conclusion was arrived at had made them defy certain constitutional logics in the process. For example in the First and Second Judges case, the manner in which the term “consultation” used in Articles 124, 217 and 222 of the Constitution, which concerns with the appointment and transfer of members of Higher Judiciary, has been interpreted by the Supreme Court, expanded its scope much beyond what was actually intended by the drafters and included the consultation of Chief Justice and subsequently the collegium of judges as must, thereby assigning the ‘primacy’ to the opinion of Chief Justice. This has to be seen in the light of the fact that the answers arrived at were merely a result of all the extended interpretation that were crammed into the relevant articles of the Constitution. The present verdict, going a step further, has conferred the all compassing power to itself to decide over the matters relating the appointment of members of higher judiciary, making itself a sole authority have a say over the process.

The principle upon which the verdict has been arrived at merely makes it all too obvious, the desperation to protect its exclusive say in this domain. This has made them to go to unheard of lengths to substantiate it. Take this for example. With the purpose of showing that any degree of involvement of other legs of the democracy in the process will cause a prejudice against its independence, the notion ‘theory of reciprocity’ has been exploited. As per this theory in a situation wherein a judge is nominated to the position by the executive, once he attains the post, he feels himself indebted to them. The gratitude that the judge finds prejudices his decision making process. To quote a passage “In the existing Indian cultural scenario, an act of not reciprocating towards a benefactor, would more often than not, be treated as an act of grave moral deprivation. When the favour extended is as important as the position of judgeship in the higher judiciary, one would best leave it to individual imagination, to determine the enormity of the reciprocal gratitude and loyalty.”[7] The very concept is at the best a conjecture but it is stupendous to draw a conclusion that this causes a violation of the basic structure of the constitution. How much ever the possibility of the executive and legislature being morally corrupt lingers over us it is still a constitutional morality to involve them at some level. The Constitutional Assembly has never intended the independence of judiciary to mean the primacy of judiciary. The ostensible suspicion that the judiciary through this verdict is casting upon the executive is no different from the executive misdemeanour of the past when out of turn elevations in the Supreme Court were made, for which vigorous references were made in this verdict. It is ironic to know if the Constitutional principles warrant the degree of independence to be of a magnitude that the present verdict interprets it to be then the judiciary itself has become the potentate that it is there to take control of.

The ideals that is sought to be preserved under the Constitution cannot be done single handedly by the judiciary and it never was the intention of the drafters too. It seeks for an eclectic mix of the three arms of the federal structure in its functioning. The executive judiciary antagonism that is perpetrated through this verdict does not bode well for the nation. Doubtless it can be agreed that the amendment that was sought to be introduced is not the best way to take forward the much needed reforms in the process of judicial appointments, the judiciary has committed a grave error in placing itself in a rather too high a moral ground in the process of declaring it unconstitutional. I believe the present verdict draws its inspiration from the moral compass that guided the judiciary at the darkest hour in our democracy during the periods of emergency. Without a shadow of doubt it is the same that saved us all from the impending tyranny of the then executive. But to continue having the same attitude will defeat the very constitutional principles that it is product of- an irony of twisted fate. If not anything else at the least this verdict has given rise to a fresh debate over the need for reforms in the present process of judicial appointments. The judiciary must take a note of this to fix the functioning of its self, for the opportunity is ripe to introduce much wanted changes towards the accountability and transparency.

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[1] S.P.Gupta v. Union of India, 1981 (Supp) SCC 87

[2] Constitution (Ninety-ninth Amendment) Act, 2014, online: India Code, Legislative Department <http://indiacode.nic.in/coiweb/amend/99th.pdf>

[3] National Judicial Appointments Commission Act, 2014, online: India Code, Legislative Department <http://www.indiacode.nic.in/acts2014/40_of_2014.pdf >

[4] Supreme Court Advocates-on-Record Association and another v. Union of India- Writ Petition (Civil) No. 13 Of 2015

[5] Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441

[6] Re: Special Reference No.1 of 1998, (1998) 7 SCC 739

[7]  Supreme Court Advocates-on-Record Association and another v. Union of India- Writ Petition (Civil) No. 13 Of 2015 at ¶ 164

Dispute Review Boards: The Gun Without Bullets

In a post that I wrote early this year, I discussed the new, for India, concept of Dispute Review Boards. There I merely gave an overview of what the concept is all about, without resorting to any sort deep analysis, and the role of lawyers in such kind of proceedings. Though I wrote that post without actually attending in person any DRB proceedings, my opinions were based on the way in which everyone who is involved in it treated it, as an adjudicating process. My fears, in fact proved to be true beyond reproach as I got to attend one of the most hostile conciliation in my very limited experience. 

The problems in this particular DRB proceeding that I happened to involve myself are numerous. I can with a degree of certainty state that the same is the case with most other DRB proceedings in India. The fundamental problem is the mind-set that every person involved in the proceedings has towards the proceedings itself. As stated in my earlier post, lawyers contribute the most to this problem. Everyone involved in the proceedings thinks this merely as another box ticking exercise that has to be done before reaching the process of litigation, how much ever long drawn and adversarial it could be. This is no less because of the fact that none of the people who were involved in the process were either trained in the process or at least gone through the pain of reading the literature on this process. They essentially treated this like arbitration with a change in the nomenclature of certain things here, like an award in arbitration into recommendation. One of the important contributing reasons for this waywardness is the poor drafting of contractual clauses concerning the DRB. The contract that I was involved in, merely had two lines to the effect that the disputes should be first referred to a DRB and the process shall be governed by the ICC (International Chamber of Commerce) Dispute Board Rules. 

When to form?

The primary aim that is sought to be achieved through this conciliatory process is to solve any dispute in a commercial transaction as and when it arises and as amicably as possible. This has to be seen in the light of the fact that the whole concept Dispute Boards evolved as a solution for the problem of delay that happens frequently in the construction industry. To the contrary, in my case, the DRB process was initiated only after the whole project is over defeating the whole purport. In case the process is initiated post the completion of project, apart from the failure to resolve the disputes on time, it also results in a futile reconstruction of whole process again, wherein inevitably some muddling happens resulting in time and cost to the parties. A real time settlement more than settling the disputes helps preserving the relationship between the parties. An important reason for this mistake is because it has not been expressly mentioned in the contract, that the DRB has to be constituted at the beginning of the project, in order to continuously monitor the project and settle the disputes in real time.

Is It a Necessary Condition Precedent?

An interesting implication can be drawn if we suppose that a party bypasses the process completely and goes to litigate its claims. Though I was not able to find any Indian case law on this subject (Albeit it is a limited and indolent search of a lazy bone) I was able to find several American case laws, for the process has matured to a greater extent there. Two possibilities arise in such situations. One is where the claimant simply bypasses it and initiates litigation and another is where the other party simply insists upon the DRB proceedings to buy more time from litigation. The court (in BAE Automated Systems V. Morse Diesel International), as expected, ruled that, in the absence any legally justifiable reasons the process cannot be bypasses. The reasons can be waiver by one of the parties, fraud, estoppel etc. 

Appointment and Removal of Members

As in all conciliatory proceedings the integrity and impartiality of the person who is appointed as a member of the board is of utmost importance. It will be rhetoric to write about the code of conduct that a member of DRB must follow. In the proceedings that I happened to witness one of the members of DRB was visibly advocating the cause of the party who appointed him when the other party’s counsel made his oral presentation of his case. The reason could either be because he did not realise that it is a conciliatory proceedings and that he has to be impartial or because he is just a plain old jackass. The implications of such instances are very important, for any loss of confidence that a party has over the member will undermine the sanctity of overall process.

Applicability of Part III

I was curious after the incident, over whether the provisions of Arbitration and Conciliation Act, 1996, pertaining conciliation will be applicable in this case or not. It is given that it is a conciliation process; however it is still a creature of a contract. One possible reason can be that we cannot thrust in something which is not there already in the contract, with this essentially being a creation of the contract we cannot set it aside. However, Section 61 of the Act clears the air by defining its application and scope.

61. Application and scope - (1) Save as otherwise provided by any law for the time being in force and unless the parties have otherwise agreed, this Part shall apply to conciliation of disputes arising out of legal relationship, whether contractual or not and to all proceedings relating thereto. (2) This Part shall not apply where by virtue of any law for the time being in force certain disputes may not be submitted to conciliation.

I found an Indian case law that indirectly deals with the applicability of Part III of the act to the proceedings before DRB (Alcove Industries Ltd. Vs. Oriental Structural Engineers Ltd. [1]). The main issue in this case is the responsibility of an arbitrator to disclose in writing at the outset, such facts, which may give rise to justifiable doubts to his independence and impartiality. The arbitrator in this case, before being appointed as an arbitrator by the defendant company, worked as a member of Dispute Board, in respect of some works executed by respondent company. This fact was not disclosed when the appointment to the present arbitration proceedings were made. The court in order to explicate the bar of a conciliator (member of DRB in this case) referred to the provisions contained in Part III of the act. The judgement goes on to hold that section 80 of the act prohibits a conciliator from acting as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject matter of the conciliation proceedings. Though these aspects are irrelevant for the present post, the important aspect that I can infer from this decision is the applicability of Part III of the act to the DRB proceedings. The decision, albeit indirectly, makes it clear that DRB proceedings are indeed governed by the provisions of the act.

Conclusion
Whatever is the form that the efforts for an amicable dispute resolution might take, it all ends up depending upon the intention and ability of the lawyers to best utilize the opportunity, more than the parties themselves, to settle the disputes in the most prudent way possible. The very intent of the process is defeated in most cases with things as basic as the tenor language that is used in the written communications. Without a fundamental understanding of such intricacies it is impossible for such efforts to succeed at any level. Moreover, in most cases with the resolution process being administered ad hoc without any institutional assistance, just like the case of arbitration, in India, the process loses its focus and the required streamlined approach without required expert assistance. The solution cannot be a something that can be done at the stroke of a pen. It requires some ideological acceptance of the process as a genuine alternative to settle the disputes. 

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[1] 2008 (1) ARBLR 393 (Delhi)

Hearing without Hearing

A recent case of Review in Supreme Court that I worked upon opened my mind up to certain intriguing questions that I never thought before. As a law student, I have studied the review jurisdiction of Supreme Court in a superficial manner, under the constitutional law. However, the real world experience of drafting and filing a review petition was a world apart. Though theoretically I was sound I experienced a lot of difficulties in putting it to the best use possible. It was like an undelectable mix of dessert topped with salt for icing. Maybe I am one of those victims of the curse that most suffers here, the practice-academia disconnect. I was merely taught about what was review jurisdiction of Supreme Court of India, that too in a dilettantish way.

Coming to the topic of this post,

Though Article 137 of Constitution of India provides the power of review to the Supreme Court of India, its implementation is carried out through the rules that are framed by the Supreme Court, vide the powers vested in it by Article 145 of the Constitution. The Supreme Court Rules, coming into force for the first time in 15th January 1966, governs the procedures that are to be followed in the proceedings before the apex court of the country. This was subsequently repealed, considering the changing circumstances the change in circumstances with time and the necessity to keep pace with it, with The Supreme Court Rules, 2013, coming into force on 19th August, 2014.

In this particular brief that I worked upon, which has a history of long and protracted litigation, a Special Leave Petition was filed against the order judgement which the petitioner lost. Now he wanted to try his luck in a review of the judgement. It was only after filing of the review petition that I observed something peculiar in the Supreme Court Rules that governs the review petition. Under Part IV, Order XLVII; Rule 3 dictates that an application for review shall be disposed of by circulation, without any oral arguments. The provision itself is extracted below:

"Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed."

This was the first instance, which I encountered, where a person’s right to be heard publicly is curtailed expressly. This gives rise to a situation where a person's case is decided upon secretly, in the chambers of the judges, through the process of circulation, without giving an opportunity to present oral arguments. The hearing becomes 'deaf' without it. The purpose of this provision, ostensibly, is to prevent wastage of court's precious time, however, it in effect refuses a person a right as basic as to make oral presentation of his case in public. Moreover, this denial of this right, it can be argued, leads to violation of a person’s fundamental right equality enshrined under Article 14 and the procedural fairness under Article 21. Numerous case laws have expounded these two rights and it will be trite to mention them here emphasizing their importance as a fundamental right. The irony is that it is very same Supreme Court, which created this unconstitutional rule, in numerous cases acted as the paragon of justice, upholding these rights.

The previous version of this rule, introduced under Order 40, Rules 2 (1) & 3 of the Supreme Court Rules, 1966 as an amendment, was challenged in the case of P.N. Eshwara Iyer Vs. The Registrar, Supreme Court of India.[1] The rampant filing of review petitions, without much basis legally, made the court to think of a way to curb it, leading to the amendment that gave away the oral arguments for disposal through circulation. Two important arguments that were taken by the petitioner to invalidate the rule are (i) Scuttling of oral hearing is subversive of a basic creed that public justice shall be rendered from the public seat. (ii) A Review is a judicial process and its proceedings must not run away from the processual jurisprudence. However, the court rejected the arguments and upheld the constitutional validity of the rule. Justice. V.R. Krishna Iyer, writing on behalf of his brother judges Murtaza Fazal Ali and D.A.Desai J.J. reasoning can be condensed thusly

1.   Laxity in certification (to be given by the lawyer that there exists reasonably good grounds for a review) and ‘promiscuity’ in filing review applications has crowded the court with ‘unwanted review babies’.

2.    In order to curb the reckless filing of reviews, a process of preliminary screening is a need, which is established through this rule as the disposing of through circulation.

3.      Oral hearing has been substituted by written submissions and it adequately provides an opportunity to the petitioner a hearing. Moreover, the right to be heard is of essence but hearing does not mean more than a fair opportunity to present one’s point on a dispute, followed by a fair consideration thereof by fair-minded judges.

4.  ‘Circulation’, in the judicial context, merely means, not in court through oral arguments, but by discussion at a judicial conference. Judges, even under the amended rule, must meet, collectively cerebrate and reach conclusions.

5.   A Review is not an original hearing and a second hearing of an order that is already passed after a full hearing is inept. The distinction between an original application vis-à-vis an application for review for the enforcement of fundamental right was observed as made in the case of Lala Ram’s Case.[2] There it was observed that an application for review is not to enforce a fundamental right but to reopen an order vitiated by an error on the face of the record. The enforcement of the fundamental right therefore is therefore a mere consequence of the review.

In the same case Pathak J. with A.D. Koushal J. also came to the same conclusion in a differently worded judgment. With this the matter was put to rest.

The question again came up for consideration in a batch of cases (It is interesting to note here that Yakub Memon’s petition was also one amongst them), in the context of a review in matters involving death sentences.[3] This time however the rule that was challenged was under the latest The Supreme Court Rules, 2013, albeit with the same wordings of the previous one in this regard. The question that came up for consideration before the court was, whether the rule holds good in the cases where a review is sought against an order confirming death penalty. Again the questions over right to life, irreversibility of a death sentence, importance of oral submissions, procedure for review of death sentence cases were considered. The majority opinion after considering and clarifying the P.N. Eshwara Iyer case ruled that Order 40, Rule 3 sufficiently meets the requirement of the principle of audi alteram partem. However, it clarified, in the cases death sentence the question is something that is over the life or death of a person. Therefore, even a remote chance of deviating from a decision which is sought to be reviewed would justify an oral hearing. It is too precious to be parted with. If it is found that such a sentence is not warranted, after the sentence is executed, it would serve no purpose. Thus the court found that a limited oral hearing, even at the stage of review, is mandated under Article 21 of Constitution in all the death cases. To support its cause the court relied upon the fact that Court’s overcrowded docket would be able to manage a limited oral hearing of 30 minutes in death sentence cases, which are numerically filed at the rate of 60 per annum. The court ruled it to have a prospective effect.

Jasti Chelameshwar J. dissenting from the majority held that an obligation to guarantee for such rights are a given under the constitution; however, it does not extend so far as to compulsorily giving an oral hearing in every case where a review is sought by a condemned convict. The reasoning, sound in its own right, as provided is as follows.

1.    Barring the contingency contemplated under Article 134, the makers of the Constitution did not even think it fit to provide an appeal to the Supreme Court even in cases of death penalty.

2.  In cases other than that are bought as matter of right under Article 134, the Court’s jurisdiction is discretionary. Therefore, Article 137 of Constitution does not confer any right to any person to seek a review, rather it recognises the authority of Supreme Court to review its own judgements.

3.   The rule of audi alteram partem do not take within its sweep the right to make oral submissions in every case. It all depends upon the demands of justice in a given case.

It is interesting in the way in which the Supreme Court has opened up the avenue to a limited extent for the death penalty cases while at the same time it tries in every possible way not to open the gates of oral hearing in any manner for other cases. How much ever generous it may sound to be, for providing a leeway for death penalty cases, one fact has been firmly established in both the cases even in the dissent that was written in them no one has entertained the possibility of giving the opportunity for an oral presentation of the case. Some feel that it not fair for a person to be deprived of the advantage a party will get because of the oratorical skills of an advocate and also mere practical consideration, that most of review that were filed are futile, cannot outweigh the rights of a person. Rightfully said. The fundamental rights are never intended to be protected in degrees like in this case where death penalty is given preference over others. It is weird that it is the same court that talked about procedural fairness all through its judgment ending it with a conclusion that such a right cannot be vested in all cases in a review. If at all there is a problem, it is merely systemic that must be rectified through other means, rather than curtailing the rights of a person. Imposition of exemplary costs, though it fails to deter most of the parties or rather the advocates, limiting the time granted for oral arguments and so on. Looking back at the history of Supreme Court and its exemplary activism, this is in fact surprising. Maybe with changing needs of the time the perception of freedom has changed too.

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[1] AIR 1980 SC 808

[2] (1967) 2 SCR 14

[3] (2014) 9 SCC 738

Dispute Boards: An Overview

In the legal universe dispute settlement is a never ending process that seeks constant attempts to innovate and try new mechanisms. This attains enormous significance in the case of India, given its infamous reputation for its long drawn judicial decision making process. Now that the economy of the country is making giant strides, the consequent increase in commerce needs for such innovations to be made in the alternative dispute resolution mechanisms to provide the entrepreneurs with a safe and effective decision making process to fall back upon. However, India has always been late in adopting such innovations. One example for that can be the Arbitration as an effective alternative dispute settlement process. It was not until the Arbitration and Conciliation Act, 1996 was passed that it was really seen as an effective solution to resolve the disputes. These days it has become an invariable standard for everyone to resort to arbitration to solve their disputes. Ignoring the harsh reality that in most of the cases the arbitral awards are challenged again the court giving raise to numerous litigations, rendering the whole intention of resorting to the arbitration in the first place ineffective, we still have to recognize the fact that it still provides a person a safe and effective dispute settlement process over which is both flexible and on time.

Arbitration as a dispute settlement process, however, comes into play only after a dispute arose and both the parties recognize that it has to be decided by way of a formal adjudication. Thus it still is a process that possesses the possibility to delay the projects, if it is an ongoing one. Moreover, the whole process is adversarial that it will not result in an amicable ‘settlement’. Though other dispute resolution mechanisms like mediation, conciliation do exist they still lack the actual engagement between the parties in real time to be effective to curb a problem as and when it arises. This role of providing a platform for the parties to realistically engage can be provided by the still budding concept of ‘Dispute Board’. Though the concept itself is not new, it is yet to attain the required traction in India. Major commercial contracts have just begun to include Dispute Board Clauses with reference to the International Chamber of Commerce (ICC) Rules.

Dispute Boards- An Overview

The International Chamber of Commerce defines a Dispute Board as standing bodies, comprising one or three members, normally set up at the outset of a contract to help parties resolve any disagreements and disputes that may subsequently arise during its performance. Under the ICC Dispute Board Rules three different types of Dispute Boards has been prescribed, giving the parties a choice to choose amongst them according to their own preference and convenience. They are

i)                    Dispute Review Boards (DRB), which issues recommendations

ii)                  Dispute Adjudication Boards, which issue decisions and

iii)        Combined Dispute Boards (CDB), which normally issue recommendations but may  issue decisions if a party so requests and no other party objects.

The classification is completely based on the binding nature of the decisions or recommendations that the parties wishes the Dispute Board to issue, where a decision must be complied with by the parties without any delay and a recommendation must be complied with only if no party expresses dissatisfaction within a prescribed time limit. Also it is free for the parties to make even the non-binding observations made by the board admissible as evidence in the court. Thus it is completely dependent upon the choice made by the parties over the nature and mandate of the Dispute Board.

An Ideological Hijack

The major advantage of this model of dispute resolution technique is that this is a ‘hands on’ approach that involves both the parties in a fair and transparent manner without any third party intervention, read lawyers. In India at least, I feel that, the reason for failure of arbitration and other dispute resolution methods is because they have been hijacked by lawyers. Yes, the involvement lawyers to a great extent as defeated the purpose of such alternative dispute resolution mechanisms. The very moment a lawyer gets involved in the process he brings with him all those unnecessary legalese that the process is designed to avoid. Of course, one can never refuse the necessity of involving a lawyer in certain unavoidable situations within these mechanisms, but the level of involvement has become too much for any meaningful outcome from these mechanisms.

The Dispute Boards on the contrary stands out with the difference that it seeks to involve the parties directly and its formation is, as mentioned earlier, is right at the outset of the project itself. The parties gets to appoint a member of their own in the board and the board will meet periodically to review the project as a whole, looking for any emerging issues between the parties to nip them in the bud. Thus this is proactive in its way of functioning. As far as involvement of the lawyers are concerned, the International Chamber of Commerce (ICC) Dispute Board Rules, which provides with a standard and uniform set of rules for the procedures before the dispute board, Article 19 (7) is the provision that is used as the entry ticket. It reads as follows

“The parties shall appear in person or through duly authorized representatives who are charge of the performance of the Contract. In addition, they may be assisted by advisors.”

The problem arises when the lawyers who involve themselves brings with them the uncalled for courtly atmosphere. Even with my very limited experience in dealing with this I was able to see this plainly. The fact that the parties feel a psychological discomfort when they do not have a lawyer around, even for a process as friendly as this only adds to the woes. Unless this still budding mechanism is rescued from the hands of lawyers like me by limiting their role only to the extent as an adviser the novel concept will definitely go wayward like others of our history.