8 comments

• But if you look at the other US SC judgement that same day, US vs Windsor, it took a different view. It alowed a House committee to contest the case on appeal.
  Also, isn't it better that the issue be settled at SC level, where it will be binding on the rest of the country, rather than leave it to the interpretation of the next HC which gets a case on it

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• Although academic criticism is always welcome, isn't it slightly presumptuous to author a post on what the Supreme Court should do, when the matter is still sub-judice and reserved for judgment? If a newspaper did this with a murder trial, wouldn't we all be screaming trial by media?

  The locus standi argument has been made before the Supreme Court and the Court is aware of it. As a litigator, I know better than to try and guess what's on a Judge's mind before you actually see the judgment. Unofficial court transcripts of court proceedings notwithstanding! Moreover, it isn't uncommon to see judges hearing cases fully on merits and finally dismissing on the issue of standing.

  Also, the argument is kind of self-defeating. You write what you think the Supreme Court should do. You do so (presumably) in the hope (or knowledge perhaps?) that the concerned judges of the Supreme Court will actually read it. In case they do read it, why should they allow themselves to be influenced by you (i.e. someone who is not a party to the court proceedings – obviously I don't intend this as an affront to your academic qualifications and I hope it isn't construed that way!)? To their credit, the private party appellant's in Naz did bother with filing the appeal!

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• Thanks for this thorough analysis Vikram. I'm sympathetic to your argument. I do worry though that it would leave open a potential challenge down the road – for example, what would happen if another government came in next year and decided to challenge the High Court ruling? I presume they would have standing to do so? I've mentioned this before, but I think the larger procedural issue the Naz bench has to deal with is that it is not five judges, which under the Constitution it really should be if this indeed is a "substantial" question of constitutional law (and I don't see how it's not). Not being five judges opens up anything these judges say to a challenge later on.

  The other commenter's concern about you expressing in a public forum how you think the case should come out I think is unwarranted. The public and academic community should be aware of different ways the case could come out and the merits of these different paths. If someone wants to advocate for one such path anyone else is free to disagree. This is not a murder trial where there is a presumption of innocence for the accused. Instead, we are debating laws and principles that are of wide public importance. Normative arguments focus the mind in a different way than descriptive analysis. They are also far more interesting to read.

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• @Nick – fair enough. I agree that academic debate on a constitutional question isn't quite the same as the Press prejudicing a murder trial – an exaggeration at my end perhaps. And as I said, academic criticism is always helpful and I'm a regular reader of this blog for that reason. I usually find your blog's posts very good reads and insightful, but on the rare occasion (such as this once), I do find a post to be slightly over the top in terms of how the argument is pitched – so I thought I should point it out this time.

  I do, however, have other concerns about the substance of Vikram's argument:

  1. As you point out, a dismissal on the issue of standing leaves open the issue for future challenge (as does a decision by a 3-judge bench).

  2. Vikram's premise seems to be that if the government/executive has chosen not to appeal and the legislature chose not to react to the Delhi HC's decision, then the SC should not entertain an appeal from private parties who were strangers to the HC litigation. I think there are two problems with that.

  Firstly, it is likely that the private parties now on appeal before the Supreme Court did not feel the need to intervene at the High Court stage, because the government was arguing for Section 377's validity before the High Court, i.e., the private parties' interests were being adequately represented by the government. The need to intervene came after the Union Government's decision not to appeal.

  Secondly, and more importantly, the argument ignores ground realities about how governmental decisions are usually made in India regarding whether the government should file appeals against adverse court judgments. In general, the machinations are quite opaque and often haphazard. Naz was an exception in terms of how much public attention was given to the government's decision making process on whether to file an appeal. Allowing private party appeals is perhaps one way of ensuring that case which should be taken up on appeal, are (in spite the government's failure to do so). I am aware of Nick's work on the SC's docket explosion, but I think restricting private party appeals as regards important constitutional questions isn't the best of solutions to that problem.

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• Another related issue is the nature of the power exercised by the executive while deciding on whether or not a appeal a decision.

  At first blush, it does appear to be a quasi-judicial power that ought to take into account all related interests, perhaps even issuing a public notice for a hearing in a few cases, before a decision on the appeal is made. While I am unaware of the practicability or otherwise of such an elaborate-sounding process, I'd think that that is what is ideal.

  In this case, IMO, the ideal course for the appellants in the SC case would have been to represent to the Union of India as to why they think the decision to be appealed, and then approach the administrative review Courts if they are still aggrieved by the decision of the executive on whether or not to appeal the decision – or apply for a certificate to appeal from the HC.

  With respect Nick, I am in agreement with Vikram that the Court should not disturb what appears to be a settled position on the requirements of locus standii for invoking the Appellate jurisdictions of the SC only because it may be desirable to close the doors against a potential challenge down the road.

  The executive's power to decide on the question of appealing against a decision is particularly interesting in the case when we see that the State has been equivocal in its stance at different points – with Health Ministry and Home Ministry taking different stances before the Delhi HC; the Home ministry doing a U-turn before the SC etc.

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• Very Nice piece and very well written.

  My one concern is that I am not sure on the impact of the decision in other state jurisdictions, when one High Court decides that a provision in a central act is unconstitutional, and other high courts do not pronounce on that issue.

  My understanding (subject to correction) is that the decision is valid in other jurisdictions as well till the time their High Courts do not come up with a contrary decision. From that perspective a decision from the SC is desirable.

  Although I do completely agree with Nick that at least a five judge bench was needed in this case. If this is not a substantial question of law on the interpretation of the constitution, nothing is.

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• I would like to raise three issues. Firstly, although the power to prefer appeal is quasi judicial in nature. It does not follow from the same that the actual decision to exercise the same is also quasi judicial. As a matter of fact, the actual decision to prefer an appeal is purely administrative in character, the reason being ‘right to prefer appeal ‘ is a Constitutional / Statutory right and is vested exclusively in the Parties and the same has to be exercised in accordance with the provisions of the constitution ( Articles 132-135) . In ‘Hohfeldian terms, it is ‘power’ exclusively vested in the State and therefore it is not subject to judicial review on the ground of violation of principle of natural justice or Wednesbury grounds. I am also not too sure whether one can challenge the decision of the State not to prefer appeal by invoking the doctrine of arbitrariness under Article 14. It is of course necessary to note that Article 136 of the constitution is an exception to this proposition and there is nothing in that Article which precludes the Supreme Court from entertaining appeals from the third parties.
  Secondly, decision of one High court is not binding on other High Courts and the Principle of stare decisis does not have any play and if therefore Supreme Court were to dismiss the appeal merely on the ground of lack of locus standi, uncertainty would be perpetuated. Moreover, it is sheer intuitive assumption to contend that decision of a particular High court would be applicable throughout India till the contrary view is taken by some other High court.
  Thirdly, it is not a very efficacious argumentation to constrict the jurisdiction of Supreme Court under Article 136 by drawing analogy from Public Interest Jurisprudence evolved by it. In my opinion the reach and objective of epistolary jurisdiction under articles 32 and 136 is markedly different.
  Sanjay Jain ( I would like to acknowledge the interesting discussion i had with Dr. Shirish Deshpande)

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• Vikram,

  Not a jurisdictional comment – but would like it if you could share your thoughts on paragraph 43 of this Koushal decision (I do not thin k we should call it the Naz judgment any more).

  I wonder paragraph 43 now paves the way for the Supreme Court to abdicate its responsibility using the 'small fraction of population' line.

  Best

  Nutty

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