The previous post ended by speculating about the reactions of judges – especially those who are regarded as more ‘activist’ – to the caustic remarks of the Mathur-Katju bench on judicial activism in the Aravali Golf club case. Today’s papers are reporting a number of diverse responses from judges at the Supreme Court and the Delhi High Court. At the Supreme Court, the reactions of pro-PIL judges has been swift, though different strategies have been adopted. The judges on the current bench who have recently been identified as favouring ‘activist’ approaches have most prominently been Justices Arijit Pasayat and SB Sinha, and it is interesting to note that both judges have reacted quite quickly and directly. A bench consisting of Justices Pasayat and Sathasivam, while deciding a case relating to a labour/employment dispute, is reported to have reacted to the Aravali Golf case ruling as follows: “The only thing in a judge’s decision binding (on) a party is the principle upon which the case is decided,” said the court, adding that it was important to analyse a decision and isolate from it the observations. Underlining that observations made by courts “must be read in the context in which they appear to have been stated”, the bench comprising Justices Dr Arijit Pasayat and P Sathasivam said: “Observations of courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context.” While judges may embark on lengthy discussions to interpret words, phrases and provisions of a Statute, the court said, this was “meant to explain and not to define”. “Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes,” the apex court reminded.” The Pasayat-Sathasivam bench is thus taking the technically correct stance that the observations of the Mathur-Katju bench on judicial activism were purely obiter. In other words, those observations were not necessary to decide the facts before the Court in that case, and do not therefore, have precedential authority for future cases. This is of course true, because, as we saw in the last post, the Aravali Golf case was a service matter and did not arise from a PIL; arguably, the facts there did not involve ‘judicial legislation’ at all. A bench consisting of Justices Sinha and Bedi is reported to have taken a more aggressive stance (though some newspapers – such as the Telegraph – have misconstrued this as a cautious response). The Hindu describes the proceedings before that bench as under: A two-judge Bench of the Supreme Court, dealing with a public interest litigation petition since 2004, has referred the matter to Chief Justice K.G. Balakrishnan for being posted before a larger Bench. It has apparently taken note of a judgment by Justices A.K. Mathur and Markandey Katju, who on Monday said the judiciary must show restraint. The Bench, consisting of Justices S. B. Sinha and H.S. Bedi, was hearing the PIL petition filed by a non-governmental organisation, Prajwala, seeking guidelines for rehabilitation of victims of immoral trafficking after “they are rescued from brothel homes.” The court in 2004 issued notice to the Centre and the State governments and the matter was at an advanced stage of hearing. When it was taken up on Tuesday, Justice Sinha told Solicitor-General G.E. Vahanvati, “In view of yesterday’s [Monday’s] developments which we came to know this morning,” larger issues were to be decided in this case and hence “we are referring it to the CJI.” In essence, the Sinha-Bedi bench is pointing out the problem of a 2-judge bench having questioned modes that have become conventional methods in the Supreme Court. (In the comments section to the previous post, Dilip draws attention to this and the fact that unlike the US Supreme Court which sits en banc, our own apex Court operates essentially as a series of 10-12 co-ordinate courts sitting and deciding cases separately, although all such decisions are considered decisions “of the Supreme Court of India”). By referring the matter to the CJI, the Sinha-Bedi bench is signaling the need for a coherent institutional response to the issues raised by the Mathur-Katju bench. This is also interesting because the case before the Sinha-Bedi bench appears to be of the kind which is the focus of the Mathur-Katju bench’s observations. Here are more details about the facts of the case before the Sinha-Bedi bench (from the Hindu’s report): The petitioner submitted that in the country over 23 lakh women and children were trafficked in for commercial sexual exploitation. More than 25 per cent of them were children. Giving details of how poor women and children were lured into the trade on the promise of a better life in cities, the petitioner said, “After the initial rape and the consequent exploitation in slavery-like conditions, the victim starts believing that this is her fate.” The petitioner pointed out the problems faced by sex workers faced after they were rescued, and sought framing of a Victims Protection Protocol. There should be penal consequences for non-compliance by authorities and it should be made mandatory for the governments to incorporate guidelines on proper rehabilitation of sex workers. These would include putting in place a training-module to sensitise police, judiciary and government personnel involved in the rescue and rehabilitation of victims of trafficking. The obiter observations of the Mathur-Katju bench appear to have caused considerable consternation among its other target audience: the judges of the High Court of Delhi. The Telegraph reports the reaction of Justice Mukul Mudgal as follows: Justice Mukul Mudgal deferred a case relating to begging till February 8. He said he did not want to hear the case till he had seen the Mathur-Katju judgment. Several of the verdicts criticised by Mathur-Katju were Delhi High Court rulings, including some on begging, nursery admissions and demolitions. Zee news reports that Justice Gita Mittal of the same court took a different approach (mirroring, in some ways, that of the Pasayat-Sathasivam bench): Justice Gita Mittal rejected a submission made by DDA’s counsel Rajiv Bansal that in view of the apex court’s observation, the court should refrain from hearing the matter relating to constructions on the Yamuna banks. Justice Mittal, while rejecting the counsel’s plea, said that nowhere the judgement had said that courts should not entertain the petition relating to violation of Article 21 (Right to Liberty). “Court cannot remain silent looking at the plight of the citizens and the pathetic conditions of the city,” she observed, while reminding the counsel that court intervene when the DDA failed to discharge its duties. As these diverse orders point out, reactions to the observations of the Mathur-Katju bench have been swift and pointed. While the substantive issues raised are not new, the way in which they have been raised is certainly novel. This episode also raises the question of how courts should go about correcting their course, assuming that there is consensus that such a correction is required. Given these complexities, I for one was a bit surprised at the quick endorsement advanced by the editorial team of the Indian Express for the views of the Mathur-Katju bench. My own view is that the substantive debate, while important, may have to wait till the immediate problems caused by the Mathur-Katju bench’s gratuitous observations are sorted out. I remain doubtful if the course of action they chose to make their case was the correct – or justifiable – one.
Beginning slightly off the immediate point, how true is it that obiter observations are not binding? There are SC cases where even the obiter of Supreme Court decisions has been held binding on High Courts. Does a different rule apply to the Supreme Court? If so, what is the rationale? It is interesting to note here Nani Palkhivala’s views (and I think Seervai’s also) that a judgment consists of 3 aspects – ratio, obiter and other observations. The distinction between the 2nd and the 3rd is not very clear to me, but it appears that obiter includes those observations not necessary for the decision, but nonetheless in some manner connected with the issue at hand.
More importantly, turning to the issue of judicial activism, is “law making” necessarily outside the judiciary’s function (as opposed to the judicial function)? The traditional argument is, of course, lack of accountability – can it be argued, however, that an adversorial process tries to guarantee that the ultimate decision will be after due deliberation, and therefore the fact that the decision-maker is not accountable is irrelevant?
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