Musings on the Supreme Court-I Narasimhan Vijayaraghavan–While Musing on the Constitution, one had occasion to indulge in a lot of research. Before any one pounces on me, I admit that I am assuming no scholarship for the effort. As George Bernard Shaw put it, ‘reading wide is different from reading deep’. The width only puts you on notice of a lot more than you are wont to know. It is deep learning that makes you a scholar. Mine was concededly wide reading that let me in on a lot of

Musings on the Supreme Court-I
Narasimhan Vijayaraghavan

While Musing on the Constitution, one had occasion to indulge in a lot of research. Before any one pounces on me, I admit that I am assuming no scholarship for the effort. As George Bernard Shaw put it, ‘reading wide is different from reading deep’. The width only puts you on notice of a lot more than you are wont to know. It is deep learning that makes you a scholar. Mine was concededly wide reading that let me in on a lot of information, which I readily shared as if partaking in stolen spoils. Inevitably, as the study related to our Constitution, it took me to the United States of America too .Their Constitution is the shortest and oldest and lasted far longer than any other.

The formation of their Supreme Court owed to a statute of Congress- The Judiciary Act of 1789. The formation of their Supreme Court tells fascinating stories. We read the names of George Washington, Alexander Hamilton, James Madison and John Jay, not to forget Benjamin Franklin, the elder statesman. One interesting nugget that stood out was that these men who talked eloquently and evocatively of “All men are born equal’ were not beyond owning slaves attached to their ‘farming estates and homes’. What of the Supreme Court judges, one wondered?

One thing led to another, as it may now be your turn to be bombarded with another of these musings. This time- Musings on the Supreme Court. Obviously, I shall relate the stories to the US, United Kingdom and other democracies with ours occupying possibly the pride of place. Aware of the overlap in the Constitutional journey, effort shall be made to confine these Musings to all things Courts and Judiciary. Inevitably, the story has to begin with the formation of the US Supreme Court- Supreme Court of United States- SCOTUS for short, and interspersed with the others, to retain what little interest one can aim for, for it is reported in a recent Havard study recently that the ‘attention span of visitors to Blogspots is 4.5 seconds’ ( not even minutes).”From this number, Donald J Trump would be a voracious reader’, mocks an academician.

One striking feature or the difference between SCOTUS and any other Supreme Court in a democratic polity, is that Justices on SCOTUS get appointed for life time.’ Once appointed ever in office until death do them part’, observed Justice Paul Stevenson, before he chose to retire after a term in office since Dec,17,1975 to June,29,2010 ( 35 long years), and he died on July,16,2019- all of 99 years, having been born on April,20,1919.The result is that we have the (John Marshall era , (Earl) Warren era, (William) Rehnquist era and now (John) Roberts era , in the name of the Chief Justice presiding. They have a long reign to plonk their stamps and imprimatur.

In comparison, our Chief Justices do not have such a long reign. More importantly despite Justice Felix Frankfurter’s advice to Prof.B N Rau for India to have a Supreme Court at the apex, like the US with a permanent Justiceship of The Nine, who may sit together to hear constitutional issues, all together, our framers chose a different model. Here, we have the spectacle of the Parliament enabled complement of 34 justices sitting in Benches of 2,3,5 and so on. Only in Kesavananda Bharati case, in 1973, the entire Bench strength of 13 sat to hear the cause celebre.

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UK Supreme Court-Full Court- hearing Brexit Case

Such ‘split bench sittings’ as Harish Salve once called it, has led to conflicting decisions between co ordinate Benches, leading to ‘confusion confounded by uncertainty’. There are instances galore of the apex court being compelled to ‘make references to larger benches to sort out the differences’, between one bench and another. Interestingly, the Supreme Court itself has never hesitated to come down heavily on the High Courts for forsaking judicial discipline in the matter of precedential jurisprudence.

That seamlessly leads to an intriguing and interesting topical detour.Let us tuck into that decision with a Pandemic connect to boot. By orders dt.19th June,2020, three Justices in Ashok Bushan, M R Shah and V Ramasubramanian ( with a Madras High Court connect) ,set aside the orders dt.11.05.2020 of a learned single judge of the Madurai Bench.It makes such remarkable reading even to those with no law connect. That is the beauty of law. It is in your life and on your face, no matter what.

We have heard of the famous Lord Denning vs Lord Diplock tangles in England. Or Justice Antonin Scalia vs Ruth Bader Ginsberg (best of friends) or Samuel Alito vs Stephen Bryer, in the US of A, and a whole host of them. We also recently experienced ‘split bench sittings’ leading to a marvellous turf tussle on the precedential preferences between a Bench of Justice Madan Lokur (retd) and Justice Arun Misra (slated to retire shortly). We will remember to muse on it too.

Closer home, before the Madras High Court, one remembers ‘Justices Sathiadev and V Ratnam answering each other through their judgments as epistles’ as Senior Advocate S.Sampathkumaar alluded to it. This is new and novel. But, surely not unheard of. Truth is that the Supreme Court has not taken kindly to it, when it comes from the High Courts, though they themselves have not been beyond such tangles. ‘The Judgment factories or Justice market is never short of drama and when the Judges fight they need to be cautious as the grass beneath would be the litigants’ cause”, remarked Justice V R Krishna Iyer.

To get to Kasi/Settu territory, brief facts can be encapsulated as- Kasi was arrested on 21.02.2020.He moved the Madurai Bench for bail contending that there was a delay in the charge sheet being filed as it was 73 days, and beyond the mandated 60 days, and hence he deserved to be bailed out. Reliance was placed by the detenu on the orders of a learned single judge in Settu vs State that ‘default bail’ was not interdicted by the orders of the Supreme Court dt.23.03.2020 in Suo Motu proceedings keeping in abeyance ‘limitation’ period during the Pandemic times. In Settu, the learned single judge took the expansive view that in the matter of ‘personal liberty’, which was sacrosanct, a la Justice Fazal Ali’s famous and prescient dissent in A K Gopalan in 1950, restrictions cannot be read into the order of the apex court. Bail was granted to Settu. In Kasi, the learned single judge was not buying this line. He was of the view that the orders of the Supreme Court dt.23.03.2020 on the issue of limitation, could be tapped into by the State, to explain the delay in filing the charge-sheet and as such ‘default bail’ was not on.
If the learned single judge had stopped in his tracks with this distinction, probably the ….

(Author is practising advocate in the Madras High Court)