Sabarimala: It has become a very difficult problem, Fali Nariman [Watch Video in YouTube]
Fali Nariman had said this in the video:
Nariman was also critical of what he called the lack of “Collegiality” amongst Supreme Court judges.
“The importance of Collegiality amongst judges is a very important thing which I have found lacking. Unfortunately, the difficulty is when Supreme Court judges sit in Benches of three, five and seven. But they don’t sit and discuss as to what is to happen. Or that ‘you write for the majority and you write for the minority’. While that happens everywhere in the world, it does not happen here. They (Supreme Court judges) all come on the same day and pronounce the judgment. Nobody knows which judge has dissented [until then].”
We know that, not so long ago the present Chief Justice of the Supreme Court of India and three other then senior Justices had openly alleged that the then Chief Justice, being the Master of the Roster, was acting arbitrarily and assigning high profile cases to juniors and cold-shouldering the seniority of those peeved Justices! So much for the simmering that goes on within the Justices of the SCI. It also brings out an important point that the puisne Justices are not among equals qua the Chief Justice; secondly that there is an unwritten but a felt seniority and juniority among the puisne justices too. Consequently the only forum where they have a right is to register their opinion on an issue before them when they find themselves as a member in the bench.
From what Mr. Fali Nariman talks of Collegiality, one needs to understand the meaning of COLLEGIALITY. It derives from “Colleague”. Notwithstanding the root of the word, one has to see if a Justice of the Supreme Court of India, who has been vested with privileges and immunities and when being a member of a Constitutional Bench be bound by Collegiality or as Justice Oliver Wendell Holmes described “be as scorpions in a bottle?”
Predominantly a Constitutional Bench is set up to review an existing precedent or in any case to LAY DOWN A BINDING LAW for the times to come. Is it better that each Justice should articulate the legal grounds or the principles or even the weight of the exigencies on which he bases his ruling; or to use his authority as a Justice of that bench and concur with the majority or dissent therefrom and be a footnote to that judgement authored by another Justice?
I believe that the former is better for a democracy which is built by the people brick by brick made of the reasonings given, emphasis laid, and delivered through those binding judgements.
As per an article titled UNDERSTANDING COLLEGIALITY ON THE COURT
by Frank B. Cross and Emerson H. Tiller, “…After a majority opinion author is assigned, he or she circulates a draft opinion, after which other members of the Court circulate bar- gaining statements, agreeing to join the opinion if certain changes are made.Subsequently, a Justice may circulate a dissenting or concurring opinion in hopes of persuading other members of the Court, or affecting the content of the majority opinion, and this action is not
The above is based on the American model, where the ideological leanings are openly stated and mostly reflected in their rulings.
Of course, there is a space where the justices could confabulate on the perspectives and opinions articulated by the justices before delivery of the majority opinion, but doing so in the private would not be an ideal situation as how much pressure could be brought on puisne justices to go with the majority could become a matter of speculation in the media.
Supposing a justice were to take a position and later gets ‘convinced’ by the persuasion of a minority opinion Justice and if it were to tilt the verdict pronounced in the court earlier, the principle of pronouncing in the open court would be a travesty.
Alternatively, if there were to be a lone dissenting Justice and if he were to change his opinion after collegial confabulations the judgement would become a unanimous one, without the point of dissent neither brought out in the judgement nor explained on what line of reasoning the change of mind took place.
One cannot lose sight of the fact that our system is adversarial and in the name of dispensing justice the role of the courts shouldn’t compensate for the inadequacies of a lawyer and thereby make the adversarial system an inquisitorial one.
I personally feel that it would be best to leave each justice to hear and clarify points in the open court but when the pronouncing of the judgement takes place, each should present his perspective and the basis of his/her opinion so that even an observer would feel that justice was indeed done. This collegial confabulation may not be the best for our system especially because of the variegated culture and different priorities of each state.
November 28, 2018