Supreme paradox: Inconsistency in the highest court

Recent remarks by Justice BV Nagarathna that judgments should not change with the change of faces highlight a worrying trend where issues having attained finality are reconsidered, albeit without any proper interpretive methodology.

Two Constitution Bench decisions delivered in 2025 — Rejanish KV v. K Deepa (on eligibility for direct recruitment to the district judiciary) and the Presidential Reference on Assent to Bills (on the scope of gubernatorial assent to State Bills) — highlight this issue aptly. Both judgments, operate in substance as reconsiderations of earlier binding precedent. Rejanish revisits and effectively narrows the ratio of Dheeraj Mor v. High Court of Delhi and related Article 233 jurisprudence, while the Presidential Reference re-evaluates a prior two-judge bench decision in State of Tamil Nadu vs. Governor of Tamil Nadu.

To further accentuate the issue, the two judgments adopt sharply divergent interpretive approaches - one purposive and contextual, the other strictly textual - without articulating reasons for that divergence.

The issue in Rejanish concerned the eligibility criteria for direct recruitment as district judges under Article 233(2) of the Constitution. Earlier cases, including Chandra Mohan v. State of UP, Satya Narain Singh v. High Court of Allahabad, the All India Judges’ Association and, most decisively, Dheeraj Mor had held that only practising advocates with seven years’ standing were eligible under the Bar quota. Under this textual interpretation, a judicial officer ceased to be an “advocate” upon entering service and, therefore, could not compete for the Bar quota, even if she had practised for seven years prior to joining service.

Departing from this understanding, the Constitution Bench in Rejanish held that an in-service judicial officer who previously had seven years’ standing at the Bar was eligible for direct recruitment. Further, the Bench held that eligibility is to be determined at the stage of applying for the post, not at the time of appointment.

This reasoning is purposive. The Court did not rely on the literal wording of Article 233(2), which says that a person shall not be eligible unless “he has been for not less than seven years an advocate.” In Chandra Mohan, the earlier Constitution Bench had clearly construed expression “the service” in Article 233(2) as judicial service. Thus, “[a] person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge” would necessarily mean that a person in judicial service shall not be eligible for appointment under Article 233(2).

The Court grounded its interpretation in the broader contextual purposes of Article 233 — strengthening the district judiciary, widening the recruitment pool, enhancing institutional capacity and ensuring merit-based selection. The Court emphasised the concept of independence of the judiciary and reasoned that greater competition attracts the best talent. This approach looked beyond the literal text to justify the decision.

The concurring opinion justified the treatment of constitutional silence as space for judicial elaboration. The text does not contemplate whether prior Bar experience can be counted after one enters judicial service. Instead of treating silence as prohibitory, the Court filled the constitutional gaps with purposive reasoning.

Even though the Court did not specifically refer to Article 142 of the Constitution, it issued directions to state governments for framing rules providing eligibility for candidates who are already in the judicial services and fixed the minimum age for candidates from the judicial services as 35 years. None of the above arise from a plain reading of the relevant provision.

The Constitution Bench in the Presidential Reference addressed questions relating to whether a Governor may indefinitely withhold assent to Bills passed by a state legislature and whether courts may impose timelines or infer an obligation to act expeditiously.

Articles 200 and 201 enumerate the Governor’s options when presented with a Bill but do not specify any timeframe for action. A previous two-judge bench in State of Tamil Nadu had imposed a requirement of “reasonable time,” grounded in democratic functioning and constitutional morality.

Rejecting this approach, the Constitution Bench held that the absence of express timelines in the constitutional text bars judicial insertion of such timelines. The Court held that to impose timelines or create a doctrine of “deemed assent” would amount to rewriting the Constitution.

This is strict textualism. The Court elevated the silence of Articles 200–201 into a constraint, reasoning that where the Constitution speaks in specific terms, courts cannot supplement it. While cases like Nabam Rebia or BP Singhal v. Union of India might have supported reading implied obligations into gubernatorial functioning, the Court refused to employ such purposive tools. The Bench held that democratic values cannot justify judicial supplementation of constitutional text. Silence here is treated as a prohibition, not an invitation to fill gaps.

Unlike the two-judge bench decision, the Presidential Reference opinion did not extensively engage with the drafting history or the Constituent Assembly debates. It avoided the context in which Governors were sitting over bills for unreasonably long time and focused on institutional boundaries and separation of powers rather than the broader democratic and federal context. The Constitution Bench was also highly critical on invocation of Article 142 in State of Tamil Nadu.

The two judgments adopt fundamentally inconsistent approaches to constitutional interpretation. In Rejanish, the Court interprets constitutional provisions purposively, reading into Article 233 larger institutional and functional objectives absent in the text. Constitutional silence is treated flexibly. In the Presidential Reference, the Court anchors its reasoning in the bare text and refuses to go beyond it. Silence is treated as forbidding judicial creativity.

The Court offers no rationale for when textualism is appropriate and when purposivism is warranted. In the absence of clear guidance, the interpretive method appears bench-specific and ad hoc. It is interesting that the both the benches were presided by the former Chief Justice Gavai. This unpredictability affects litigants, lower courts, and the clarity of constitutional law itself.

Without a clear framework reconciling these approaches, constitutional adjudication risks devolving into case-specific interpretive discretion rather than principled, coherent reasoning. To preserve constitutional stability and predictability, the Supreme Court must ensure not only that settled law is not upset by change of bench composition; it must also articulate a clearer theory as to when purposive reasoning is permitted and when textual adherence is required.

Amit Gupta is an Oxford and Columbia University graduate practicing in the Supreme Court and the Delhi High Court.