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By affixing their names to their judgments, judges across the Common Law world also take personal responsibility of their decisions, and this, to some extent, prompts them to decide consistently.
Earlier this month, the Supreme Court passed its judgment in the contempt proceedings against noted activist and lawyer, Prashant Bhushan.
The verdict perhaps comes as a shock to many, but what is more intriguing about the judgment of the Court is the name of its author, which is made conspicuous by its absence.
Recall that about nine months ago, the media was abuzz about a similar absence in the judgment of the Supreme Court in the Ayodhya Temple dispute. This may seem trifling at first, but it may be relevant to examine the significance of the way different courts around the world pass judgments or opinions in disputes before them.
Traditionally, judges, especially of Constitutional Courts in England and former British colonies wrote seriatim judgments. What this simply means is that each judge who heard a case wrote her own judgment, including her reasons for reaching a particular conclusion or outcome (think Kesavananda Bharati, Maneka Gandhi, Sabarimala, the Triple Talaq case and so on). The observers would then have to sift through all of them to find the common thread of the reasoning of the court or the ratio decidendi. It is the ratio decidendi that is binding precedent.
This was as opposed to per curiam judgments, which is usually the way judgments are passed in continental law countries. There are no dissenting or concurring judgments in these countries. There is just one judgment of the court, and it is for this reason that the identity of those who comprise it is not particularly important. There are therefore, no names of any of the judges on these judgments. The decision in a case is the judgment of the court and not of Justice A or Justice B speaking for the court.
Take decisions of the Cour de Cassation in France, for example. Its judgments are brief, often not exceeding a few hundred words, offering no scope for the judge to “discover the law” through her judgments, and with no indication as to who the author is, as is done in Common Law countries.
Critics of the seriatim style of writing judgments argue that these additional judgments (concurrences and dissents) serve no purpose, and on the other hand, confound the observer with multiple reasons that add no value to the majority judgment, and make it difficult to ascertain the overall ratio decidendi in the case. A statute in Pennsylvania in 1845, for example, had even prohibited the publication of any dissenting opinions in the official court reporter.
It is also argued that the majority judgments in these cases become less authoritative. Separate judgments poke holes in the majority decision, highlight the indeterminacy of the law, and open the court up to greater scrutiny and questioning. They also “distract” in that they focus attention on individual judges rather than on the institution.
On the other hand, it is believed that per curiam judgments are more forceful and powerful than seriatim decisions, and this is in significant part due to its unanimity. Take Brown v. Board of Education, a decision of the Supreme Court of the United States that unanimously held that State laws establishing racial segregation in public schools were unconstitutional as they violated the Equal Protection Clause under the Fourteenth Amendment of the US Constitution. It didn’t, however, start out this way.
S Sidney Ulmer in his 1971 piece Earl Warren and the Brown Decision published in The Journal of Politics, examined how Brown was on the brink of a radically different outcome than what is known to the world today. The case had come before the US Supreme Court in June 1952, during which time Justice Fred Vinson was Chief Justice of the Court. The Court in Brown had to decide if it was going to affirm Plessy v. Ferguson, a decision of the same Court, which had not found anything unconstitutional with segregation and the doctrine of “separate but equal”.
From conference reports, it appeared that Justices Black, Douglas, Burton, and Minton were likely to overrule Plessy, while Chief Justice Vinson, and Justices Reed, Frankfurter, Jackson, and Clark were likely to uphold it. Had things stood thus at the time of the final opinion of the Court, Brown would have likely upheld Plessy and found nothing unconstitutional about segregation in public schools.
In a cruel, yet fortuitous twist of fate, Chief Justice Vinson suddenly died of a heart attack on September 8, 1953, before the Court delivered its opinion in Brown. President Eisenhower nominated Earl Warren, a celebrated jurist and Governor of California, to be the next Chief Justice of the United States. Chief Justice Warren, in inheriting the yet undecided Brown, could not fathom how any human being could be denied the rights given to others based on the colour of their skin.
With his arrival on the bench, Plessy would have likely been overruled anyway given that there were now five Justices leaning in that direction. However, he did understand that a decision in Brown overruling Plessy was sure to have significant (and possibly violent) ramifications in the country, especially in the states that vehemently resisted integration. Despite there being a majority of judges who were likely to overrule Plessy, it was still essential to him, therefore, that the decision of the Court be unanimous to add to the force and power of the opinion of the Court.
The task ahead for Chief Justice Warren was to then bring the now four Justices who were likely to uphold Plessy around to his point of view. He opened conference with a trenchant and dispassionate argument about the rule in Plessy being simply unreasonable, contrary to the dignity of humankind and most importantly, unconstitutional. Ulmer states that by taking the position that segregation by race could only be justified by a belief in the inherent inferiority of African-Americans, Chief Justice Warren forced the Justices with views opposing his to show that this was not the case. While it was not easy in the least, Chief Justice Warren, after several rounds of deliberations with the Justices opposing him, was able to secure unanimity in the decision in Brown. On 17 May, 1954, in a unanimous 9-0 decision with just one opinion of the Court authored by Chief Justice Warren, Plessy was overruled.
The seriatim approach of writing judgments, however, does have its advantages too. Scholars like Barry Friedman and Anny Harvey suggest that while per curiam decisions give great clarity on what the law is now, in a system where the law is so dynamic, seriatim judgments also give clarity on where the law is headed. Additionally, dissents have had their own significance, in many cases subsequently replacing the reasoning in the majority judgment as the law of the land (think Justice HR Khanna’s dissent in ADM Jabalpur).
Seriatim judgments also afford greater transparency in judicial decision-making, as the observer is aware of the deliberations of each judge. By affixing their names to their judgments, judges across the Common Law world also take personal responsibility, in a sense, of their decisions (including the ones they may not write themselves but to which they attach their names) and this to some extent engenders them to decide consistently should similar cases arise before them in the future.
Per curiam judgments are not absent from the Common Law world, but they are extremely rare. They are also usually passed in politically or socially sensitive cases, like Bush v. Gore 531 in the US or the Ayodhya judgment in India. These decisions are more difficult to overrule, as we are unsure if different members of the bench reached the same outcome for different reasons (think the plurality in the Triple Talaq case).
In May of this year, former Chief Justice of India Ranjan Gogoi, when asked about the author of the Ayodha verdict remarked, “Why does a judgment need to have an author?” Mr. Gogoi (in his first public interview as a Member of the Rajya Sabha insisted on not being called Justice Gogoi) is technically right. There is no law that requires a judge to affix her name on her judgment.
However, it may do us well to remember the role of a Constitutional Court and a final court of appeal. There is a reason why judges of these courts seldom sit singly and usually sit in benches of two, three, in rare occasions five, and in even rarer occasions in our country, more than that. With just one member on the bench, there is a low chance of getting the outcome wrong.
However, with more members on a bench, with more discussion and deliberation, there is a high chance of getting the outcome right. It is crucial for the development of the law and for transparency in a vibrant and thriving democracy that the observers (which is just academic-speak for the common person) are able to fully view the journey of each member of the Court who heard a case in reaching a particular outcome, especially cases of constitutional or social importance.
It is less about judges taking credit for their judgments as Mr. Gogoi put it, but more about the members of the Court being transparent with and accountable to the observers for their interpretations of the laws that affect their lives, and in many cases, their fundamental rights.
The author is a practicing Advocate in Bengaluru. The views expressed are personal.