Recently, the Honourable Chief Justice of the Supreme Court, DY Chandrachud has made a point that to make the judgement, passed in the Ayodhya case popularly known as the Ram Janmabhoomi case, the judgement of the entire Supreme Court, the name of the author of the said judgement has not been disclosed.
Therefore a question has been raised, does the CJI want to indicate that the judgement of a court, that bears the name of the author judge, cannot be considered as the judgement of the entire court?
Thus, the present curiosity petition has been initiated by Dipanjan Ghosh and Siddhant Sharma to discuss the same questions.
Dipanjan Ghosh
Dipanjan Ghosh has submitted that the owner of the copyright of a judgement is the State, namely the judicial organ, therefore whosoever writes the judgement, the judgement would belong to the public at large. He has referred to the public statement of CJI where he said that a judgement is a public property.
He was posed with the question of who is the owner of a minority judgement, is a judge, who authors the minority judgement the owner or the court, since a minority judgement does not represent the binding view of the court?
Dipanjan has answered the same that a judgement is a public property henceforth there is no difference between minority and majority judgement insofar as the owner of the copyright of the judgement is concerned.
Siddhant Sharma
Siddhant Sharma has opened his argument by answering the question of who is the copyright owner of a minority judgement. He said that, for the purposes of Article 141 of the Constitution of India, the majority of the judgement would be the applicable and binding law, however as said, the minority judgement is guidance for the present and vision for the future. He argued that minority judgments are, in essence, an unbinding but persuasive opinion of a jurist. He says that a minority judgement can be taken as an academic paper, however, the majority judgement is the law insofar as its directives are operative the violation of which, would constitute contempt of court.
Siddhant submits that there is not so much practical difference between a judgement disclosing the name of its author, and the judgement not doing so. He argues that at the end of the day, the consideration is whether the judgement is a precedent or not but not who is the author of such precedent. He argues that the disclosure of the name of the author of a judgement is a mere attribution because it may be the case that the judge is authoring the judgement on behalf of the other judges, hence the ideas and expressions may not be, in its entirety, belonging to the author of a judgement. He finally argued that the question is attractive but is devoid of practical force.
The Collective View of The Drain
At the start, we want to make a point that a judgement is not merely a law but also a guiding book, for the present, to follow and for the future, to decide its correctness.
The Drain takes conscious notice of the fact that there are instances where the minority view has become the law while the one of the majority has been overruled, therefore, we while deciding the question apart from taking note of the respective submissions do have to use our own repository of knowledge and mind, to arrive at a fair conclusion.
We do take note of Article 145(5) of the Constitution of Bharat, which, in essence, says that the majority judgement would be considered as the judgement of the SC however that shall not prevent a judge from dissenting from such a majority opinion.
The Drain takes note of the expression— 'the concurrence of a majority of judges present at the hearing of the case', used in Article 145(5) would go on to show that a dissenting judge has the right, none other than a constitutional right, not to conform with the majority. This whole scenario shows that freedom of speech, in its democratic value, is also secured in the field of judiciary as well, not only on the streets.
We notice the public statement made by former Justice S.K. Kaul who retired as the second senior-most judge of the Supreme Court recently. He said that a judgement is an opinion and thus the judges shall not be touchy when such judgement is criticised. We note the word opinion to have spiritual and intellectual meaning in this context.
The intellectual meaning is that a judgement is not an unchangeable divine mandate. The spiritual meaning is since a judgement is not unchangeable, it does not have any spiritual meaning; that is the spiritual angle of the word opinion. We, therefore, hold that a judgement is an opinion, that has been passed considering the facts of the case, and from a national perspective, considering the social circumstances prevalent at the relevant point in time.
We agree with the submissions of the respective counsels, that attributing a name to a judgement is a mere acknowledgement of the intellectual and spiritual hard work that a judge has undertaken while framing the judgement.
We answer the question that who is the copyright owner of a judgement by saying that a judgement is a public property therefore neither the Supreme Court/Judiciary nor the executive or legislature is the owner. They are the trustees holding the judgement in favour of the beneficiaries namely the citizens of Bharat.
We take public notice of the fact that to obtain a physical certified copy of any judgement, one has to pay the certified copy fees to the court, and therefore a judgement is a public property for generating public revenue in spite of the fact that soft copies are available for free.
We believe and hold that the Honourable CJI has impliedly said that the judgement, passed in the Ram Janmabhoomi case, has consciously omitted to mention the name of the author, thereof to make it a point that the reasons recorded for reaching the conclusion of the judgement are uniform amongst the learned judges and are shared by all of them, sans any objection.
The Drain also takes notice of the statement of the CJI, where he said that the Ram Janmabhoomi case involved years of conflict, and hence we infer therefrom that to remove any conflict of reasons but not conclusion, thereby to avoid concurring opinion but with different reasons, the Supreme Court has not disclosed the name of the author in the Ram Janmabhoomi case.
Therefore, we hold that the Ram Janmabhoomi case although a case based on conflicting claims as to legal rights, however, is also a case that involved the clash between two conflicting faiths, and the court was requested to resolve such conflict, and therefore, the Supreme Court, in its wisdom, thought to resolve such conflict by having one single voice of the 5 judges, and when there is one single voice of the 5 judges, there can not and should not be any single author qua the judgement.
We believe that the Ram Janmabhoomi case, although, began with a cacophony of kaleidoscopic faiths, voices and forces, the Supreme Court made a peaceful reconciliation of such cacophony, and in an attempt to do such, the name of the author was not and continues to be undisclosed.
The Drain believes that the non-disclosure of the name of the author of the judgement also indicates that, as said the Ram Janmabhoomi case did not only involve conflicting legal rights but also conflicting faiths, therefore it may be taken as a matter of inferential faith that the judgement of the Ram Janmabhoomi case reflects, not merely one single collective opinion of the five judges but also a singular collective faith of the judges regarding the reasons given by them for arriving at the well-known conclusions.
Why is Mr. Saha not writing..... Is there some problem between him and the drain?
ReplyDeleteThe person who has made this comment appears not having balls . The person in my belief is Mr Dipanjan Ghosh. He knows that the whole thing is written by me in consultation with the other two gentlemen. So, please do some serious business not such timid stuffs and for god sake, stop acting like a ninnyhammer. Written by the furious mind of me not the other one.
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