When Judges Play A Drawn Game, Everyone Loses

Like wheels within wheels, there are pleas within pleas – ‘custody parole’ for AIMIM candidate, Tahir Hussain, to campaign for the Feb 5 Delhi elections is one example. Accused in 2020 Delhi riots case and behind bars for 5 years, his plea to Delhi HC for ‘normal bail’ was dismissed. He was allowed ‘custody parole’ (out of jail for 12 hours daily). Hussain challenged the order in Supreme Court. A two-judge SC bench gave a split verdict – that means two opposing views on the same legal questions.What’s the challenge of two-judge benches?Such inconsistency in judicial decisions is not only confusing for the public, but also reflects poorly on judiciary. Split verdicts are delivered by two-judge benches. A larger bench of an odd-number of judges next hear the case or a referee judge will decide the tie-breaker. In Hussain’s case, a three-judge bench allowed him ‘custody parole’ from Jan 29 to Feb 3.Luckily for Hussain, the decisions came back-to-back. Luckily, if it can be called that, Supreme Court’s recent decision on a Chhattisgarh tribal Christian’s burial too was settled quickly, if unusually, following a split verdict. Here, one of the two-judge bench allowed the other’s verdict to hold, regarding where the deceased would be buried: on his ancestral grounds or a Christian cemetery. Unusual because judges kept in mind the trauma their split verdict would inflict on the family. But point is, as read by the judges, both locations for burial could be upheld by law.Why does a split verdict matter?These two recent cases are lucky breaks of instances where judges have differed but cases speedily resolved. It is seldom so. Last Jan, a Bombay HC bench was divided on striking down amendments to IT rules that allowed Centre a ‘fact check unit’. The case went into limbo. It wasn’t till Sep that a tie-breaker judge struck down the amendments disallowing said fact check unit.Although there is little study on how long split verdict cases take to be finally resolved – legal website SCO suggested 2 years – split verdict cases simply move off main gauge onto a slow track.Chandrababu Naidu, accused by Jagan govt of a skill development scam and following Andhra HC’s dismissal of his plea to quash an FIR, moved Supreme Court to kill the case. In Jan 2024, a two-judge bench was divided in its opinion on application of sections of Prevention of Corruption Act. The matter went to CJI to constitute a larger Bench, where it has been since. Naidu returned to CM’s office in June 2024.Do major issues get waylaid by such differences?Criminalising marital rape is among most contested issues awaiting Judgment Day. Petitioners in 2022 challenged the exception provided to marital rape in IPC that was carried on into BNSS. A two-judge Delhi HC bench heard the case. One held the exception unconstitutional, the other upheld its validity. The case is hanging fire in Supreme Court.Take the hijab case – following Bombay HC’s split verdict in 2022 on whether asking schoolgirls to wear or not wear hijab on school premises is kosher, the matter reached Supreme Court, where it’s yet to come up. Bottom line: When judges are undecided, people suffer. Both these cases deal with autonomy of women and their access to education and justice. All such cases, as TOI has always argued, must be settled within a reasonable period. This is not to hurry but to prioritise the issues that are simply allowed to fester by courts. Dramatic split verdicts: Crime & Punishment Not really, because as noted, even bail hearings result in differences. Take, for instance, bail for former Bengal minister Partha Chatterjee, in judicial custody since 2022 in a money laundering ED case. His bail is slated to start tomorrow, Feb 1, granted by Supreme Court that gave a deferred bail order on Dec 13. But he may not be released since he is in CBI custody on the teacher recruitment scam case.Calcutta HC was the third bench to hear Chatterjee on the CBI case. It rejected his bail plea. The first division bench gave a split verdict – one said yes, the other no. A referee judge concurred with denying him bail. The matter was then heard by Calcutta HC.Even murder cases throw up split verdicts. Calcutta HC in July 2024 baffled both prosecution and defendant with one judge setting aside session court’s death penalty with 30 years jail, while the other ordered an outright acquittal. This, after the convict had been on death row since Sep 2023. It is now for Calcutta HC chief justice to decide on the case.No time was wasted in deciding Yakub Memon’s last ditch plea to stay his execution. Supreme Court gave a split verdict on July 29, 2015. One judge upheld the execution, the other favoured a stay, arguing proper procedure hadn’t been followed. A three-judge bench met with alacrity within hours – at 3am on July 30, 2015, to unanimously dismiss Memon’s plea. Memon was executed at 7am in Nagpur Central Jail.Going further back to a 1995 custodial case that dragged till 2023, one Supreme Court judge acquitted police officers of culpable homicide on ‘benefit of doubt’. The other was for conviction basis evidence of custodial torture. What’s the way ahead?Given perception of an uptick in split verdicts, of repeated concerns of forum shopping, of inefficient interpretation of law, Supreme Court and high courts must ensure that split verdicts are quickly followed by a judicial decision. Split verdicts, when not speedily settled, amount to justice stalled.