Gautam Bhatia mulling over mulligans

Gautam Bhatia, in a recent post, writes

In golf, there is something called a “mulligan“: that is, a “second chance shot when a golfer has hit a poor tee shot that they would rather forget!” Needless to say, mulligans cannot be used in competitive golf, but only in “friendly” games.

How is the mulligan relevant to this blog? It is because the Supreme Court, in its recent hearing of the Presidential Reference in Re: Assent, Withholding, or Reservation of Bills by the Governor and President of India, looks set to establish a previously unheard-of concept: a constitutional mulligan, which is granted solely to the central executive.

This is nonsense. Res Judicata means 'no do-overs'. Sadly, the Indian Bench is addicted to do-overs. Anyone at all can- and very frequently has- got a 'mulligan'. Consider the Sidhu manslaughter case. In 1988, Sidhu beat up an old man and ran off with his car keys so he couldn't get medical help. Eleven years later, he was acquitted of murder but in 2006, on appeal by the bereaved family, the High Court found him guilty of culpable homicide and sentenced him to three years. Sidhu approached the Supreme Court and got the matter stayed in 2007. In 2018, a two judge bench let him off with a small fine. The family of the slain man submitted a review petition- i.e. a do-over. Thus, in 2022 the Bench awarded him a one year sentence. Sidhu, being a Sikh and a gentleman, decided to do a spell of porridge to show he was a tough guy and felt remorse for a youthful error. So he did 10 months and emerged with a clean reputation. Otherwise, the game of mulligans- i.e. review petitions- would have gone on till the fellow died of old age. 

 May 2025, in State of Tamil Nadu vs Governor of Tamil Nadu, a two-judge bench of the Supreme Court interpreted Articles 200 and 201 of the Constitution, and – among other things – set timelines on how long – under ordinary circumstances – Governors and Presidents could “sit” on legislative assembly bills.

Article 145(3) of the Indian Constitution requires a minimum five judge Bench to hear substantial question of law regarding the interpretation of the Constitution. If the two judge bench sided with the Governor, the State of Tamil Nadu would have submitted a review petition. 

Very soon after this, the President of India invoked Article 143 of the Constitution to refer fourteen questions to the Supreme Court of India, under its advisory jurisdiction.

That was her prerogative. But the State of Tamil Nadu would not have sat on its hands if the 2 judge Bench had decided against them. One way or another there would have been a 'mulligan' or do-over.  

Now, it so happened, that eleven out of these fourteen questions were the subject matter of State of Tamil Nadu vs Governor of Tamil Nadu. Consequently, they had already been answered by a two-judge bench of the Supreme Court.

No. If they were constitutional questions, the two-judge bench had no authority to do so. It is a different matter that it could have given a judgment based on the facts. But the Supreme Court has no truck with Res Judicata even in such cases.  

Curiously, however, the entire Presidential Reference makes no mention of the judgment (which had been delivered a week before): it is as if the judgment did not exist, had never been delivered, and this was the first time that the Court was being asked to deliberate on these issues.

Gautam's 'curiosity' can only arise from ignorance. The President has acted correctly and in an apparently non-partisan manner. In any case, the ruling party at the Centre knows that tables may be turned on it soon enough. It makes sense to get a constitutional ambiguity thoroughly clarified. This means a minimum 5 judge bench.  

It should, therefore, quite obviously follow that if the President has put to the Court “questions” about what the position of law is, and the position of law has been declared by a previous judgment of the Court, then the only possible answer that the Court can now give is that these questions already stand answered, and refer the President to the precedent.

They can't because of Article 145(3). However, nothing prevents a 5 judge bench from amplifying the line taken by the 2 judge bench and, inter alia, dealing with a wide variety of possible scenarios.   

If the Court were feeling generous, it could even give some additional advice, to prevent such superfluities in the future: that if the President – acting on the aid and advice of the Union – disagreed with the outcome of a judgment, then the correct course of action would be to file a review petition, or – in a future case – ask for a reference to a larger bench.

The President is in a different position to Modi or Stalin or Sidhu or the relatives of the guy Sidhu killed. It is perfectly proper to get a Constitutional Bench to consider the entire matter.  

That is not, however, how the hearings in the Presidential Reference – which was argued extensively in August and September – proceeded.

Quite properly so. It seems the Bench understands Article 145 (3). Gautam does not.  

The bench brushed aside initial objections on the maintainability and propriety of hearing the reference,

what possible objection could there be? Does it have something to do with golf? Would Gautam be greatly surprised if he learned that the rules of golf have nothing to do with Judicial procedure?  

and then proceeded to conduct what can only be called a de novo merits re-hearing

it would only be called that by an idiot.  

(in its advisory jurisdiction) of the issues that had been decided a few months ago (by the same Court, exercising its regular, contentious jurisdiction). How did the bench justify this? During the course of oral arguments, two things stood out for how often they were repeated. First, the bench – headed by CJI Gavai – kept rhetorically asking if a “five-judge bench is bound by a two-judge bench” –

the answer was no. Sadly a seven judge bench is not bound by a five-judge bench. The Supreme Court's hatred of Res Judicata have turned it into a perpetual motion machine. That is why we feel respect for Sidhu. He preferred to go to jail like a man than participate in the farce that is Indian jurisprudence.  

and indeed, seemed to take affront at the possibility that the answer might be “in this case, yes.” And secondly, the bench kept repeating that it would “not look at the State of Tamil Nadu decision” while rendering its opinion.

Because that is what it was obliged, under Article 143. Gautam experiences great umbrage when Judges follow the law of the land, rather than the rules of competitive golf.  

Let us briefly look at both questions. The first – one almost hesitates to say – proceeds on a misunderstanding of constitutional law 101.

Indian constitutional law says only a 5 judge bench can decide on substantive issues involving the interpretation of the Constitution. Gautam does not understand this.  

Let us take an extreme example: five judges – or seven, or nine, or twenty-nine – go golfing together, and while they are taking their mulligans and trying to forget their bad tee shots, they start discussing the State of Tamil Nadu judgment. In doing so, are these five, or seven, or twenty-nine judges not bound by the judgment?

No. Nobody is bound by a court judgment save in some legal capacity. You are welcome to say, in private, and while engaged in a purely private leisure activity, anything you like about a particular judgment.  

Of course they are bound, because “5 judges >>> 2 judges” is not how it works.

How it works is that at least five judges are required for a ratio to be said to have constitutional import.  

Five judges are not bound by two judges

They may be if Res Judicata applies. But it can't in a constitutional matter.  

if and when those five judges are in a bench that is exercising the same jurisdiction as the previous two-judge bench was.

Speaking generally, it is a matter for the Judges presiding whether and to what extent Res Judicata applies. This, itself, may be a justiciable matter. But, then again, it may not.  The plain fact is Judges have powers in the real world which theorists don't. 

For example, if subsequently another two-judge bench, faced with a question about the interpretation of Article 200, referred the case to the Chief Justice, and a larger bench was constituted, that bench would not be bound by the two-judge bench judgment.

This is also the case with a constitutional bench howsoever brought into being.  

If, however, five judges are asked, in their advisory jurisdiction, for their opinion on what the law is, then they are bound to tell the President that the law is what has been settled by the previous judgments of the Court.

Only if this, in their considered view, is in fact the case. Gautam forgets that the constitutional court he speaks off may choose to uphold and amplify the 2 judge decision. But the Legislature may decide that the Bench has usurped powers it was never meant to have by the framers of the Constitution. The wings of the Supreme Court may be clipped. They may be forced to accept a capacious doctrine of political question. They may lose the 'Collegium' system. There may be root and branch judicial reform of the sort mooted by Sanjeev Sanyal.

The second proposition is even more astonishing.

There is no such proposition. Gautam is barking at some figment of his own fervid imagination.  

Because, in the example of the reference discussed above, the five-judge bench, even though not bound by the two-judge bench, would be required to take its judgment into account,

only if the lawyers of one side or another make mention of it. Otherwise they can ignore it. Still, best practice may be to refer to it in obiter dicta to clarify matters. 

engage with it, and only depart from it if it felt that there were very strong reasons to do so (not simply if it felt there were two views, and it was of a different view).

Stare decisis means a superior court's decision binds lower courts even if it gives no rhyme or reason for overturning what was previously decided. A five judge bench is superior and binding over a two court bench. True, if the Bench stuck with Rex Judicata, it would be saved the headache of constantly overruling itself. Sadly, it has chosen not to do so. 

But here, not only did the bench declare itself not bound by precedent, but also liberated itself from even looking at the precedent. In essence, as noted above, it is as if the State of Tamil Nadu judgment never existed.

No. It is as though its relevance must be established by argument of learned counsel or it must occur spontaneously to one of the judges involved. But this is how the law works. If your lawyer fails to mention a relevant precedent, blame him. It isn't the job of the judge to do your lawyer's work for you.  

Why is this seemingly technical quibble of vital importance?

Because Gautam says so. But Gautam has shit for brains.  

It is important because, through these two propositions, if in the future, the Union of India loses a case, it can

ignore the Bench. Fuck can judges do? They couldn't even throw Prashant Bhushan in jail. If they get too big for their boots they will meet the same fate as the Pakistani or Bangladeshi bench.  

make a Presidential reference that asks the same questions that were decided in the case, make no mention of the case itself, and get an entirely fresh, second bite at the cherry – a “constitutional mulligan.”

Gautam doesn't understand that his true grievance is with the Bench's aversion to Res Judicata.  

And most crucially, as only the Union of India can make a Presidential Reference,

but anybody at all can launch a PIL with the same result.  

what the bench has effectively done is to say that every litigant before the Supreme Court of India gets one shot at a fresh hearing,

to whom did the Bench say this to? Sidhu? The family of the elderly man he killed? No. Had Sidhu decided not to put in a bit of jail time to show he was a tough guy, the case would have continued to trundle along.  

except for the Union, which gets two. In effect, the bench has carved out a special privilege within the Constitution only for the central executive.

In actuality, the Executive can defy or wholly disintermediate the Courts. More to the point, an angry mob of 'students' can get the resignation letter of the Chief Justice as happened in Bangladesh. The alternative is to be beaten to a pulp while watching your daughters get raped. 

Gautam is getting his knickers in a twist over an imaginary danger.  

Indeed, while taking place within the formal “advisory” jurisdiction of the Court, there was nothing about these hearings that were even remotely advisory: these hearings were conducted like a full-fledged adversarial dispute between two contending parties, complete with even a rejoinder by the Union of India.

The tussle was over whether the required constitutional bench would be constituted. The answer was 'D'uh!' Still, lawyers got to perform some histrionics to the great titillation of Gautam fucking Bhatia.  

At this point, we may as well give up the mask of the “advisory” hearing, and agree that what happened was a full-fledged re-hearing of a decided case,

Judgment has been reserved. It may be that the Bench will take this view. Will the President pursue the matter? Probably not. The BJP had an absolute majority in 2023, when the original case began. Still, the Centre has other weapons in its arsenal. The really significant development is the postponement of the Census. It now looks as though the Hindi belt will get a lot more seats in the next General Election. Tamil Nadu will have bigger problems than a recalcitrant Governor.  

but under a procedure previously unknown, and one that can, in the future, only be initiated by the central executive.

But, it may turn out that this expedient is worthless. Better just send a mob to threaten Judges. They become very sweet and nice if the alternative is getting their head kicked in. 

A final, somewhat ironic point: the State of Tamil Nadu judgment was rendered in a specific factual contexts (as judgments should be), and the Court’s interpretation of Articles 200 and 201 was informed by the constitutional practice placed before it. However, during the Presidential Reference hearings, the bench refused to consider constitutional practice, and stressed that it would render its opinion on the abstract questions of law before it.

In other words, it said it would do its constitutional duty. Gautam thinks that's very ironic. Why didn't it dance bhangra instead?  

Why do I say this is ironic? I say so because in the history of the Supreme Court, its most landmark judgments have been re-interpretations of the Constitution based on its working over the years.

In which case those judgments weren't a 'landmark' of any type. They merely documented current practice.  

In Maneka Gandhi, the Court rewrote Article 21 based on experience.

No. It went against custom and experience. Why? Indira was out of power. But she might be on her way back to it. Moreover, Maneka's husband had a lot of chums who, if not gangsters themselves, certainly knew how to mobilize a mob to kick in the heads of Judges they didn't like. 

Did anyone, other than Maneka, gain by the Court's 'Golden Triangle' principle? Nope. Extrajudicial killing on an industrial scale remained the ultimate safeguard of the Republic.  

But even more ironically, the collegium system – under which all the present judges of the Court have been appointed – owes its existence to a sweeping reinterpretation of the Constitution based on the experience of executive interference with the judiciary.

It was convenient. The political class exists so as to 'facilitate' transactions which the dysfunctional Bureaucracy and the wholly useless Judiciary hinder.  

To this day, in fact, the judgment that established the collegium – which has no basis in the constitutional text – is defended on the ground that it was necessitated by experience. Suddenly, however, the life of the law no longer seems to be about experience. One wonders why.

Unless one is Indian. We get that Courts exist so as to defeat justice and create a nuisance. But so do people like Gautam Bhatia. 

Many years ago, during my clerkship with a judge, I too was taken to play some golf.

He was brutally sodomized by imaginary threats to the Constitution. Sadly, he has no recollection of this. 

I was terrible at it, and gleefully made use of my mulligans. I remember wistfully wishing that we were all given mulligans not just in golf, but in life. It would make everything so easy. In its Presidential Reference, the Supreme Court has granted the executive a lifetime of free mulligans. If only we all had it so easy.

The Executive can bring the Judiciary into line just by replacing their existing security details with known rapists with a penchant for homicide. The way they look at your wife and kids will soon have you delivering the sort of judgments the Government wants. The alternative is to send round a mob of 'students'.