Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor… ‘Tis all one as if they should make the standard for the measure we call a foot, a Chancellor’s foot; what an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third an indifferent foot: ’tis the same thing in a Chancellor’s conscience. — John Selden

Back in the 14th century, the English grew tired of the technicalities and lengthy procedures in courts of law. So they came up with parallel chancery courts, where cases were speedily decided — not according to law but as per “equity” and “good conscience”.

Over time, however, jurists like Selden realised that freeing judges from the constraints of formal laws had robbed the legal system of its certainty. The rule of law was replaced with the rule of men. Not only did Lord Chancellors feel free to disregard the law, but what one Chancellor considered equitable was unconscionable to another. After a while, therefore, the English were compelled to formalise the rules and procedures of chancery courts and bind them to statutes and precedents. Eventually, they just merged chancery courts into the courts of law.

Our experience of suo motu has run a similar trajectory.

Non-lawyers are often surprised to learn nothing in the Constitution explicitly authorises the suo motu jurisdiction. Indeed, for the first two decades after the 1973 Constitution, the apex court took no suo motu notice.

When the Supreme Court framed the Supreme Court Rules in 1980 — it described, in detail, the various jurisdictions of the Court. It even spelt out how its jurisdiction under Article 184 (3) of the Constitution (under which suo motu is now justified) should be invoked.

But suo motu was not mentioned at all. Seemingly, judges in 1980 did not even realise they had such a jurisdiction.

The first examples of the Supreme Court acting on its own emerge in the early nineties. It was an innovation by the court, later justified through judgements creatively interpreting Article 184 (3) of the Constitution. It was meant to free the court from the shackles of legal procedure and permit direct intervention where the fundamental rights of citizens were being transgressed, but they were unable, due to lack of awareness or resources, to approach the courts.

But regardless of good intentions, suo motu actions are now often criticised as forsaking the certain shores of law for the uncertain tides of “equity” and “conscience”. For reasons understood easily, suo motu orders are statistically likelier to veer into the realm of policy-making, to bypass due process and past precedents, and be accompanied by unusually unrestrained observations.

Suo motu cases are usually initiated by the Chief Justice. Naturally, he does so after forming an opinion that something is so seriously wrong that the apex court should directly interfere. At the hearing itself, therefore, it is hard for him to bring the same calm, disinterested legal detachment as he does to cases randomly fixed before him.

This has created a perception, as Selden presciently predicted five hundred years ago, that the measure of suo motu, too, varies with the size of the Chief Justice’s foot. One chief justice is convinced the court must regulate sugar prices. Another is equally convinced it is none of the court’s business. One pursues, with great vigour, the building of dams. Another decides it is not dams that are needed, but railways and bridges. And since it is chief justices who constitute Supreme Court benches, it is not uncommon for them to include, in their own bench, judges of similar ideologies.

This does nothing to burnish the court’s reputation. The Constitution and the laws are the same. The people and their needs are the same. Then why these fluctuating positions?

The judicial ship of state must run a steady course, regardless of whose hand is on the tiller.

Judges of the Supreme Court must act, collectively and institutionally, to frame rules bringing greater consistency and transparency not only in the initiation of suo motu but also in composition of benches and assignment of cases.

Even the possibility of tinkering with composition of benches or assignment of cases to affect judicial outcomes must be eliminated. Such rules might provide, for example:

i) Any judge (including the Chief Justice) proposing suo motu notice of a matter must refer the same to a committee of three judges. Suo motu notice would only be taken if recommended by the committee. However, the proposing judge and members of the committee must recuse themselves from hearing the case.

ii) Supreme Court benches should be constituted — by the Chief Justice together with the next four senior judges — for a period of at least six months each. The nature and categories of cases to be fixed before different benches should be specified. Ideally, assignment of cases to specific benches should only need a computer algorithm working with fixed parameters.

Where a larger bench is needed, it should automatically include the requisite number of judges as per seniority.

The fear is that the longer the apex court delays self-regulation, the greater the risk of another — whether in mufti or in khaki — thrusting regulation upon them.

The writer is a barrister

Twitter: @SalAhmedPK

Published in Dawn, April 16th, 2020