Mustafa Topiwala and Pranav Gupta
The Crux of the Issue
During her visit to the Supreme Court of India (SC) in February 2024, Justice Hilary Charlesworth opined on the importance of eliminating “any non-legal considerations that might affect the judge’s reasoning and clouded judgements”. The power of the SC to transfer cases under Article 139A of the Constitution has been discretionarily used to club different petitions in several instances. Without any objective test to club cases under India’s Constitution, there exists scope for potential violation of Article 14 of the International Covenant on Civil and Political Rights (ICCPR).
The Synonymous Understanding of Transfer and Clubbing of Cases in India
The recent case involving Samsung India Electronics Pvt. Ltd. sparks concerns regarding the transfer and clubbing of cases within the Indian judicial system. Consolidation, or clubbing, has been defined by the SC as a “process by which two or more causes or matters are by order of the Court combined or united and treated as one cause or matter”. Within the Indian legal landscape, the process of transferring cases to the SC has been synonymously referred to as clubbing, and different authorities have been invoked to accomplish this objective. For instance, the consolidation of petitions in the Sabarimala case was facilitated under Article 139A, whereas different petitions were amalgamated under Article 136 in the Nirmala Devi case.
In the jurisprudence surrounding the transfer of cases pursuant to Article 139A, the Indian judiciary has established a dual-prong for such transfer: i) there should be the same or substantially the same questions of law and facts, and ii) the questions should be of general importance for the public at large. However, in Shamita’s case, the SC articulated an additional consideration, emphasizing that the consolidation of cases should take place keeping in mind the convenience of the parties involved, which diverges from the established legal parameters. Therefore, the SC’s deviation beyond the defined legal contours raises concerns regarding the consolidation of cases. For instance, disparate outcomes were observed in the cases of LK Venkat and Selvaganapathy. In LK Venkat, the SC allowed the consolidation of petitions from a lower court into an ongoing matter within its jurisdiction, while the same was denied in Selvaganapathy’s case on the ground that a comparable case pending in the SC does not warrant clubbing petitions from the lower courts. These divergent judgements underscore the absence of a unified legal framework to govern the clubbing of cases in India.
Scope for Violation of Domestic and International Human Rights Obligations
The contrasting judgements engender concerns regarding impartiality, as the discretionary powers vested with Judges are not restricted by any objective test, allowing room for prejudice or preconceptions to creep in, thereby encroaching upon the right to a fair trial under Article 21 of India’s Constitution. Article 21 of the Constitution enshrines the right to life for every individual, which has been progressively developed to enclose a wider range of entitlements such as the right to a clean environment, and protection against noise pollution. Similarly, the right to a fair trial has been recognized as an integral component of this fundamental human right, as affirmed in the Kaushal Kishor case. In addition to the potential violation under Article 21, the transfer and consolidation of cases may result in change in venue of the parties, posing considerable inconvenience. This has been underscored in Sections 177 to 189 of the Code of Criminal Procedure.
Furthermore, this issue echoes the concerns expressed in General Comment 32 on Article 14 of the ICCPR, highlighting the significance of impartiality and procedural fairness. As delineated within paragraph 21 of the General Comment, judges have an obligation to keep their guard up against personal bias or prejudice, and not act in a manner that promotes the interests of one party over the other. It is imperative that a court always appears impartial in the eyes of a reasonable, ordinary prudent person. Considering that India has ratified the ICCPR, it is obligatory for the State to uphold the ideals set up by Article 14.
In the international arena, the International Court of Justice (ICJ) has relied upon Article 47 of the Rules of the Court as a legal basis to club multiple proceedings. In the case of Costa Rica v. Nicaragua, a joinder of proceedings was allowed, asserting that the joinder should be in accordance with ‘not only the principle of sound administration of justice’, but also with ‘the need for judicial economy’. Similarly, in the order of North Sea Continental Shelf Cases, the clubbing of the proceedings of distinct cases was allowed on the grounds of the same interests shared by the governments of the countries involved.
Parties to proceedings in Indian courts have expressed that transfer and clubbing of cases would have caused them inconvenience. Yet, the SC decided to transfer and club them against the desire of the parties, in 1996, as well as in 2023, amounting to drastic violation of human rights standards.
The Panacea for Procedural Judicial Ills
Justice Antonin Scalia propounded the idea that it is better to have a bad law, rather than a legal void. Post ratification of ICCPR, India is obligated to uphold the principles of procedural fairness enshrined in Article 14. While recognizing the distorted history of clubbing cases in India, it is imperative to incorporate definite criteria to mitigate the forthcoming impartiality stemming out of arbitrariness. Building on the insight provided by ICJ, the Indian judiciary can prescribe well-defined parameters, such as judicial economy and alignment of interests among the parties involved, which can serve as the evaluative benchmarks on which consolidation of cases can be carried out.
As outlined in the Canadian Supreme Court case of Club Resorts Ltd. v. Van Breda, prudent connecting factors need to be established before clubbing of cases. The judgement provides for multiple factors that need to be taken into consideration by judges: i) similarity of connecting factors with presumptive connecting factors, ii) relevance of connecting factor in the case, and iii) relation on connecting factor in law. These factors should be of importance for the Indian judiciary to ensure convenience of the diverse parties involved. Further, similar to the United States Judicial Panel on Multidistrict Litigationthat has particular authority to determine whether cases pending in two or more federal districts should be clubbed and transferred to a single federal district court, a panel can be set up in India based on a similar mandate. According to the mandate, in instances where cases are found to share common factual inquiries and are consequently consolidated, the Panel subsequently designates the federal district court and appoints a judge(s) to oversee the legal proceedings. The objective of this consolidation is to economize the resources of the involved parties and their legal representatives, as well as the judicial system, thereby averting redundant discovery processes and mitigating incongruent judgments by lower courts.
The Authors are students of Rajiv Gandhi National University of Law, Punjab
Image Credits: Fair Trials International
Constitutional Law Society 
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