A split verdict in the Bastar Burial case

Transcript:

Hello everyone and welcome to SCO’s channel.

I’m Sai Spandana.

Today we’re going to be talking about a recent split verdict delivered by Justices B.V. Nagarathna and S.C. Sharma.

The case was Ramesh Baghel vs State of Chhattisgarh.

Now interestingly, the operative order in this split verdict had the strange consequence of preferring the judgment of one judge over another.

In brief, the case was this:

Ramesh Baghel, a resident of the Chhindwada* village in the Bastar District of Chhattisgarh, had appealed to the Supreme Court after the High Court upheld the Panchayat’s decision barring him from burying his father Subhash in their own village.

The Chhattisgarh High Court based its decision on a “public order” concern given that the residents of the Chhindwada* village were predominantly Adivasi and had protested to the burial of Subhash, who was a Christian pastor.

In the split decision, Justice S.C. Sharma noted that the public order concern raised by the High Court was not a “ruse” and directed Subhash to be buried in a Christian burial ground in a different village nearby.

On the other hand, Justice B.V. Nagarathna found that the Panchayat’s position barring the burial of converted Christians in the village graveyard was unfortunate and nothing but a violation of Articles 14 and 15(1).

She directed that Subhash be buried in the family’s private agricultural land in Chhindwada* itself.

Yet, the operative order favoured Justice Sharma’s direction.

Typically, in split decisions, the norm is to refer the legal question to a larger bench.

When there are operative orders passed in such cases, they’re typically based on consensus.

Recent split verdicts, such as the one on interim bail for 2020 Delhi riots accused Tahir Hussain and another regarding the conviction for custodial death referred issues to larger benches without passing any operative directions.

Just last year, Justices Nagarathna and Sanjay Karol had issued a set of consensus-based directions including one on the framing of a national policy for genetically modified crops, even though they differed on the government’s approval of the release of genetically modified mustard seeds.

In the present case, the bench justified its course of action on the grounds of time.

The body had been lying in the mortuary for almost three weeks and it was necessary to accord an expeditious and dignified burial.

Indeed, a lot of time does pass between a reference and a final decision.

An analysis we published in 2022 showed that the average time was two years.

But there have also been exceptions made in time-sensitive cases.

For instance, in 2015 Yakub Memon’s mercy plea on the eve of his hanging resulted in a split verdict, but a three-judge bench upheld his death sentence the very next day.

More recently, in 2023, a three-judge bench turned down the plea of a woman to medically terminate her 26-week pregnancy just five days after a split judgment.

In both cases, a larger bench heard the matters expeditiously and put forth positions representing the Court’s standing on significant legal and constitutional questions.

No matter the propriety of the reasoning, these represented coherent stances open to judicial challenge and academic critique.

In Ashray Adhikari v Union of India (2002), the Supreme Court had recognised the right to a dignified burial.

Viewed in this context, the Baghel case raises a significant concern on whether public order concerns can so obviously override not only the right to equality and non-discrimination, but Article 21 itself.

In the event, the Baghel judgment muddies our understanding of where the Court stands on key legal issues and opens up the possibility for more verdicts that are only split in rhetoric.

Beyond these concerns, the Court may have given credence to a fear that Ramesh expressed to a reporter in the wake of the verdict:

“I think that the discrimination against the community is going to increase,” he said.

Read this story by our court reporter Sushovan Patnaik on scobserver.in now.

Also, tell us what you thought about the decision in the comments below.

As usual, thank you for tuning in!