Who Speaks for the Court? Attributing Accountability in Per Curiam

Introduction

The history of judgment-writing and the authorship of judgments is enamoured with differing and often intersecting behavioural patterns witnessed across the globe. Broadly, the authorship format of a judgment has historically conformed to two formats – Seriatim and Per Curiam, though the terms as such came to be associated formally much later. India traditionally mirrors the seriatim format adopted from the United Kingdom, crafting judgments that curate and account for the individual judicial opinions of all the members of the bench, ultimately forming a ratio determined by the common opinions of the majority of the bench. This format has now transformed into a hybrid model, in which the majority decision is authored by one judge on behalf of the majority bench, while the dissenting and concurring opinions may be separately written by the respective judge(s), essentially diluting a strict adherence to seriatim. 

However, a recent trend has emerged in India, involving judgments that remain unsigned by judges and given on behalf of the entire Court i.e., without authorship, anonymous judgments.  Four such judgments have emerged in this trend – M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors. (‘Ayodhya case’), In Re: Prashant Bhushan and Anr. (‘Prashant Bhushan case’), All India Judges Association and Ors. v. Union of India and Ors (‘Judges Association case’), and In Re: Assent, Withholding or Reservation of Bills by the Governor and the President of India (‘Reservation of Bills case’). Known as the per curiam format, these judgments bring with themselves larger apprehensions concerning feasibility and threats surrounding their use, which shall be dealt with by the authors in this blog.

Diverging Practices of Per Curiam

‘Per curiam’ is defined as an opinion expressed ‘by the court’ without disclosing the name of the judge who authored the judgment. This format has largely and traditionally been practiced in civil law countries of Europe. Further, in the United States of America (‘USA’), around 10-15% of the opinions of the Supreme Court of the United States (‘SCOTUS’) also follow the per curiam format. Where initially, per curiam was used by the SCOTUS to adjudge cases with procedural faults that did not require much deliberation, or for unsubstantial, routine, and disposal of certiorari cases, it is increasingly being used to answer obvious legal questions despite being related to critical issues. The system in USA gives way for dissenting and concurring opinions, even in per curiam judgments as seen in the cases such as Ray v. Blair, Bush v. Gore and Donald v. Anderson, thereby making anonymity one of the perks, but not the prime motive for its use.

On the other hand, in the European civil law systems, the rationale for using per curiam format in constitutional courts is primarily to maintain unanimity for authority and legitimacy in the newly developed institution of the constitutional court. While most countries are opening up their systems to allow for dissents, countries such as France, Austria, Italy follow a strict system of per curiam and prohibition of dissents. In these countries, decisions are usually decided by voting, which is not disclosed to the public.

Thus, while judges may have voted against a decision, the majority decision is displayed as the unanimous decision of the court. Per curiam, in these countries, does not mean an absence of dissent, but simply the prohibition on either writing or publication of dissent. For instance, Belgium, France prohibits production of dissents, and Austria and Italy record the dissents secretly.

India commonly follows a system whereby the judgment is accompanied by the names of the authors who have authored the decision. However, the Indian Supreme Court gave its first per curiam decision in the Ayodhya case, primarily to maintain anonymity in politically charged circumstances. Thus, unlike the European central idea of ‘unanimity’ in per curiam, ‘anonymity’ remains the reason for per curiam usage in India. 

It is argued in favour of per curiam that such judgments are more powerful than seriatim judgments on account of their unanimous nature. On the contrary, critics highlight that an absence of dissents in per curiam, stagnates the law. The value of dissents being already acknowledged in the threat of per curiam, the authors shall analyse the effect of per curiam on dissents, and the consequences of the apparent unanimous nature of the format alongside an already anonymous decision.

Perils Surrounding Per Curiam in India

1. Lack of Initiative to Dissent

In India, dissents are not legally prohibited as it had been in many European civil law nations. Thus, one may argue that per curiam judgments do not affect a judge’s ability and discretion to dissent, as prevalent in the USA Courts. However, it must be understood that unlike the USA, in India, a significant reason for the use of per curiam in recent trends is anonymity in politically contentious issues. Here, since the majority of the bench hides behind the veil of anonymity, a judge disagreeing with the majority decision would lack the incentive or initiative to break the veil and make their own dissenting opinion, fostering complacency and disinterest. 

Additionally, it has been observed that per curiam format in the USA has produced lesser publication of dissents than actual disagreements in conference rooms among the judges (10% dissents in relation to 40% disagreements in conferences) for the sake of maintaining the ‘unity’ of the court. Thus, in any case, introducing the per curiam system has a possibility of discouraging dissents, which could play an important role in constitutional growth and critical analysis.

2. Unintended Effects of Unanimity in Per Curiam 

   
   

‘Style reflects power, and the Court’s choice of style is about the Court’s power.’

- M Todd Henderson (A Theory of Dissent)

It is generally understood that judgments signed per curiam are stronger and more power-bearing than non-unanimous decisions, seriatim judgments, and judgments that include dissenting opinions, due to their nature of delivery ‘by the court’. In the past, a major reason for reluctance against dissents and differing opinions in seriatim judgments in the USA was that it was seen to dilute the authority of the court on account of a visible exposure of internal divisions of the court, scrutinised by the public eye. 

In the Indian context, this ‘strength’ of per curiam judgments does not refer to the formal legal binding force, since Article 141 of the Indian Constitution does not differentiate the binding power of unanimous and non-unanimous judgments. However, in its practicality, the strength lies in the per curiam’s potential to discourage dissents, potential difficulty in overruling such cases, and leaving less scope for future deliberation, be it by the judiciary itself or by scholars due to a non-disclosure of concurrences and dissents. Concurring or dissenting opinions have the ability to foster discourse, thus enabling scholarly discussions. In an event where consensus opinions hide the discussions or the logic of different judges involved in the decision, there is a risk to the public’s ability to evaluate the decision objectively, undermining the transparency in the institution.

Ira Robbins also highlights that the practice of per curiam threatens accountability and transparency, as unsigned judgments may invite less judicial effort than signed opinions that fix responsibility. In India, save the Ayodhya case, which was surrounded in critical social controversy requiring anonymity, the three judgments issued by the Supreme Court: Prashant Bhushan case, Judges Association case, and the Reservation of Bills case did not invite much public backlash or controversy. Nevertheless, the Court concealed the authorship by presenting the same as ‘the voice of the Court’, raising concerns on transparency and discouraged dissent.

These concerns are particularly critical for cases involving fundamental rights and freedoms, where discourse and dissent play a central role in Indian rights jurisprudence. As A.P. Bangara highlighted, the SCOTUS’ use of per curiam in Brown v. Board of Education to overrule Plessy v. Ferguson was a deliberate effort to avoid public dissent and institutional fragmentation. By contrast, in India, unreflective use of per curiam in rights cases risks diminishing the reasoning and dissent essential to legal development, as seen historically in cases such as AK Gopalan and Maneka Gandhi. In matters such as the Prashant Bhushan case, directly implicating Article 19, heightened transparency and visible judicial reasoning were therefore especially necessary.

Possible Reforms

The growing concept of soft accountability of the judiciary deals with the openness, representation, and procedural transparency of the judicial organ in a more direct way than the traditional forms of hard accountability which is only limited to scrutinisation of professional functioning. Soft accountability involves an open to public, transparency approach to the access of court information and Pierdominici argues that it can be deemed to extend to deliberations made by the court in reaching a decision, the internal processes involved and even making public the modalities related to different positions of a judge while making a judgment. In this sense, the naming of an author of a judgment can also be deemed to be a form of soft accountability on the part of judiciary. Thus, there is a soft accountability on the part of the judicial organ in revealing of authorships of judgments.

Further, there may be controversial cases incumbent upon the judiciary to address wherein the identity of the judge is required to be concealed on account of such backlash and controversy, as seen in the Ayodhya case where per curiam was deployed. However, in the judgment, it was specified that the judgment is not vested with any precedential value. This specification, which may have been non-nonintentional and non-cognisant to the effect of per curiam, had the potential to remove the effects that per curiam might have had in leading to a stronger authority. Taking insight from the same, the authors suggest that in any future use of per curiam, the Courts may consider integrating within the judgments both their justification for the use of per curiam and their intent of its precedential, or general impact indicating a conscious use of per curiam. Further, it is evident that judicially provided reasons serve as a criterion for reference of future judgments and also serve a predictive or anticipatory role for the future course of the institution of judiciary than a mere justificatory one. In this regard, providing judicial reasons for the use of per curiam could act as guidelines for their future use.

Consequently, a framework ensuring dissents in a per curiam setup may be considered - be it anonymous dissents, or bringing transparency in the process of decision-making, or publicly revealing votes in a per curiam decision as done in Germany, or conference deliberations. The existing hybrid model of authoring judgments in India, where one judge writes on behalf of the majority or the entire bench, is faced with less challenges in comparison to per curiam. This is primarily due to the author’s name being disclosed which breaks the veil of anonymity thereby ensuring a level of accountability, whilst also leaving room for dissents. However, considering the already existing opacity in the decision-making process of courts in India, a framework could aid not only in allowing a dissenting opinion in per curiam, but also improve upon the transparency and accountability of the Courts.

Conclusion

The increasing use of per curiam judgments by the Indian Supreme Court marks a significant shift in judicial authorship. While anonymity may be justified in exceptional, politically sensitive cases, its use risks eroding constitutional values of transparency, accountability, and reasoned adjudication. Unlike civil law jurisdictions where per curiam is rooted in institutional unanimity, India’s use of the format is primarily motivated by anonymity, often without procedural safeguards to preserve dissent and discourse. This may have implications for fundamental rights adjudication, where dissents have historically played a transformative role in shaping constitutional meaning.

The apparent unanimity of per curiam decisions may discourage dissent, limit scholarly engagement, and strengthen precedential authority without exposing the underlying judicial reasoning. As judicial legitimacy increasingly depends on soft accountability, visible reasoning and authorship assume heightened importance. In light of this, the authors contend that explicit justification for per curiam use may be beneficial, alongside clarity on precedential intent, and techniques for accommodating dissents, which may ensure that the format does not come at the cost of constitutional development.

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This article has been authored by Jappan Kaur Cheema and Nandini Garg, Associate Editors at RSRR. It is a part of the RSRR Editor's Column Series.