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Fresh row in top court as CJI roped in to resolve conflict between 2 benches

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A bench led by Justice Arun Mishra has asked CJI if court can declare a ruling of equal bench strength invalid after invalidating one such ruling.

New Delhi: Even as the confrontation between the Chief Justice of India and the four senior judges of the Supreme Court remains unresolved, a new conflict between two benches has added to the turmoil in the country’s top court.

A bench led by Justice Arun Mishra has sought the CJI’s intervention in deciding whether it is “permissible in law for the court to declare a ruling of equal bench strength as per incuriam” after going ahead and making such a declaration.

In common law, a judgment that is per incuriam has no legal force or validity and does not count as precedent.

On 8 February, Mishra and Justice A.K. Goel had gone ahead and declared a 2014 ruling on land acquisition as ‘per-incuriam’. The third judge on that bench, Justice Mohan M. Shantanagouder, wrote a dissenting opinion as he agreed with the findings of the 2014 bench which had said that non-payment of compensation would constitute grounds to cancel the land acquisition.

The 2014 ruling by a three-judge bench has been the precedent for over a dozen subsequent rulings of the apex court and many high court rulings. The reference seeking the CJI’s intervention comes after senior judges Madan Lokur and Kurian Joseph took strong exception to Mishra’s decision of 8 February invalidating the 2014 ruling.

The bench led by Justice Lokur on Wednesday also granted an interim stay against Mishra’s ruling. It also asked “other benches of the Supreme Court” to not take up the issue until it is decided by a larger bench.

Legal explanations

Former attorney general Mukul Rohatgi, explaining the law, told the court “that a three-judge bench cannot hold a decision by another three-judge bench to be per-incuriam but can only ask for consideration by a larger bench if it disagrees with the precedent”.

Since the apex court sits in benches of 2-3 judges usually, they often differ on issues. However, rulings of equal or larger benches are binding upon smaller benches to avoid inconsistency and contradiction.

“Admittedly, there have been instances where smaller benches have mistakenly overlooked larger bench rulings and come to light years later. Expressly declaring it per incuriam could be a first. Both actions are bad in law and must instantaneously be corrected,” said Prof. (Dr) M.P. Singh, a constitutional expert.

The case assumes significance since only a month ago, four senior judges — J. Chelameswar, Ranjan Gogoi, Lokur and Joseph — hit out at the CJI in a press conference, saying that cases were being selectively assigned to “preferred benches”, hinting at Mishra handling many important cases.

It is learnt that Justice Mishra has been unhappy with the remarks made against him.

Justice Joseph on 21 February expressed concern that the court is departing from established norms. According to the roster that has been made public recently, cases involving land acquisition and requisition are listed before justices J. Chelameswar, Lokur, Goel, and Mishra.

The CJI will now have to form a larger bench of at least 5-judges to decide the issue. However, this is not the first case that is seen as an undesirable departure from established norms in court. In fact, many of these departures were made by the CJI himself.

Previous instances

On 27 October last year, a two-judge bench of justices Goel and U.U. Lalit had sought the response of the central government, questioning the delay in finalising the Memorandum of Procedure (MoP). A week later, the case was transferred to a special 3-judge bench set up by the CJI which he headed. CJI Misra, justices A.K. Sikri and Amitava Roy then proceeded to dispose of the case without passing any orders. The unexplained transfer of cases raised several eyebrows, causing the senior judges of the collegium to write to the CJI.

Similarly, the CJI had said he would reconsider another order passed by justice Goel and Lalit on ‘guidelines’ to prevent arresting a husband and his relatives for cruelty against his wife. Since there is no intra-court appeal in the apex court, the CJI’s observations were criticised.

In at least two instances recently the court has sent a case to the CJI to set up a bench when it did not say so in open court. Justice Sikri in November last year said in his order that the case seeking probe into medical college issue will be decided by an “appropriate bench” constituted by the Chief Justice. Justice Mishra passed a similar order last month in another case seeking probe into the death of judge B.H. Loya.

According to Mohan Parasaran, former additional solicitor general of India, it is unfair to see a larger pattern. “One cannot attribute motives to these issues. These things always happen when there are many benches and the court rectifies it as soon as they become aware of it,” he said.

Not just the CJI, even justice Chelameswar was criticised when he hurriedly heard a case seeking a judicial probe against the CJI in the medical college matter. Senior advocate Raju Ramachandran had written that Chelameswar’s decision to hear the case and constitute a larger bench is “inexplicable” as a similar plea was already pending before justice Sikri.

But the CJI setting a larger bench the same day to undo Chelameswar’s orders overshadowed the first departure in judicial discipline. Alok Prasanna Kumar, Senior Resident Fellow at Vidhi Centre for Legal Policy, explains that this is similar to the current controversy.

“If justice Mishra wrongly declared a ruling of equal bench strength as per incuriam, justice Lokur went one step ahead in directing other benches of the SC to not follow that order,” Kumar said.

“The series of events show that there is a complete breakdown of trust within the institution. Every judge is acting in an asynchronous way, stepping on each other’s toes,” he added. “To worsen the situation, the CJI who has to set an example is showing the way to judicial indiscipline.”

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