By Amritananda Chakravorty
The Supreme Court again seems to be involved in another crisis, with questions of judicial impropriety and challenging conventions raised. The issue pertained to a decision of bench of three judges declaring a 2014 judgment of another three judges on land acquisition as per incurium, i.e., not binding on future cases, which would have huge ramifications on land acquisition cases all over India.
On February 8, 2018, the Supreme Court in Indore Development Authority v Shailendra (Civil Appeal No. 20892 of 2017 in a bench of three judges, i.e., Justices Arun Mishra, Adarsh Goel and M. Shantanagouder, gave a judgment on the interpretation of Section 24 of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which dealt with land acquisition proceedings under the old Act that are said to lapse in certain cases. In doing so, the majority led by Justice Arun Mishra and Justice Adarsh Goel declared a judgment of another bench of three judges in Pune Municipal Corporation v Harakchand Misirimal Solanki[(2014) 3 SCC 183]per incurium, which had settled the issue. Curiously, Justice M. Shantanagouder dissented stating that the law laid down in Pune Muncipal was the correct law, and was not per incurium. In effect, a majority bench of two judges declared a judgment of three judges per incurium, in complete contravention of settled judicial principles and practice. As per law, if a bench of same strength differs from the judgment of another bench of similar strength, then the matter needs to be placed before the Chief Justice of India for the constitution of a larger bench. This ensures that judicial precedents are not tinkered lightly, but only when they are necessary.
On February 21, 2018, another bench of three judges of Supreme Court, i.e., Justice Madan Lokur, Justice Deepak Gupta and Justice Kurien Joseph, was hearing similar petitions in State of Haryana vs. M/s. G.D. Goenka Tourism Corporation Ltd. [SLP (C) ___CC 8453/2017), when it was brought to their attention that Pune Municipal had been held to be per incurium by a coordinate bench, out of which, one even dissented.After hearing the arguments, the Bench unanimously directed that during the pendency of a decision whether the matter needed to be sent to a larger bench or not, the High Courts should not deal with similar cases, but wait for clarity from the Supreme Court. In terms of cases pending before other Benches in Supreme Court, they should be deferred till the issue was sorted, i.e., reference to a larger bench. In short, the Court effectively stayed the decision of Justice Arun Mishra’s bench, and kept the matter to be heard on 8th March, 2018.
Meanwhile, in light of Justice Lokur’s order, on February 22, 2018, Justice Adarsh Goel, sitting on a bench of two judges, passed an order in Indore Developmentplacing the matter before the Chief Justice of India for the constitution of a larger bench to resolve the issue urgently. Accordingly, the Chief Justice of India, Shri Dipak Mishra, has constituted a larger Constitution bench of five judges and would hear the matter from 6th March, 2018 onwards. This is even prior to Justice Lokur’s bench deciding whether the matter required to be referred to a larger bench or not.
As evident from above, many judicial conventions have been unsettled in the above-mentioned matters. Firstly, the bench in Indore Development could not have declared a judgment of coordinate bench as per incurium. Secondly, the bench of two judges led by Justice Adarsh Goel could not have straight away referred the matter to Chief Justice for constitution of a larger bench of 5 judges, since a bench of two judges can only refer the matter to a bench of three judges, and that too the reference order has to be a reasoned one. One hopes that the Constitution Bench led by Chief Justice Mishra would not only settle the issue on merits, but also reiterate the long cherished principles of judicial propriety and discipline.
This episode again highlights the fact that all is not well with the highest Court of India. The dissensions simmering for long and brought to light by the now famous 12th January press conference by the four senior most judges of India are still very much alive, and not resolved yet. And it is not just affecting the functioning of Supreme Court as a cohesive unit, but also the overall administration of justice in India, wherein settled principles of law are being whittled down, much to the chagrin of the millions of litigants in India.
Weekly Round-Up of Major Decisions of the Courts in India as also Legal Policy Developments
- PIL demanding linking Aadhaar with the voting system and property documents filed – The Supreme Court has agreed to hear a PIL asking for a direction to the Election Commission of India to implement an Aadhaar based voting system to ensure that no bogus votes are cast. The Petition argues that the move would improve the overall health of the voting system. It further seeks for linking property documents with Aadhaar with a view to curtail benami transactions. It would let the tax authorities know about the legal owners of properties and if the ‘legal owner’ denies the ownership, then it could be treated as a benami property. [Ashwini Upadhyaya v Union of India, Writ Petition (Civil) No. 1043 of 2017, date of order: 19.02.2018]
- Various PILsrelating to Nirav Modi fraud filed–In the aftermath of the Nirav Modi fraud, several PILs have been filed in the Supreme Court demanding a Court monitored SIT probe into the banking fraud committed by Nirav Modi. The petitions argue that given the size of the fraud, it could not have been committed without the involvement of those in power. [Manohar Lal Sharma v PNB, Writ Petition (Criminal) No. 2018] Another PIL has been filed demanding the “deportation” of Nirav Modi has been filed in the Supreme Court. [Vineet Dhandav Union of India, Writ Petition (Civil) No. 143 of 2018]. The Attorney General has opposed these petitions on the ground that investigations were going on into the FIRs and there was no need for an independent court-monitored probe now.
- Unequivocal statement by Hadiya that she married out of her own choice – In the habeas corpus case filed by her father, Akhila alias Hadiya has filed an affidavit in the Supreme Court narrating her version of the events since 2010, when she was admitted into a college in Kerala. She categorically stated that she embraced Islam and married Shafin Jahan, the respondent in the petition, of her own volition. She further mentioned the abuse that was meted out to her in the women’s hostel where her parents had put her in an attempt to ‘make her realise her mistake’. She also narrated the ordeal of the NIA investigation into the circumstances surrounding her marriage and that how the NIA tried to convince her that her husband was a terrorist. The Court has given one week’s time to the respondents to respond. [Shafin Jahan v Asokan, Special Leave to Appeal (Criminal) No. 5777 of 2017, date of order: 22.02.2018]
- Retired District Judges can be appointed to High Courts – The Supreme Court, in a petition challenging the appointment of two judges who had retired from judicial service in 2016, held that retired judges can be appointed to the High Courts. As per the law laid down by the Court in earlier cases, in order to be appointed under Article 217(2)(a), the individual would have to be a serving judicial officer. But the Court refuted the interpretation by holding thatretired judicial officers can be appointed as High Court judges under the Constitution. The Court further clarified that Additional Judges of High Courts may also be appointed for a tenure of less than 2 years under Article 224. [Sunil Samdaria v Union of India, Writ Petition (Civil) No. 835 of 2017, date of judgment: 23.02.2018]
- Multi-national accounting firms may be in violation of the law – The Supreme Court has asked the Central Government to form an expert committee to look into the workings of Multi-National Accounting Firms and submit a report on the issues identified by the Court within 3 months. This comes as a response to a PIL filed by Mr. Prashant Bhushan, according to whom these firms are operating in violation of the law. The Court thus directed that the Expert Committee would look into the question whether and to what extent the existing statutory regulations require modifications so as to appropriately regulate MAFs. The Court also asked the Government to consider a legislation to control and regulate the activities of such firms. [ Sukumar vs. The Secretary, Institute of Chartered Accountants of India& Ors., Civil Appeal No. 2422 of 2018, date of judgment: 23.02.2018]
- State Government allowed to take over private schools which were shut down – The Supreme Court allowed the Kerala Government to take over three private aided schools which were decided to be closed by their respective managements on the ground ofpublic interest. The Court held that Article 21A of the Constitution mandates the State to take all necessary steps to ensure quality education to children upto 14 years of age. The management of these schools had appealed against the decision of the Kerala high Court, which had refused to intervene. The management claimed that the process under the Land Acquisition Act, 2013 should have been followed and even if the State wanted to take over schools, the schools had to be running in the first place. Rejection their contention, the Court affirmed the Government’s decision, as it was in furtherance of its obligation to provide primary education to students. [ A. Padmanbhan v State of Kerala, Civil Appeal No. 2206 of 2018, date of judgment: 16.02.2018]
- Gag order on the Wire restoredby High Court– The Gujarat High Court has restored the gag order,which prevented The Wire from reporting or publishing any content related to Jay Shah, pending the disposal of the defamation suit filed against the publication. The judgment considers the three prerequisites for granting injunction, namely – a prima facie case, balance of convenience, and irreparable loss caused to one of the parties. It held that the trial court had established a prima facie case of defamation in favour of Jay Shah. The other two conditions, according to the Court, had also been answered in the favour of the plaintiff and thus the High Court felt that there was no reason for the trial court to dilute its previous order granting injunction.[Jay Amitbhai Shah v Rohini Singh, Appeal from order 376 of 2017, date of order:20.02.2018]
- Gag order against Caravan article vacated – TheDelhi High Court has vacated the injunction order against Caravan Magazine in the defamation case filed by IIPM founder Arindam Chaudhuri. Chaudhari filed the case because of an article published in the magazine which painted him and his college in poor light. The Court looked at the existing jurisprudence and stated that the Courts in India do have the power to gag media regarding matters sub-judice as long as the requirements of necessity and proportionality are met. But in the particular situation, the Court observed that the articles majorly carried information available in the public domain or statements made by students etc of the college. Thus the Court found no reason to allow the gag order. [Indian Institute of Planning and Management v Delhi Press Patra Prakashan, Civil Suit (Original Suit) No. 3354 of 2015, date of order: 16.02.2018]
- Special Marriage Act does not require notices to be sent to the residences of the intending parties – The Rajasthan High Court has held that the Special Marriage Act, 1954 does not contemplate sending of notices to the residence of those intending to marry under the Act and that such notices amount to breach of privacy of such persons. The Petitioners in the case were objecting to the decision of the Marriage Officer, according to whom a notice had to be sent to their residences through the SHO and once such a notice was verified, only then could the marriage be solemnised. The Petitioners contended that even though their parents might agree to the marriage but such a public notice may spark protest from the neighbours, endangering not only the marriage itself, but also the security of the parties. The Court specifically noted that the Act did not require any such practice. [Kuldeep Singh Meena v State of Rajasthan, -Double Bench Civil Writ No. 17080 of 2017, date of order: 20.02.2018]
- PIL seeking probe into the role of Adityanath in Gorakhpur riots dismissed – The Allahabad High Court has dismissed a petition seeking an independent probe into the alleged role of Uttar Pradesh Chief Minister Yogi Adityanath in the 2007 Gorakhpur riots. The court also upheld the state government’s decision of not granting sanction against him under the Code of Criminal Procedure. Allegedly, Yogi Adityanath had sparked communal riots in Gorakhpur by making a hate speech against Muslims. The Courtframed two issues – firstly, whether the High Court has jurisdiction under Article 226 to transfer investigation and secondly, whether the State has failed to perform its statutory duty to conduct a fair investigation in this case. The Court answered the first question by reiterating that it had the power to do so and cited precedents to support its position. After taking a stock of the evidence and the investigation procedure, the Court felt that the investigation had proceeded in a fair manner and the denial of sanction was completely justified. Thus the Court dismissed the PIL. [Parvez Parwaz v State of Uttar Pradesh, Criminal Miscellaneous Writ Petition No. 21733 of 2008, date of order: 22.02.2018]