By Amritananda Chakravorty
No week passes by when the Supreme Court is devoid of a controversial decision, whether on the judicial or on the administrative side, especially that of the Chief Justice of India, Ranjan Gogoi. On 12th October, 2019, the CJI set up a Constitution Bench of 5 judges to hear a bunch of petitions on the interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act, 2013 (‘Act’) comprising of Justice Arun Mishra, Justice Indira Banerjee, Justice Vineet Saran, Justice M.R. Shah, and Justice Ravindra Bhat.
This would have been an innocuous decision, if not for the presence of Justice Arun Mishra on the Bench. 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 ofthe Act, 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.
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 Development placing the matter before the then Chief Justice of India for the constitution of a larger bench to resolve the issue urgently. This was even prior to Justice Lokur’s bench deciding whether the matter required to be referred to a larger bench or not.
After 20 months, the Constitution bench has been finally constituted, but the fact that the Bench is headed by Justice Arun Mishra has led to immense consternation, considering he had already made his views clear on the subject. The entire premise of referring a case to a larger bench, owing to conflicting opinions, is to hear the matter almost de novo, but to have the same Judge, who had incorrectly held a decision of a larger bench to be per incuriam, preside over his own judgment, and determine the correct interpretation of law, flies in the face of judicial propriety and independence. Of course, he may still overrule his own judgment, and uphold Pune Municipal, but the apprehension that he may not do that is very high, thereby undermining the faith of litigants in the judicial process.
In fact, on October 14, 2019, the All India Farmer Association has written to the CJI asking him not to set up the Constitution Bench under the aegis of Justice Arun Mishra by stating that “applicant most respectfully prays that Justice Arun Mishra’s judgment (was) doubted by Justice Madan B Lokur and thereafter matter was referred to the five judges (bench). Therefore, Justice Arun Mishra cannot hear the matter on the principle that justice not only be done, but also seen to be done.”
The issue at hand is a highly significant one, with widespread impact on the land acquisition cases all over India, and ought to be heard in a fair manner. CJI’s action in setting up a bench, contrary to judicial norms and propriety, does not bode well for the administration of justice in India, however fragile it is now in the current context. The Bench should be immediately reconstituted, and the matter be heard on an urgent basis with fresh minds at work. (IPA Service)