Recently, during the hearing of In Re: The Interplay Between Arbitration Agreements Under The Arbitration And Conciliation Act, 1996 And The Indian Stamp Act 1899, Senior Advocate Shyam Diwan, in my opinion, rightly put a question as to what jurisdiction is being exercised by the Supreme Court of India in constituting a seven-judge bench to hear a matter at hand in the curative jurisdiction.
The history of the case is that a curative petition was filed before the Court questioning the correctness of NN Global Mercantile Private Limited v. Indo Unique Flame Limited and Other. Now this was the second step of questioning the rightness of the Constitution Bench judgment. The first was when a review was filed in terms of Article 137 of Constitution of India read with Order XLVIII of the Supreme Court Rules, 2013.
By an order dated September 26, 2023, the Court was of the opinion that owing to the ramifications and consequences of the majority view in NN Global, the proceedings should be placed before a seven-judge bench to reconsider the correctness of the view of the five-judge bench.
Now here comes the issue of want of jurisdiction, as was briefly discussed by the seven-judge bench.
The moot point is whether the Supreme Court is equipped with the power to constitute a larger bench, effectively each time the judges are of the opinion that a judgment of a coordinate bench is not correct? In essence, can the Supreme Court act as an appellate court for the orders passed by itself through the constitution of a larger bench? What happens to the stand that the apex court is the final court? Who decides whether a case is fit for a larger bench?
This was not the first instance. In fact, the review petitions against the judgment of Kantaru Rajeevaru v. Indian Young Lawyers Association (Sabarimala Review) formulated the question of law regarding the correctness of the judgment rendered by a five-judge bench. What is interesting to note is that a bench of five judges decided to refer the review of the judgment to a larger bench by a majority decision of 3:2. It is interesting to further note that instead of referring the matter to a seven-judge bench, the then Chief Justice decided to refer the matter to a bench consisting of nine judges, the basis of which is still unknown.
Drama unfolded when the respondents sought to question the maintainability of the reference to a larger bench. However, the only reasons provided by the Court in support of the reference to a larger bench was that there are no limitations to its power under Order XLVII of the Supreme Court Rules, 2013 and further, whatever limitations are mentioned therein are applicable to only civil and criminal proceedings, and not to writ petitions filed in public interest.
Further, reliance was also placed on Order VI Rule 2 of the Supreme Court Rules, 2013, which states that in the course of the hearing of any case, appeal or other proceedings, if the bench considers that the matter should be dealt with by a larger bench, it shall refer the matter to the Chief Justice, who shall thereafter constitute the larger bench.
One more instance was recently seen during the hearing of Directorate of Enforcement v. M/S Obulapuram Mining Company Pvt Ltd on October 18, 2023, when the Court opined that it will revisit the controversial judgment of Vijay Madanlal Choudhary & Ors v. Union of India and Ors. It is pertinent to note that this hearing was neither of a review nor a reference, but of an interlocutory application seeking clarification of Vijay Madanlal Choudhary.
Now this is in the realm which is unknown to any of the procedures or law as we know. Thought in a strict sense, the rules of procedure under the Code of Civil Procedure (CPC), Code of Criminal Procedure (CrPC) or any other procedural laws do not apply to the apex court - which is only governed by the Supreme Court Rules, 2013 and holds enormous power to “do absolute justice” under Article 142 of the Constitution - the aforesaid three instances of NN Global, Sabarimala Review and Vijay Madanlal Choudhary are completely unknown territories for even the apex court to exercise jurisdiction.
This brings us to the debate on the extent of jurisdiction conferred on the Supreme Court by the Constitution of India and subsequently through the Supreme Court Rules, 2013, which is made under Article 145 of the Constitution. The Court vide Article 131 is vested with original jurisdiction to entertain suits/proceedings arising between the Union and the states and the states amongst themselves. Vide Article 132-134, it is vested with appellate jurisdiction in civil and criminal cases, wherein the High Court grants the litigant a certificate to appeal against its verdict. There is the much used jurisdiction of special leave to appeal against any orders passed by any court across the nation vide Article 136. Apart from this, the apex court exercises review powers under Article 137 and powers to transfer matters from one state to another under Article 139 of the Constitution.
Then comes the curative jurisdiction, which is a self-created jurisdiction of the apex court. Curative petitions are governed under Order XLVIII of the Supreme Court Rules, 2013. However, even this Order states that curative petitions must be governed by the judgment of Rupa Ashok Hurrah v. Ashok Hurrah and Ors.
Then comes the residuary power of the apex court under Article 142 to pass any order in public interest to do complete justice. (Academy of Nutrition Improvement v. Union of India).
Now this brings us back to the foremost question. Can the apex court, if dissatisfied with a ruling of its own, constitute a larger bench to overturn its own ruling? The larger Constitution Benches do not, in a strict sense, go into the question of disputed facts in any cases. However, the Bench during the NN Global hearing expressed its opinion that if justice is needed to be done on facts, the Court would not refrain from doing so.
Further, none of the cases decided by a larger bench ever goes sans the facts of that particular case. Therefore, whenever the apex court constitutes a larger bench each time a judge differs or refuses to agree with the ruling of another judge of the same court, the litigant may never see the end of their litigation at all.
In my opinion, what the apex court is doing is sitting in appeal over cases which have already attained finality vide either review, curative, reference or merely clarification applications. This is causing enormous confusion as well as overreach of the powers of the final court.
US Supreme Court Justice Robert Jackson once said, “We are not final because we are infallible, but we are infallible only because we are final.” It means that the final court of the country is vested with the duty to do absolute justice and nothing less, but not at the cost of repetitive exercise of jurisdiction that it does not posses or hold.
Shiva Krishnamurti is an advocate practicing in courts across New Delhi, primarily in the Supreme Court.