It was over a month ago that four senior judges of the Supreme Court resorted to an unprecedented step by convening a press conference to highlight their grievances against the functioning of the office of Chief Justice of India.
Haphazard listing of cases and departure from recognized conventions when listing matters etc. were some issues raised by the four judges. Judges in India fiercely shield themselves from media attention and rarely engage with scribes. Thus, many in the legal fraternity familiar with the working of the Supreme Court hailed the act of the four judges in coming out in the open.
However, against the run of play, the next few days witnessed the fizzling out of the entire episode. What was expected to usher in drastic reactions instead ended up with no real consequences.
Further, the fact that the four judges had cited a case involving BJP leader Amit Shah as a trigger for the press conference, was enough for the ruling party sympathisers to kick-off a smear campaign. An incessant attack on the credentials and intentions of the four judges followed eventually driving them into a shell.
The rabble rousers could not look beyond the fact that the issue raised by the four judges had more to do with the functioning of the Chief Justice of India and the credibility of the institution itself and that the case of Amit Shah which was cited by them, was only an example.
Moreover, the support that the four judges might have expected from the Bar also never came (not a surprise for those who are acquainted with the Bar of current times).
Media all the while hunted for what it termed a ‘solution’ to the fallout, with conflicting stories on the issue filling front pages every passing day.
Meanwhile, as an answer to allegations of arbitrary exercise of Master of Roster power, CJI Dipak Misra decided, for the first time, to make the Supreme Court roster public.
And things seemed to have quietened down, until yesterday!
If what transpired in court room 4 of Supreme Court yesterday was any indication, then the trouble in Supreme Court between the judges seems to be far from over.
Justice Kurian Joseph yesterday came down in strongest words against a judgment passed by a three-judge Bench headed by Justice AK Goel. The judgment, Indore Development Authority Vs. Shailendra (Dead) Through Lrs. And Ors was delivered on February 8 and authored by Justice Arun Mishra, the other judges being Justices AK Goel and M Shantanagoudar.
This judgment had, by a 2:1 majority, held a 2014 judgment passed by the same Court in Pune Municipal Corporation case to be per incuriam i.e. having overlooked the law or facts.
The catch was that the Pune Municipal Corporation judgment was also rendered by a three-judge Bench.
The well-established convention when co-ordinate Benches, i.e. Benches of same strength (in this case three) differ on any aspect of law, is to direct that the matter be placed before a larger Bench for considering the issue.
However, the Court in Indore Development Authority judgment seemed to have done away with the same, ordering the following:
“As the majority has taken the view that it is a per incuriam, it is declared to be per incuriam.”
The argument that the Indore Development Bench might have overlooked the fact that Pune Municipal Corporation judgment was rendered by a Bench of co-ordinate strength does not seem to hold water since the Indore Development Bench has in its judgment itself, contemplated whether to refer the matter to a larger Bench or not, before deciding against it.
“With respect to the decision of this court in Pune Municipal Corporation (supra) we have given deep thinking whether to refer it to further Larger Bench but it was not considered necessary as we are of the opinion that Pune Municipal Corporation (supra) has to be held per incuriam,….”
What was also intriguing was that while Justice Shantanagoudar dissented with respect to the correctness of Pune Municipal Corporation, there was no separate judgment by him. We get to know that he has dissented only from the common order which spells out the same and also from the fact that he has not signed the majority judgment.
It is in this backdrop that a few land acquisition matters came up for hearing before a Bench of Justice Madan B Lokur, Kurian Joseph and Deepak Gupta in court room 4 yesterday.
When the case came up for hearing as item 8, the judgment in Indore Development Authority was thrown into the picture leading to a lengthy discussion.
Senior Advocate Mukul Rohtagi rightly submitted that the matter should have been referred to a larger Bench and that Indore Development Bench could not have rendered the decision it gave.
Justice Kurian Joseph minced no words while expressing his disapproval at the Indore Development judgment.
“I don’t want to remain silent on this issue. There are certain virgin principles which cannot be deviated from. The system exists on these holy principles. This Court should function as one institution”, he said.
The Bench then ordered that it will decide whether the issue has to be placed before a larger Bench or not. More interestingly, it has ordered all the High Courts not to deal with cases involving the issue under consideration, that is Section 24 of the Land Acquisition Act.
Moreover, it has also gone one step further and requested other Benches of the Supreme Court to defer hearing in similar cases till the matter is settled one way or the other. Such a direction is not binding on other Benches, and hence the response of other Benches to this order would be worth a watch.
The larger question, however, is whether the Chief Justice of India would intervene in the matter in exercise of his Master of Roster power, something for which he has come under immense criticism in the recent times.
Whatever the implications of the order passed yesterday, one thing is for certain – all is not well in the Supreme Court of India.
Murali Krishnan is Associate Editor at Bar & Bench. He tweets @legaljournalist.