SC in knots as its 3-judge bench overrules another of same strength

NEW DELHI: The Supreme Court appeared to have tied itself in knots on Wednesday, with a three-judge bench questioning the judicial propriety and discipline of another three-judge bench, which had on February 8 overturned yet another three-judge bench’s 2014 judgment on land acquisition.

The subject matter was important as it involved the acquisition of land and payment of compensation to land-owners, mainly farmers.

But the two-hour-long proceedings before a bench of Justices Madan B Lokur, Kurian Joseph and Deepak Gupta brought back flashes of the smouldering discontent among the four most senior judges which had erupted in an unprecedented press conference on January 12.

The protest presser by Justices J Chelameswar, Ranjan Gogoi, Lokur and Joseph was triggered by CJI Dipak Misra’s decision to assign PILs seeking a probe into the alleged suspicious death of judge B H Loya to a bench headed by “junior judge” Arun Mishra.

What the bench of Justices Lokur, Joseph and Gupta questioned on Wednesday was the judgment by a three-judge bench headed by Justice Arun Mishra terming a 2014 “Pune Municipal Corporation” judgment by a bench of identical strength as “per incurium” (decision rendered without taking care of facts and law). Interestingly, the Pune Municipal Corporation judgment was rendered on January 24, 2014 by a bench of Justices R M Lodha, Lokur and Joseph.

The Justice Lokur-headed bench, in an interim order, asked high courts not to pass any order on pending land acquisition issues, thus stalling implementation of the February 8 judgment. It also requested other benches of the apex court to defer hearing on petitions on this issue.

Former attorney-general Mukul Rohatgi provided the spark that reignited the “discipline” and “propriety” issue that has hurt unity among SC judges. Rohatgi said propriety demanded that the three-judge bench, if it did not agree with the earlier three-judge bench decision, send the issue for consideration before a larger bench. He said what was worse was that the same bench had been disposing of scores of cases based on the ruling given by it on February 8 in complete disregard of the farmers’ interest.

Justice Joseph poured out his “painful concern” and said, “The Supreme Court operates on a system and principle which are holy. If you start tinkering with it, what will happen? Everyone must think about it — both judges and lawyers. We will go one day but the institution must go on forever. There is a method and procedure to be followed. If the Supreme Court has to be one, it has to be made one. To make it one, you need judicial discipline. “The Supreme Court is one and must not speak in 14 voices (indicating that the existing 14 benches must not speak differently on the judicial side). It is not good for the institution.”

Rohatgi recounted the right to privacy issue and said as attorney-general, he had argued before a five-judge bench that it could not decide the issue as an eight-judge bench had earlier ruled that privacy was not a fundamental right. “Overnight, a nine-judge bench was set up by the CJI which overruled the eight-judge bench decision. That is the procedure and discipline,” he said to rub it in.

Senior advocate P S Patwalia, appearing for Haryana, defended the recent ruling of the Justice Arun Mishra-headed bench and said the law’s misuse was stopped by this judgment and Justice Joseph’s views were rather strong. Justice Joseph clarified, “It is not strong views but my painful concern. If one bench of the SC wants to correct an earlier ruling by another bench of identical strength, then there is a process to do it.” Rohatgi chipped in and said if the Pune Municipal Corporation judgment required to be reconsidered, the correct procedure would have been to refer it to a five-judge bench.