What led to 'conflict' between two benches of Supreme Court
The debate over a three-judge bench of the Supreme Court overruling another three-judge bench in a land acquisition matter, will now be considered by a five-judge bench of the court, on March 6. The five-judge bench comprising chief justice Dipak Misra and justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan will hear the "cause celebre".
Matters came to a head, thanks to an unusual order on February 21 virtually "staying" the operation of the earlier verdict of February 8 by another three-judge bench.
“We are of the opinion that it would be appropriate if in the interim and pending a final decision on making a reference (if at all) to a larger bench, the high courts be requested not to deal with any cases relating to the interpretation of or concerning Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013,” the three-judge bench of justices Madan B Lokur, Kurian Joseph and Deepak Gupta had said.
It is most unusual for a three-judge bench to hold that a couple of earlier judgments by another three-judge bench to be "per incuriam". It is even more unusual for another three-judge bench to "stay" the orders of a different three-judge bench. All in the name of judicial propriety.
We live in interesting times and unusual is now the new normal and it makes for fascinating reading.
On February 8, a three-judge bench comprising justices Arun Mishra, AK Goel and Mohan M Shantan Gowder by a 2:1 majority declared that Pune Municipal Corporation vs Harakchand Misirimal Solanki, 2014 (3) SCC 183, is "per incuriam".
The bench also explained "per incuriam" as "the concept that signifies those decisions rendered in ignorance or forgetfulness of some inconsistent statutory provisions, or of some authority binding on the court concerned”.
Without getting entangled in the legal jargons, it may be interesting to relate to lord Alfred Denning, a judge who was in the thick of such "spats" and never shied away from dissertations on why he chose to "dissent with even House of Lords" even while sitting in the court of appeal. But he got "chastised", as he put it, many a time, yet never "scarred" from the experience.
While the Indian judiciary is known for the taciturn attitude of our robed brethren - (ignoring the recent unusual event of four of the senior-most judges of apex court going public) - in the United States, Supreme Court downwards, judges are known to go public with their views, on even the most sensitive topics (of course, not in relation to causes on the board) such as death penalty, abortion, same-sex marriage, gun control, flag burning. They write academic pieces, even author books.
We have John Roberts, chief justice, and associate justices Stephen Bryer and late Antonin Scalia openly debating on their constitutional philosophies be it as "originalist" or a "living" one.
They juxtaposed their philosophies on live public issues and openly took sides which are analysed by professors to second guess how the justice would vote - come a "lis" before the court.
Even in the UK and Australia, judges do go public, but they are a lot more reticent than their counterparts in the US who are possibly the most forthcoming.
Such public debates do not detract from the merits of the decisions they take, and the public, academicians in particular, love it.
And in the judgments themselves - many a time - the judges answer each other with a taunt or a barb too.
Read the Obamacare (2012) verdict or same-sex marriage verdict (2015), both 5-4, for such interesting exchanges.
Sometimes, even personal and veiled attacks are camouflaged in high academic verbiage of sophistry, but the message is not lost on the informed where the affiliations lie.
Yet, one is not used to such "talk-backs" in judgments in our midst. Ours are restrained, so to say. But, times are changing, or are they?
To the academically inclined, such "spats" may be enlivening . But in a matter as critical as "land acquisition and compensation claims", disregard for "institutional discipline and judicial integrity" would be most unwelcome. For, as the African proverb goes: "When elephants fight, it is the grass that suffers." Couldn't be more true.