, ,

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

On October 12, it was reported that a five-judge bench of the Supreme Court would start hearing a set of cases about the interpretation of Section 24 of the Land Acquisition Act (2013). The Bench would be led by Arun Mishra J., and would commence hearings on October 15 (tomorrow). The composition of the Bench, however, has immediately raised eyebrows. To understand why, it is important to set out a brief history of the dispute.

The legal controversy itself – that involves the fate of huge tracts of land across the country – has been ably summarised by Suhrith Parthasarathy and Namita Wahi. For our purposes, the point is this: in 2014, a three-judge bench of the Supreme Court (Pune Municipal Corporation) interpreted Section 24 of the Land Acquisition Act in one way. The Supreme Court’s interpretation (as is normal) was followed by High Courts across the country, and also by multiple two-judge benches of the Supreme Court itself, for the next four years. However, in December 2017, a two-judge bench of the Supreme Court took a contrary view, and asked for a larger bench to consider the matter. In accordance with convention, the Chief Justice constituted a three-judge bench to look into the issue. Very swiftly after that (in February 2018, within two months of the December 2017 judgment) that three-judge bench (Indore Development Authority) also took the opposite view on Section 24 from Pune Municipal Corporation.

Now, in the normal course of things, the judgment of a three-judge bench is binding on all coordinate benches; consequently, if a three-judge bench disagrees with another three-judge bench, the correct thing to do is to refer the issue to the Chief Justice, so that a higher bench can lay down the position of law authoritatively.* However, instead of doing this, a majority of the three-judge bench – over a dissent by Justice Shantanagouder – held that Pune Municipal Corporation was per incuriam (a judgment delivered without the authority of law), and therefore not binding. In one stroke, therefore, the Bench in Indore Development Authority exempted itself from being bound by Pune Municipal Corporation, overruled all the two-judge bench decisions that had followed it, and declared that its reading of Section 24 was now the law. Soon after that, pending land acquisition matters in the Supreme Court began to be disposed off in accordance with the new understanding.

As Suhrith Parthasarathy pointed out at the time, in a legal system that rests upon the principle of stare decisis (consistency and uniformity of interpretation), coordinate benches overruling each other – especially in order to upset a settled interpretation of law – is improper. To this it may be added: calling another judgment per incuriam is not something that is done in the normal course of things. Per incuriam means not simply that the prior judgment is wrong, but that it is so wrong (it missed a binding statute or ignored a binding judgment) that it has no legal force at all. Indore Development Authority’s understanding of per incuriam, therefore, is itself open to doubt; but what is not open to doubt is the problematic manner in which the Indore Development Authority bench acted.

Unsurprisingly, this led to immediate chaos at the Supreme Court. The issue was brought to the notice of another three-judge bench of the Supreme Court, headed by Lokur J., who had been one of the parties to the original Pune Municipal Corporation decision (full disclosure: the author was, at the relevant time, working in the chambers of one of the senior counsel involved in the petitions). Lokur J. passed an order noting that the question of whether a three-judge bench could hold the decision of another three-judge bench to be per incuriam needed to be considered. Until this question – and the question of whether there needed to be a reference to a larger bench to decide the issue – was decided, he also requested other Supreme Court benches not to continue with disposing off pending land acquisition matters. The very next day, however, two two-judge benches of the Supreme Court – that were hearing the land acquisition cases – referred the matter directly to the Chief Justice. That was how the matter ended up with the Chief Justice (at the time, Dipak Misra CJI), and how the present Constitution Bench came to be set up.

I discuss this history because it reveals that there existed two clear – and very entrenched – views in the Supreme Court about the interpretation of Section 24 of the Land Acquisition Act. These views were entrenched enough for coordinate benches to declare judgments per incuriam, to overrule a long line of settled precedent on one side, and to request benches within the same Supreme Court to temporarily suspend hearing land acquisition cases, on the other (for the avoidance of doubt, this does not imply, of course, an equivalence).

That a five-judge bench is needed to resolve this controversy and lay down the law on the meaning of Section 24 may, ultimately, have been inevitable. However, here is the problem: the December 2017 two-judge bench order doubting the correctness of Pune Municipal Corporation was authored by Arun Mishra J. The February 2018 three-judge bench decision in Indore Development Authority, holding Pune Municipal Corporation to be per incuriam, was authored by Arun Mishra J. The 22 February order referring the question to the Chief Justice – in the teeth of Lokur J.’s order – was also authored by Arun Mishra J. And the five-judge bench that has been set up now to resolve the “conflict” is headed by Arun Mishra J. In other words, the same judge, sitting in a two-judge bench, doubted the correctness of a three-judge bench; then, sitting in a three-judge bench, overruled that decision (over a dissent) in favour of his interpretation of the law; when this was questioned by another three-judge bench, referred the case to the Chief Justice; and is now heading the five-judge bench to decide who was correct.

On any conceivable understanding of natural justice and the rule of law, this is simply unsustainable, especially in a Supreme Court that has thirty-four judges. And this brings us to the root of the problem, which is not really about personalities, but is institutional: the institution of the “master of the roster.” Recall that the Chief Justice’s position as the “master of the roster” (as entrenched in a series of judgments early last year) vests in her absolute discretion to constitute benches and allocate matters in the Supreme Court. When the controversy was at its height last year, I had written that the principle of the “master of the roster” – that originated out of administrative needs, and the requirement of needing someone to administer the court – was very problematic in the context of the modern Supreme Court. The Court’s strength (at that time, 26 judges), combined with the gradual weakening of the gravitational force of precedent effectively means that the Office of the Chief Justice’s administrative power of selecting benches can at least potentially in some cases translate into the power to affect outcomes (if not to determine them).

The composition of the Land Acquisition Bench gives us a textbook example of this. Because of the absolute discretion of the Master of the Roster in constituting benches, there is no questioning why the Bench is the way it is; however, the effect is self-evident – the Bench, which has been set up to resolve an interpretive controversy within the Supreme Court, is led by a judge who has been a protagonist on one side of the controversy, expressing his views not once but on several occasions, and not in extra-judicial forums, but through judgments of the Court. What would a detached and objective observer conclude upon seeing this? They would conclude that in this five-judge bench, at least one vote – the vote of the senior-most judge – is more or less decided (and it is unsurprising that the All India Farmer Association has already written to the Chief Justice making exactly this point).

And the solution – it bears repeating – has to be institutional. As long as absolute power remains concentrated in a single individual – who happens to be occupying the Office of the Chief Justice – issues of this kind will continue to arise, especially when the stakes are as high as they are in this case (as this thread summarises). The Master of the Roster has created a single point of failure, something that – it is well-known by now – is the surest death knell for institutional integrity. And the damage is long-lasting: in this case, for example, even if the Bench is now to be reconstituted, questions will linger over why it was constituted this way in the first place, and the continuing trustworthiness of a process that has been vitiated so badly in the first instance.

There are possible solutions: the establishing of Constitution Benches by a random draw of lots, or having a permanent Constitution Bench with the five senior-most judges (at any given time) occupying it; and so on. But what is clear is that the concept of the “Master of the Roster” has become – and will continue to be – a huge albatross around the neck of the Supreme Court. And in a poly-vocal Court of thirty-four judges, the present controversy has shown just how unsustainable it is.

*In this case, it is also interesting to note that until 2018, a very large number of Supreme Court judgments had followed Pune Municipal Corporation, without demurral about its correctness; the controversy actually began with the Indore Development Authority judgment, where a bench suddenly realised – after four years – that multiple Supreme Court judgments had all gotten it wrong).