Alok Prasanna Kumar - Three-judge Supreme Court flip-flop shows top court's credibility again under threat; CJI Misra must accept onus
CJI Dipak Misra's conduct as Chief Justice of India, whether his assertion of power as
"Master of the Rolls" or fearfulness shown in the face of Government
interference, has been far more damaging to the institution than any other
threat the SC has faced in its history.
It seems like a
headline from The Onion - three-judge bench of the Supreme
Court holds that three-judge bench judgment overruling of three-judge
bench judgment stands overruled. But that is precisely what happened (in some
ways) when the Supreme Court passed its order on 21 February in State of
Haryana versus GD Goenka Tourism Corporation Limited. How did this come to
pass?
It starts with one of
the worst drafted pieces of legislation on the books - the Right to
Fair Compensation and Transparency in Land Acquisition, Relief and
Rehabilitation Act, 2013. It is a law replete with the most basic of
drafting errors which not only fail to guarantee a modicum of rights to
those whose lands have been acquired by the government, but make it easier to
subvert such rights and cause more litigation. One of the most
contentious provisions (in terms of the number of cases which have arisen under
it) is Section 24 of the law which ostensibly tries to put an end to land
acquisition proceedings under the Land Acquisition Act, 1894 which have
lingered for too long.
Specifically those land acquisition proceedings which
begun prior to 2008 and where the compensation has not been paid, are deemed to
have come to an end when the new law came into force. The question is: what
do they mean by “compensation has not been paid”? The crux of most land
acquisition disputes is the compensation, with the government offering a
pittance and the landowners seeking more. The amount offered is often refused
as the matter is taken up in litigation.
Does this then constitute lack of
“payment” on the part of the government? One answer was given
by the Supreme Court in Pune Municipal Corporation versus Harakchand Misrimal
Solanki in 2015: so long as the compensation was not deposited in
court or paid directly to the landowners, it cannot said to have been paid for
the purposes of the 2013 law. This 2015 judgment by a three-judge bench held
the field until another three-judge bench in Indore Development Authority versus Shailendra in
2018 took the view that it was sufficient even if the compensation was paid
into the treasury so long as it was offered to land owners and they rejected
it.
These two contrary
views cannot be immediately reconciled. The shoddy drafting of the 2013 law
meant that there was no coherent definition of what “compensation has not been
paid” means for the purposes of Section 24. When two benches of equal strength
take contrary views, convention (and judicial
precedent) require that the issue be referred to the Chief Justice for the
constitution of a larger bench. Normally, this is what happens.
But these are not
normal times. Two of the judges in the Pune Municipal Corporation case
were Justice Kurien Joseph and Justice Madan Lokur who were part of the 12
January press conference. The 2018 judgement was delivered by Justice Arun
Mishra — the one whose handling of sensitive matters (among other things)
led to the press conference in the first place. It would take wilful blindness
to believe that these facts did not have a bearing on what happened next.
In a separate land
acquisition case, a bench of Justice Lokur, Justice Joseph and
Justice Deepak Gupta in the GD Goenka Tourism case not
only disagreed with the finding in the Indore Development
Authority case, but also directed that no High Court should follow it
and requested all other coordinate benches of the Supreme Court to defer
hearing matters related to it! This is an order without precedent and is in
direct breach of Article 141 of the Constitution of India.
What happens next is
not quite clear. Neither three-judge bench thought it fit to refer the issue to
the Chief Justice of India (CJI) for constitution of a larger bench to clear
the conflicting interpretation — a sign perhaps of the confidence (or lack
thereof) being reposed in the CJI by his fellow judges. It was only on 22
February, after the open conflict between the benches became public, that two
benches (headed by Justice AK Goel and Justice Mishra respectively) chose to refer the question of the interpretation of
Section 24 to the CJI, putting the ball firmly in his court.
Will the CJI, as he
has in the past, suo motu take away the GD Goenka
Tourism case from Justice Lokur’s bench? Will he, in the fitness of
things, constitute a five-judge bench to address the doctrinal differences? Or
will he stay frozen in the state of inertia that has brought this state of
things to pass?
It is a reminder, if
another were needed, that the Supreme Court has ceased to function as an institution. Of course court
hearings are taking place, cases getting listed and judgments are being
delivered but these feel only like the motions being gone through. A largely
complicit and pliant Supreme Court Bar is unwilling to face the facts and hold
the judges accountable for their conduct.
The court’s credibility as a
strong and capable constitutional institution lies in shreds. In all of this, the
blame lies squarely at the feet of CJI Dipak Misra. His conduct as Chief
Justice of India, whether his assertion of power as "Master of the
Rolls" or fearfulness shown in the face of Government interference, has
been far more damaging to the institution than any other threat the SC has
faced in its history.
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