Three-judge Supreme Court flip-flop shows top court's credibility again under threat; CJI Misra must accept onus
Dipak Misra's conduct as CJI 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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