Recently, a division Bench of the Supreme Court, led by the Chief Justice of India (CJI) Dr D.Y. Chandrachud, passed an Order resulting in all proceedings based on the dictum in Ritu Chhabaria versus Union of India & Ors. (a progressive Order dealing with the right to default bail) being deferred by a coordinate Bench of the Supreme Court. The Order passed by the Bench led by the CJI is problematic, and has been criticised, among others, by the civil society watchdog, the Campaign for Judicial Accountability and Reforms. Important questions, of propriety, the issue of intra-court appeal before the Supreme Court, and the convention practice of the Supreme Court, have been raised. Here is an analysis of what is threatening to be a trend rather than an aberration.
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LAST month, a division Bench of the Supreme Court comprising Justices Krishna Murari and C.T. Ravi Kumar gave a detailed judgment in the case of Ritu Chhabaria versus Union of India & Ors. on the seminal issue of personal liberty under Article 21 (right to life and personal liberty) of the Constitution and the right to default bail under Section 167(2) of the Code of Criminal Procedure (CrPC). The judgment, in essence, put a restriction on the power of the State and tricks used by investigating agencies to frustrate the purpose of law, thus resulting in continued violation and breach of an accused's fundamental rights to secure fundamental liberty.
However, a couple of weeks ago, another division Bench of the Supreme Court, led by the Chief Justice of India (CJI) Dr D.Y. Chandrachud, in another petition, passed the following order:
"1. Upon being mentioned, taken on board.
The impact of this order was that all proceedings based on the dictum in Ritu Chhabaria were deferred by a coordinate Bench of the Supreme Court. The latter order passed by the Bench led by the CJI is problematic, and has been criticised, among others, by the civil society watchdog, the Campaign for Judicial Accountability and Reforms.
“It is unequivocally settled that the decisions of larger Benches are binding, and it is also settled that if a Bench of lesser strength seeks to differ from a binding precedent, then a procedure has to be followed, which involves the CJI, as master of the roster, to constitute a Bench of appropriate strength.
Though the power of the subsequent Bench is unfettered, it raises an important question of propriety, the issue of intra-court appeal before the Supreme Court, and the convention practice of the Supreme Court. Below, we will analyse these key issues by highlighting the increasingly frequent instances (such as the R.P. Luthra petition episode as well as the interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013) of what has become a trend, rather than an aberration.
The Supreme Court comprises the CJI and 33 other judges. Its day-to-day affairs and working are governed by the Supreme Court Rules, 2013 and practice directions issued by the CJI, as administrative head of the institution.
In some recent judgments, the court has had the occasion to examine the role, function and powers of the CJI allocated under the Constitution. The court sits in Benches and not en banc, as the American Supreme Court does. It is precisely for this reason that it has vast jurisdictions, and handles a vast number of cases every year in the exercise of different jurisdictions.
However, the power of the CJI as the 'first among equals' and the 'master of roster' has been laid down solidly and crystallised. It is also unequivocally settled that the decisions of larger Benches are binding, and it is also settled that if a Bench of lesser strength seeks to differ from a binding precedent, then a procedure has to be followed, which involves the CJI, as master of the roster, to constitute a Bench of appropriate strength.
The issue at hand became more important yet complicated as the subsequent division Bench was headed by the CJI. It is a reminder of another historic and unprecedented incident: the press conference by four senior-most puisne judges of the Supreme Court in 2018. The judges had, among other things, referred to a particular case (R.P. Luthra versus Union of India & Anr) which was being handled by another division Bench of the Supreme Court and was later listed before a Bench headed by the then CJI, only for the petition to be junked subsequently.
An undated letter released by the four Supreme Court judges in the 2017 press conference referred to an order dated October 27, 2017 in R.P. Luthra. The letter raised the concern and core issues involved in the R. P. Luthra case as:
"In above context, we deem it proper to address you presently with regard to the Order dated October 27, 2017 in R.P. Luthra versus Union of India to the effect that there should be no further delay in finalising the memorandum of procedure in the larger public interest. When the memorandum of procedure was the subject matter of a decision of the Constitution Bench of this court in Supreme Court Advocates-on-Record Association and Anr. versus Union of India [(2016) 5 SCC 1] it is difficult to understand as to how any other Bench could have dealt with the matter."
“The power exercised by then CJI Dipak Misra as 'master of roster' to list the matter before a three-judge Bench (which comprised Chief Justice Dipak Misra himself) was an arbitrary exercise of power. It gives an impression that the three-judge Bench was superior in power and jurisdiction, and could sit as an appellate court over the order of the two-judge Bench dated October 27, 2017.
The R.P. Luthra case pertained to the delay in finalisation of the memorandum of procedure (MoP) for appointment of judges pursuant to the decision of the Constitution Bench of the Supreme Court in Supreme Court Advocates-on-Record Association. Initially, R.P. Luthra was placed before a two-judge Bench of the Supreme Court comprising Justices A.K. Goel and U.U. Lalit, which issued notice to the Union government and appointed a senior advocate as amicus curiae in the case through the order dated October 27, 2017, which reads as:
"However, we need to consider the prayer that there should be no further delay in finalisation of the MoP in the larger public interest. Even though no time limit was fixed by this court for finalisation of the MOP, the issue cannot linger on for an indefinite period. The order of this court is dated December 16, 2015 and thus more than one year and ten months have already gone by."
Further, the court directed to list the petition on November 14, 2017 for further hearing. However, in a curious development, the same petition, that is, the R.P. Luthra petition, got listed before a three-judge Bench headed by the then CJI on November 8, 2017 itself. Perhaps, the allocation of judicial work by the master of the roster was being questioned by fellow judges of the Supreme Court in the press conference. Perhaps the way the R.P. Luthra petition was dismissed by the then CJI-led three judge Bench through its order dated November 08, 2017 certainly left more questions unanswered relating to the practice, convention and procedure of allocating cases, and about the nature of power being exercised by the CJI as 'master of roster'.
The three-judge Bench of the court dismissed the R.P. Luthra petition; its order read thus:
"As far as the other prayers are concerned, there was no necessity or need to proceed with the same, more so, in view of the Constitution Bench judgments in Supreme Court Advocates-on-Record Association and Another versus Union of India (2016) 5 SCC 1 and Supreme Court Advocates-on-Record Association and Another versus Union of India, AIR 2016 SC 117.
Accordingly, the Order passed on October 27, 2017, relating to other aspects barring non-entertainment of the special leave petitions, stands recalled.
In view of the aforesaid analysis, there is no justification or warrant to keep the special leave petitions pending and the same are, accordingly, disposed of."
Rightly, and for the most upright and ardent reasons, the entire episode of R.P. Luthra finds a reference in the letter addressed to the then Chief Justice by the four senior-most judges, who went on to address the media on January 12, 2018.
“The Supreme Court refers to both a two-judge Bench and a three-judge Bench as 'division Bench', and has clearly held that a division Bench of three judges cannot overrule the decision of a division Bench of two judges.
It raises the following legal questions:
"i) Whether the three-judge Bench (which dismissed the RP Luthra petition) was constituted by CJI in absence of any reference order by the division Bench?
ii) Whether the three-judge bench was sitting in appeal over the order passed by the division Bench dated October 27, 2017 or alternatively 'whether Constitution of India or any other law of this country provides an intra-court appeal in so far as the Supreme Court is concerned'?
iii) Whether the principle of collegiality and equality among the judges of the constitutional courts were breached by arbitrary exercise of powers conferred to the CJI as 'master of roster' as per constitutional convention?
With regard to the first question, the order dated October 27, 2017 passed by the two-judge Bench in R.P. Luthra did not make any reference to constitute a larger Bench of three or more judges, either in terms of Article 145(5) of the Constitution or by requesting the Chief Justice of India to constitute a Bench of three judges by highlighting any question of constitutional importance. It is also unequivocally stated that the three-judge Bench was not sitting in appeal against the order dated October 27, 2017 by virtue of the dictum laid down by the Supreme Court in Nidhi Kaim versus State of Madhya Pradesh (2017) and Javed Ahmed Abdul Hamid Pawala versus State of Maharashtra (1985).
The dismissal of the R.P. Luthra petition by the three-judge Bench could be justified on account of the prerogative and power of the CJI as 'master of roster. However, the patent illegality of the order dated November 8, 2017 in R.P. Luthra is discernible in light of the dictum laid down in Nidhi Kaim as thus:
"We are of the opinion that neither the Constitution of India nor any other law of this country provides an intra-court appeal insofar as the Supreme Court is concerned. A re-hearing of the entire matter as apparently suggested to the larger Bench, in our opinion, would amount to an intra-court appeal. If the larger Bench of this Court wishes to create such an intra-court appeal, we obviously are powerless to stop it. We can only record our understanding of the law on the question and it is as recorded above."
Nidhi Kaim was decided by a two-judge Bench of the Supreme Court vide its judgement dated May 12, 2016. The two judges passed separate judgments and there was divergence of opinion on certain issues. So, the court passed the following operative order:
"In view of the divergence of opinion in terms of separate judgments pronounced by us in these appeals today, the registry is directed to place the papers before the the Chief Justice of India for appropriate further orders."
Consequently, the matter was placed before a three-judge Bench, which in turn, through its order dated July 28, 2016 referred back to the two-judge Bench for clarification in the following terms: "Whether the reference required rehearing of the entire matter, and if not, the limited issue referred for consideration."
“If the CJI, as 'master of roster', starts exercising their power in an arbitrary manner, as highlighted and discussed in the context of R.P. Luthra, the principle of collegiality fostering mutual understanding, respect and trust among the judges of constitutional courts is butchered.
The two-judge Bench again, vide its order dated August 30, 2016 in Nidhi Kaim, clarified the point of divergence as:
"The only point of divergence between both of us is that whether the appellants should be disentitled to retain the benefits of the training in the medical course which they secured by virtue of their being beneficiaries of a tainted examination process conducted for the purpose of admitting them for training in medical colleges?"
Although, unlike in the Nidhi Kaim decision, in R.P. Luthra, there was no difference of opinion among the judges of the two-judge Bench comprising Justices Goel and Lalit. So, the power exercised by then CJI Dipak Misra as 'master of roster' to list the matter before a three-judge Bench (which comprised Chief Justice Dipak Misra himself) was an arbitrary exercise of power.
Whether R.P. Luthra deserved to meet the same fate on merit or not, at least the exercise of power by the then CJI as 'master of roster' to list before his bench on November 8, 2017 was arbitrary in nature. It gives an impression that the three-judge Bench (comprising Chief Justice Dipak Misra) was superior in power, jurisdiction and could sit as an appellate court over the order of the two-judge Bench dated October 27, 2017.
At this juncture, it would be pertinent to remember the succinct precedent laid down by the Supreme Court in Javed Ahmed Abdul Hamid Pawala wherein the following was held as a matter of prudence and a part of precedent by the Supreme Court:
"Whether a division Bench of three judges can purport to overrule the judgment of a division Bench of two judges merely because three is larger than two. The court sits in divisions of two and three judges for the sake of convenience and it may be inappropriate for a division Bench of three judges to purport to overrule the decision of a division Bench of two judges. [Vide Young versus Bristol Aeroplane Co. Ltd. 1944 (2) ALL ER 293] It may be otherwise where a full Bench or a Constitution Bench does so."
As far as nomenclature is concerned, the Supreme Court refers to both a two-judge Bench and a three-judge Bench as a 'division Bench', and has clearly held that a division Bench of three judges cannot overrule the decision of a division Bench of two judges. As per the constitutional structure in this scenario and circumstances, only a reference order made by a single judge, a two-judge Bench or three-judge Bench or the CJI, can place a matter de novo before a Constitution Bench composed of five judges. (The only exception could be that the CJI, on their administrative side, records reasons for exercising such power to list before the other co-equal Bench or the Bench of higher strength, and seeks the mutual trust and confidence of fellow judges, following the principle of collegiality.)
If the CJI, as 'master of roster', starts exercising their power in an arbitrary manner, as highlighted and discussed in the context of R.P. Luthra, the principle of collegiality fostering mutual understanding, respect and trust among the judges of constitutional courts is butchered. The administrative decision of the CJI as 'master of roster' to list the R.P. Luthra case before a Bench comprising three judges flouts established practice and convention. As R.P. Luthra and the two-judge Bench Order dated October 27, 2017 was seeking the enforcement and compliance of another Constitution Bench decision in Supreme Court Advocates-on-Record Association on the issue of finalisation of the MoP, the petition ought to have been listed before a Constitution Bench only.
In Roma Sonkar versus Madhya Pradesh State Public Service Commission (2018), the Supreme Court signalled the importance of collegiality among brother judges while sitting in different Bench compositions, involving adjudicatory exercise under various jurisdictions, that is, original, revisional, appellate and so on. It observed and clarified the principle of collegiality and equality among judges of Constitutional courts, irrespective of the composition of the Bench— single judge, division Bench, full Bench, as under:
"The learned single judge as well as the division Bench exercise the same jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by the division Bench is provided in terms of the power of the high court but that does not mean that the single judge is subordinate to the division Bench."
Certainly, the above observation in Roma Sonkar seeks to point to the deeper malaise present in the working of constitutional courts. The issue of composition and strength of Benches and the supposed inherent superiority of some Benches over the other has become increasingly apparent in recent years.
Another notable incident concerning the principle of 'collegiality' among the different Benches of the Supreme Court was with regard to the interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act. A three-judge Bench of the Supreme Court, while hearing the case of State of Haryana versus. G.D. Goenka Tourism Corporation Ltd (2018) disagreed with the decision rendered by another three-judge Bench in Indore Development Authority versus Shailendra (2018), which overturned the decision of another three-judge Bench in Pune Municipal Corporation versus Harakchand Misirimal Solanki (2014) on the same legal issue, that is, the interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act.
The three-judge Bench in G.D. Goenka Tourism Corporation Ltd. observed that:
"Taking all this into consideration, we are of 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 secretary general will urgently communicate this order to the registrar general of every high court so that our request is complied with."
The differential approach of different Benches of constitutional courts on the same issue or question of law is inherent in a system where the court sits in Benches and not en banc. However, the message of 'oneness' as an institution must be considered as an essential feature of the collegiality principle. The Supreme Court acknowledged the different standards being applied by different courts to find out whether a concurrent decision is patently illegal or unjust; however, it also acknowledged the impact of 'individuality' on the justice delivery system, where the court sits in different Benches.
Almost three decades ago, in Variety Emporium versus V.R.M. Mohd. Ibrahim Naina (1984), the Supreme Court observed and highlighted the issue thus:
"Quantitatively, the Supreme Court has a vast jurisdiction which extends over matters as far apart as excise to elections and Constitution to crimes. The Court sits in Benches and not en banc, as the American Supreme Court does. Indeed, even if the entire court were to sit to hear every one of the eighty-thousand matters which have been filed this year, a certain amount of individuality in the response to injustice cannot be avoided.
“The message of 'oneness' as an institution must be considered as an essential feature of the collegiality principle.
"It is a well-known fact of constitutional history, even in countries where the whole court sits to hear every case, that the composition of majorities is not static. It changes from subject to subject though, perhaps, not from case to case. Personal responses to injustice are not esoteric. Indeed, they furnish refreshing assurance of close and careful attention which the judges give to the cases which come before them. We do not believe that the litigating public will prefer a computerised system of administration of justice: only, that the chancellor's foot must tread warily."
It is feared that there could be misuse, where litigants or advocates start practising 'Bench-hunting' to get a favourable order or desirable order from a particular Bench. However, the Supreme Court in Sub-Committee of Judicial Accountability versus Union of India & Ors (1991) has opined:
"Indeed, no coordinate Bench of this court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench. If a request is made that a judge should refuse to hear a matter either on the ground that there was a reasonable apprehension or likelihood of bias or on any similar or other grounds, the decision on it is exclusively that of the particular judge or the Bench of which he is a member.
"At that stage, another coordinate Bench cannot be invited to examine and pronounce on this question. It is for that Bench and that Bench alone to decide that question. Judicial propriety and discipline as well as what flows from the circumstances that each division Bench of this Court functions as the court itself renders any interference by one Bench with a judicial matter before another lacking as much in propriety as in jurisdiction."
Today, the call for reform and to arrest the trend of judicial decay in the Indian context is gaining ground due to the increased incidence of incidents impacting the independence, integrity and reputation of constitutional courts. One could only hope and wish to have a system in which the judges of constitutional courts have all the qualities which Justice K. Ramaswamy observed in his seminal decision in M. Krishna Swami versus Union of India (1992) as:
"The judges of higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life. They should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or any sort.
"The actual as well as the apparent independence of the judiciary would be transparent only when the office holders endow those qualities which would operate as impregnable fortresses against surreptitious attempts to undermine the independence of the judiciary. In short, the behaviour of the judge is the bastion for the people to reap the fruits of democracy, liberty and justice and the antithesis rocks the bottom of the rule of law."
The emerging position of law, as laid down in the above judicial precedents, recognises the basic tenets of the principle of collegiality. It calls for more fairness and transparency, particularly in the exercise of power by a 'master of roster' in order to instil the rule of law and regain denuding public trust.
“Collegiality calls for more fairness and transparency, particularly in the exercise of power by a 'master of roster' in order to instil the rule of law and regain denuding public trust.
The current scenario can be aptly summed up in the prolific words of American jurist and legal scholar Justice Oliver Wendell Holmes: "We are quiet here but it is the quiet of a storm centre".