Another instance of judicial indiscipline

The Supreme Court on February 8 delivered the decision in Indore Development Authority vs Shailendra, on interpretation of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

In this case, a bench of three judges declared another three-judge bench decision of 2014 in the Pune Municipal Corporation vs Harakchand Misirimal Solanki, as per incurium (judgement delivered without due regard for facts or the law). This case suffers from judicial impropriety and is against the law of precedents laid down by the apex court.

The Indore Development Authority case was initially placed before a two-judge bench. The bench raised doubts on the correctness of decision in the Pune Municipal Corporation case on interpretation of Section 24 of the 2013 Act. The matter was, therefore, referred to the three-judge bench that delivered its decision on February 8.

This method of reference to a three-judge bench to decide the correctness of the decision of a coordinate bench goes against the principle of precedents.

In Pradip Chandra Parija vs Pramod Chandra Patnaik, 2002, a five-judge bench held that the rule of judicial discipline and propriety as well as the theory of precedents required that only a bench of the same quorum may express doubts on the decision of a coordinate bench. In such cases, the matter may be referred to a larger bench. Judicial discipline prohibits a bench of lesser quorum from expressing disagreement with the interpretation of law by a higher bench.

In a 2005 decision in Central Board of Dawoodi Bohra Community vs State of Maharashtra, the Supreme Court laid down detailed guideline of approach for this matter. According to the court, any law laid down by a bench of higher strength is binding on a bench of lower or equal strength.

However, if a bench of lower strength expresses doubts on the interpretation of law by a higher bench, then the bench of lower strength may draw the attention of the chief justice, who may place the matter for hearing before a bench of higher quorum than the bench whose decision is questioned.

For example, if a two-judge bench expresses doubt on the interpretation of law by a three-judge bench, then the two-judge bench may draw the attention of the chief justice of India on this issue.

The CJI, consequently, shall place the matter for hearing before a five-judge bench since the decision of a three-judge bench is doubted. This should have ideally happened in the Indore Development Authority case. Instead, the matter was referred to another three-judge bench.

A bench may only express doubt regarding the correctness of a view of another bench of equal strength, which may consequently be referred before a bench of larger quorum to lay down the law.

Two exceptions

There are two exceptions to this rule as per the Dawoodi Bohra case. When a matter has already been placed for hearing before a bench of higher quorum and the bench on its own feels that the decision by a lower bench needs reconsideration on the points of law, then as an exception to the existing norm and along with reasons provided for its decision, the larger bench may examine the correctness of the decision of the lower bench without any reference being made to it. This situation does not apply to Indore Development Authority case since the correctness of decision of the three-judge bench was referred to a bench of equal strength.

The second exception arises in the form of discretion vested in the chief justice of India regarding roster. The CJI may place any matter for hearing before any bench of any strength. However, with rising concern on this discretionary power of the chief justice regarding roster, it is desirable that the chief justice follows the guideline laid down regarding reference of a decision for reconsideration on points of law to a higher bench.

In any case, judicial impropriety in the Indore Development Authority case does not only arise from the fact that the law laid down by a three-judge bench was referred before another three-judge bench for reconsideration but also that the latter bench held the decision of the former bench per incurium.

In Indore Development Authority case, Justice Shantanagoudar rightly dissented from the majority on the point that the Pune Municipal Corporation case decision is not per incurium. He cited the landmark decision of A R Antulay vs R S Nayak to hold that per incurium decisions arise from ignorance of law, forgetfulness with regard to statutory provisions or of some authority binding on the court.

Per incurium is a narrow concept which is attracted when there is disregard of the law. A coordinate bench in Pune Municipal Corporation case had reached a different conclusion from the present decision, but the former cannot be declared per incurium. This goes against the principle of precedents, which is an important principle in common law system for maintaining uniformity in the interpretation of law.

(The writer is a former Supreme Court judge)