New Delhi: Even as a three-judge bench contemplates referring the contentious land acquisition ruling to a larger bench, Chief Justice of India Dipak Misra has constituted a five-judge bench to decide the legal conundrum which has seen a split between the Supreme Court benches.
By an administrative order, the CJI has set up the Constitution Bench, headed by himself, to determine whether a three-judge bench could have invalidated another three-judge bench ruling by 2:1 majority.
The five-judge bench is likely to hear the matter on Tuesday next week, immediately after the Holi vacation, in view of the fact that adjudication of land acquisition cases, on the point of compensation and possession, across the country has come to a standstill due to an interim restraint order by the three-judge bench in the top court.
The CJI's fresh directive has come after a bench, led by Justice Arun Mishra, sought an appropriate bench to decide whether the cases of land acquisition could be decided as per the new ruling or not.
In effect, the CJI's order frustrates the pending March 7 hearing by the three-judge bench, comprising Justices Madan B Lokur, Kurian Joseph and Deepak Gupta, which was to consider whether the issue required a deliberation by the larger bench.
The new controversy, which has erupted a month after the unprecedented press conference by four senior-most judges, finds its roots in the February 8 judgment on land acquisition.
The new ruling was by a bench of three judges, in which Justices Arun Mishra and Adarsh K Goel ruled by majority that a 2014 judgment by another three-judge bench should be declared 'per incuriam' — invalid for having ignored law and antecedents.
The 2014 judgment, declared invalid, was by a bench of Justices RM Lodha, Madan B Lokur and Kurian Joseph.
After February 8, when a land acquisition matter came up before a three-judge bench, which included Justices Lokur and Joseph, issues of "judicial discipline, propriety and consistency" were dwelled upon following the question whether it was appropriate for a bench of equal strength to invalidate a judgment by some other bench.
Justice Joseph minced no words in expressing his discontent as he repeatedly observed that the Supreme Court, as an institution, could not look like 14 different courts and that all should work together to make it look like one to upkeep the holy principles of judicial discipline and propriety.
Since the arguments on the point of referring the issue to a larger bench could not be completed in a day's hearing, this bench requested the other Supreme Court benches and high courts not to decide any land acquisition case under the new ruling.
But when one such matter was heard by Justice Arun Mishra's bench the next day, the judge remarked that in his opinion his judgement in the land acquisition case on February 8 was legally tenable. But since the interim order by a three-judge bench was placed before him, he referred the case to the CJI for setting up an appropriate bench.
Acceding to the request, CJI Misra has now constituted the larger bench, which renders the hearing before the other bench, comprising Justices Lokur and Joseph, infructuous as far as reference is concerned. The Constitution Bench does not include either of these two judges.
It could be apt to recall that while Justices Lokur and Joseph were two of the four dissenting judges who held the press conference in January, Justice Mishra was dragged in the controversy over complaints of posting of cases of national importance before some selective benches, which included his court too.
What the Controversy is About
2014: A ruling by a three-judge bench of Justices RM Lodha, Madan B Lokur and Kurian Joseph comes on land acquisition cases
All land acquisition cases, on points of compensation and possession, were decided as per this ruling.
January 2018: Four senior-most judges, including Justices Lokur and Joseph, hold an extraordinary press conference. Apart from the CJI, Justice Arun Mishra also becomes a target over posting of politically sensitive cases before his bench.
February 8: A three-judge bench, headed by Justice Arun Mishra, declares the 2014 ruling to be 'per incuriam'. This decision is by 2:1 majority, comprising Justices Mishra and Goel. Justice MM Shantanagoudar dissents.
February 10-20: Some land acquisition cases get decided as per new ruling.
February 21: A three-judge bench, including Justices Lokur and Joseph who were part of the 2014 ruling, questions the February 8 verdict on point of judicial discipline and propriety. This bench issues the interim restraint order and posts the case to March 7 for deciding whether a five-judge bench should examine the contentions.
February 22: When one land acquisition comes up before Justice Arun Mishra's bench, the restraint order is shown. Justice Mishra observes it is only for a larger bench to examine questions of judicial discipline. He refers the matter to the CJI.
February 24: Even as the other three-judge bench keeps the matter pending, the CJI constitutes a five-judge bench, headed by himself. The case is listed on March 6.
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