I don’t appreciate this: Justice Nagarathna on intra-court appeals

The Centre had on October 10 moved an application  before the CJI to “recall” an  order passed on October 9 by a bench comprising Justices Hima Kohli and Nagarathna.  In a dilution of procedure, the Supreme Court has seen several instances in 2017 of valid orders by two-judge benches being ‘reconsidered’ out of turn by the CJI which are termed ‘intra-court’ appeals. This practice also leads to inconsistency in judicial orders and undermines other judges.

As a polyvocal court, the Supreme Court sits in nearly 15 two-judge bench combinations except for the CJI who routinely sits in a three-judge bench combination. Judicially, every judge is equal while administratively, the CJI is the head of the Court.

Several intra-court appeals were heard during Justice Misra’s tenure as CJI which was marked by controversies on his role in assigning cases as master of roster. In November 2017, a bench of Justices A K Goel and U U Lalit had issued notice to the Centre in a case seeking explanation on the delay in finalising the Memorandum of Procedure (MoP) to appoint judges. Only a day later, then CJI Dipak Misra constituted a special bench comprising himself, Justices A K Sikri and Amitava Roy and disposed of the case with no effective directions. In October 2017, a case with the bench of Justices Goel and Lalit on speedy hearing of criminal appeals was also transferred to a bench headed by then CJI Misra himself and then “recalled” the two-judge bench order. In September 2018, the same bench of Goel and Lalit had delivered a verdict on Section 498A of the Indian Penal Code which deals with dowry deaths. This ruling, too, was subsequently reversed by a bench led by then CJI Misra.

In 2018, in a land acquisition case, a three-judge bench comprising Justices Adarsh Kumar Goel, Arun Mishra and Mohan Shantanagoudar, in a 2:1 majority invalidated a 2014 judgment by another 2014 three-judge bench on the same issue, and declared it “per incuriam”, or ‘lacking in regard for the law and facts’. A bench of same strength cannot sit in appeal over a judgement of another bench.

However, when the Bar protested, then CJI Misra set up a larger five-judge bench headed by Justice Arun Mishra to resolve the issue.