The Controversy Around Justice Arun Mishra. Should Judges Be Deciding The Correctness Of Their Past Rulings?
Justice Arun Mishra is set to head a Constitution Bench to decide a crucial question of interpretation of the land acquisition law. (Source: TheQuint)

The Controversy Around Justice Arun Mishra. Should Judges Be Deciding The Correctness Of Their Past Rulings?

The composition of a Constitution bench in the Supreme Court of India—set up to decide the correctness of two contradictory judgments—has given rise to a controversy at the outset of the hearings. Senior Advocate Shyam Divan, who was appearing for one of the parties, asked for recusal of Justice Arun Mishra on grounds that the bench has to decide on a case on which he has previously ruled.

Justice Mishra, who is now heading the bench, declined the request for recusal on Tuesday and asked the parties to prove as to why he should not hear the matter. He found support from Justice MR Shah and Justice Vineet Saran, both of whom are also part of the Constitution bench, as well as Solicitor General Tushar Mehta.

“I may be criticised, I may not be a hero, I may be a blemished person, but if I’m satisfied that my conscience is clear, my integrity is clear before God, I will not budge. If I think I will be influenced by any extraneous factor, I will be the first to recuse here,” Justice Mishra said in court according to The Hindu.

The Two Contrary Judgments

In 2013, the Parliament passed the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act. Section 24(2) of the Act dealt with ongoing cases where the compensation orders were passed more than five years ago but either the physical possession of the land hadn’t taken place or the compensation amount wasn’t paid to the land owners. The new Act held such acquisitions to be invalid and mandated a fresh process. The terms of compensation were to be governed by the 2013 Act.

Soon after the 2013 law was passed, litigation commenced in the Supreme Court on the interpretation of the term “compensation has not been paid” for the purposes of Section 24(2). This question arose for situations where an acquirer had paid the money to the relevant government authority but the land owner disputed the amount or where the payment wasn’t possible for no fault of the acquirer. In such situations, the law prescribed that the government authority must deposit the compensation amount in the relevant court which will then hear the dispute.

Based on this provision, in 2014, a three-judge bench headed by Justice RM Lodha had held that compensation would be considered to be paid as long as the amount was deposited with the court.

After four years of this being the law, another three-judge bench of the Supreme Court headed by Justice Arun Mishra held this judgment to be bad in law and declared it per incuriam. When a judgement is declared per incuriam, it is considered to have ignored points of law and is treated as never been delivered. The bench held that proceedings under the old land acquisition law won’t lapse as long as the compensation amount was paid to the government authority.

It’s judicial practice that if a Supreme Court ruling is being overturned later by a different bench, then it should include a higher number of judges than in the bench which delivered the earlier judgement. This, however, was not the case here.

Justice Mishra’s order was brought to the notice of Justice Madan Lokur who was part of the 2014 bench. Justice Lokur then passed an order asking courts all over India to not decide on cases pertaining to Section 24(2) of the Land Acquisition Act until the conflict between the two judgments was settled.

Soon after, Justice Mishra’s bench requested the Chief Justice to set up a Constitution bench to resolve this issue. Finally, on Oct. 12, the CJI set up a five-judge bench comprising of Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and S Ravindra Bhat to decide this question of law.

Is There A Case For Justice Mishra’s Recusal?

Three senior counsels BloombergQuint spoke with said that Justice Mishra should not have been included in the five-judge bench.

Usually, judges sit to decide on the correctness of their own judgments if there’s a review petition or when there is a paucity of judges in the court, Senior Advocate Rakesh Dwivedi said, adding that the current situation does not fall under either. He cites the example of the Kesavananda Bharati case of 1973 where a 13-judge bench had to be constituted. Justice Sikri and Justice Shelat—who were part of the earlier bench whose decision was being considered—were part of the larger bench only because at that time, the total strength of the apex court was 14, he points out.

Justice Arun Mishra should not preside. He cannot sit in judgment over his own ruling and should recuse himself. Arun Mishra’s judgment has differed from another three-judge bench judgment and this bench has to virtually decide which of them is correct.
Senior Advocate Rakesh Dwivedi

This, however, is not the only instance in recent times where a judge has been on the bench set up to decide the correctness of his own judgement.

Senior Advocate Sanjay Hegde narrates once such incident which involved former Supreme Court Justice Anil Dave. In 2013, Justice Anil Dave had dissented from the majority judgement of the then Chief Justice of India Justice Altamas Kabir and Justice Vikramjit Sen in the case involving the validity of National Eligibility cum Entrance Test. Later, when the case was heard by a Constitution bench, Justice Dave was included in it and the majority judgement agreed with his earlier dissenting view.

Dwivedi, however, said that just because this has happened in the past does not make it a correct precedent and Hegde agrees.

If a view of the judge delivered in a smaller bench composition is being questioned by a larger bench, then he cannot be seen to influence the outcome of that case. The lawyers involved during the hearing may feel that they stand on an uneven footing because the judge may suffer from confirmation bias.
Senior Advocate Sanjay Hegde

“Of course, a judge can change his mind after hearing the arguments. But we follow a principle that justice must not only be done but also appear to have been done,” said Hegde.

To be clear, Justice Mishra did not have any role in deciding the composition of the Constitution bench since that is the sole prerogative of the CJI. Also, the Supreme Court does not have any rules which bar a judge to sit on the bench deciding the correctness of his own past judgement.

But propriety demands that such a situation must be avoided, said Senior advocate Arvind Datar. Datar’s view is that the bench in this case should have consisted of judges who are completely independent of the two judgments in question.

In my opinion it is not right. You found fault with an earlier judgement and you decided to refer it to five judges. So, the constitution bench should have been composed of not the one who referred it but it should have been an independent bench. He should not hear it is my opinion. I think propriety demands that there should be a completely independent bench.
Senior Advocate Arvind Datar

The Constitution bench will continue hearing the case on Wednesday.

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