Intra-court appeal? 3-judge Bench of Supreme Court recalls two orders passed by Division Bench

Murali Krishnan November 8 2017
Intra-court appeal

On October 27, a Bench of Justices AK Goel and UU Lalit had issued notice to the Central government in a matter pertaining to the delay in finalizing the Memorandum of Procedure (MoP).

However, today, a 3-judge Bench headed by Chief Justice Dipak Misra was constituted to hear the case, and it subsequently disposed of the case.

The Centre and the Collegium have long been at loggerheads over the finalisation of the MoP, ever since the Constitution Bench in the NJAC matter floated the idea of framing a new one.

On, October 16, 2015, a Constitution Bench of the Supreme Court struck down the National Judicial Appointments Commission as unconstitutional. Subsequent to that decision, for the first time, the Court invited suggestions for improving the Collegium system.

Based on the inputs received, the Court on December 16, 2015 passed an order by which it left the task of amending the Memorandum of Procedure to the Central government.

Since it is an exercise to be carried out by the government in furtherance of a Supreme Court judgment, it is merely a step for implementation of the Court’s judgment. In other words, it is not a right that the Executive has, but merely a task left to them to enforce a judicial order.

However, in a figurative tennis match between the two wings of the State, the MoP went back and forth with the Centre and the Supreme Court disagreeing on various aspects. The disagreement between the two was pronounced during the tenure of former Chief Justice of India TS Thakur.

Despite all this, it was indeed surprising that the Supreme Court did not re-open the NJAC case and haul up officials of the Ministry of Law and Justice. This was precisely what late Senior Advocate Anil B Divan said at a panel discussion organised by Vidhi Centre for Legal Policy and the Campaign for Judicial Accountability and Reforms on August 31, 2016.

Anil Divan

“It is a judicial order, recall that order", late Anil Divan

Divan was very categorical in his remarks, stating that the Supreme Court should recall its order by which it had left it to the Centre to finalise the MoP. He also said that the matter should be dealt with by the Supreme Court on the judicial side, given that the Centre was not co-operating with the drafting of the MoP. He said,

“It is a judicial order, recall that order.”

Thus, when the Bench of Justices Goel and Lalit finally took up the matter on the judicial side, it was seen as a welcome move.

The two-judge Bench noted in its order that the issue is of 'larger public interest'.

"...we need to consider the prayer that there should be no further delay in finalization of MOP in larger public interest. Even though no time limit was fixed by this Court for finalization of the MOP, the issue cannot linger on for indefinite period. The order of this Court is dated 16th December, 2015 and thus more than one year and ten months have already gone by.”

Further, the Court had also noted in its order that the MoP should provide for a mechanism so that appointments of regular Chief Justices to High Courts are not unduly delayed.

The Bench had also sought the personal presence of Attorney General KK Venugopal for the next hearing, while requesting Senior Advocate KV Viswanathan to assist the Court. It then proceeded to list the matter for hearing on November 14.

However, in a very surprising turn of events, the causelist published on Supreme Court website yesterday showed that the case was listed before a 3-judge Bench presided by Chief Justice Dipak Misra and Justices AK Sikri and Amitava Roy. This, despite no such order having been passed by the Division Bench to place the matter before a larger Bench.

When the case was taken up by the 3-judge Bench today, the Court proceeded to dispose of the matter, despite submissions by Amicus KV Viswanathan regarding the pressing concern caused due to delay in finalising the MoP.

KV Viswanathan

"It is a matter if grave concern. There is a feeling that there is undue delay. The pendency is shocking. Access to justice is a fundamental right”, Amicus KV Viswanathan

Interestingly, while the Division Bench had sought the assistance of Attorney General KK Venugopal, he was not present in court today. Instead, Additional Solicitor Generals Maninder Singh and PS Narasimha appeared for the Central government.

The transfer of the case to a 3-judge Bench sans any explanation has raised many an eyebrow.

However, the story does not end there. The order on MoP is not the only order which has been recalled by the 3-judge Bench. Another case also stood transferred to the 3-judge Bench today - case regarding speedy hearing of criminal appeals.

The Bench of Goel and Lalit JJ. had ordered that it would explore whether there can be an alternative fora for hearing of criminal appeals within a reasonable time. The Bench had issued notice to Attorney General KK Venugopal. ASG Pinky Anand was requested to apprise the Attorney General about the issue. The 2-judge Bench had also appointed Senior Advocate Dhruv Mehta as Amicus Curiae.

However, the same 3-judge Bench today recalled that order and disposed of the case.

An intra-court appeal is unheard of in the Supreme Court and it is unclear on what ground the two cases were transferred to a 3-judge Bench when the 2-judge Bench had passed no order to that effect.

The last time such a controversy had erupted was during the tenure of late Justice Altamas Kabir, when the SEBI-Sahara case was transferred from the Special Bench hearing the matter to the Chief Justice’s court.

Central selection mechanism

"....once an order is passed by a Bench, even a 5-judge Bench cannot alter a semi colon of the earlier judgment’. Unless it is reviewed by that Bench, there is no intra-court appeal in the Supreme Court", Arvind Datar

After the Supreme Court had ordered Sahara to refund the money and the order was not complied with, SEBI had filed a contempt petition. It was at this juncture that the allegedly “improper” listing of the case by then Chief Justice Kabir happened. The Bench had started dictating an order modifying the order of the Special Bench, when Senior Advocate Arvind Datar intervened on behalf of SEBI. In Datar’s words,

“It led to some amount of unpleasantness…I said that ‘you cannot alter the order. That court has ordered to repay the entire amount. Where is the question of saying I paid so much and did not pay so much’. They said ‘We are a 3-judge Bench’. So I, in the heat of the moment, said that ‘I appreciate that, but once an order is passed by a Bench, even a 5-judge Bench cannot alter a semi colon of the earlier judgment’. Unless it is reviewed by that Bench, there is no intra-court appeal in the Supreme Court.”

It often said that Supreme Court of India is infallible because it is final, and not vice-versa. Today’s hearing in the MoP case and the case on criminal appeals seems to reaffirm that.

Read the two orders below. 

MoP Case
Criminal appeals order

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