If larger Bench wishes to create intra-court appeal, we are powerless to stop, Division Bench of Supreme Court

A clarification sought by a three-judge bench of the Supreme Court of India regarding the scope of reference by a Division Bench has invited some strong remarks by the Division Bench in question..An order passed yesterday by the Division Bench of Justice Jasti Chelameswar and Justice AM Sapre clearly expresses dissatisfaction with the three-judge Bench of Justices JS Khehar, Kurian Joseph and Arun Mishra. The order goes to the extent of calling it an “intra-court appeal” by the three-judge Bench..The current controversy arises from two orders – one by the Division Bench rendered on May 12 this year in connection with the Vyapam scam, and the other by the three-judge Bench delivered on July 28..May 12, 2016.The Supreme Court rendered a detailed judgment on the said date. However, the two judges, Justice Jasti Chelameswar and Justice AM Sapre had differed on a particular point and had, therefore, directed that the matter be placed before the Chief Justice for appropriate orders..The said order reads as follows:.“In view of the divergence of opinion in terms of separate judgments pronounced by us in these appeals today, the Registry is directed to place the papers before Hon’ble the Chief Justice of India for appropriate further orders.”.The matter then came up for hearing before the Bench presided by Justice JS Khehar on July 28..July 28, 2016.Placing reliance on Article 145(5), it was canvassed before the three-judge Bench that the entire controversy needed to be heard afresh. However, the three-judge bench, referred the case back to the Division bench to clarify whether the whole matter needs to be heard afresh or it should be limited to any particular issue..The said order reads as follows:.“We are of the view that the instant issue can be resolved by referring the matter back to the Bench, for a clarification, of the order dated 12th May, 2016, whether the reference required re-hearing of the entire matter, and if not, the limited issue referred for consideration. .We have chosen to adopt the above course, so as to save precious time of the Court. In the above view of the matter, the Registry is directed to place the files of this case, before Hon’ble the Chief Justice of India, for seeking clarification of the Division Bench which passed the order dated 12th May, 2016.”.August 30, 2016.However, the Division bench which passed the order does not seem to have taken this too lightly..In its order delivered today, it went on to clarify that the disagreement between the two judges was only with respect to a particular issue..“The only point of divergence between both of us is that whether the appellants should be disentitled to retain the benefits of the training in medical course which they secured by virtue of their being beneficiaries of a tainted examination process conducted for the purpose of admitting them for training in medical colleges. .While one of us (Justice Abhay Manohar Sapre) is clearly of the opinion that the case of the appellants deserves no further consideration, the moment we concluded that they are the beneficiaries of such tainted examination process, the other (Justice J. Chelameswar) opined for the reasons recorded that their cases deserve some consideration and also opined that the appellants should be permitted to pursue their medical course and complete the same subject to certain conditions indicated in the order.”.It then goes on to take a dig at the three-judge bench for considering the submission of the parties to hear the case afresh, which it dubs an “intra-court appeal”..“We completely fail to understand the reference made to Article 145(5) of the Constitution in the Order dated 28th July, 2016. We are of the opinion that neither the Constitution of India nor any other law of this country provides an intra-court appeal insofar as the Supreme Court is concerned. .A re-hearing of the entire matter as apparently suggested to the larger Bench, in our opinion, would amount to an intra-court appeal. If the larger Bench of this Court wishes to create such an intra-court appeal, we obviously are powerless to stop it. .We can only record our understanding of the law on the question and it is as recorded above.”.It remains to be seen if and how the three-judge Bench will react to these remarks..Read the 3 orders below..Image courtesy: Website of Supreme Court of India