“Supreme Court must act as one and be one”?!



What prompted me to pen these few lines is recent Free Press Journal front page headline, “Supreme Court must act as one and be one”. The newspaper report quoted Justice Kurien Joseph saying, “the system exists on certain holy principles, tinkering with it will have no end and the institution will go for ever…when the court is one, it must act as one. If you want it to be one, you will have to make it one.” Justice Joseph so observed while on Bench with Justices Lokur and Gupta.
I must confess, I was shocked, for Justice Joseph is a judge whom I hold in great esteem for his heavenly qualities, erudition and in-depth knowledge of law, so too his boldness to speak out what is right in his mind, no matter what it costs; he did that by holding a press conference led by Justice Chelameshwar.
Justice Joseph’s observation, impromptu, as it appears, is, I am afraid, perilous, and one which has no foundation in law. Because, it was made in the context of a judgment at the hands of a Bench of three judges led by Justice Arun Mishra 2:1 in Indore Development Authority (IDA) vs. Shailendra & Ors., which had held the decision of a bench of three judges in Pune Municipal Corporation (PMC) vs. Harakchand Solanki as per in curiam or by ignorance of law. In that judgment the Bench of Justice Mishra had held that the land acquisition proceedings do not lapse because of non-deposit of the compensation, whereas, the Bench of Justice Lokur in which Justice Joseph made this observation, was seized of an SLP filed by the state of Haryana against Goenka Tourism Corporation, challenging an order of the High Court of Punjab and Haryana. The Counsel for the State of Haryana relied on the judgment of the Bench of Justice Mishra in the case of IDA supra. Per contra, the counsel for the Goenka Tourism Corp. made a grievance that the judgment in the IDA was in conflict with the judgment of a three judge bench in PMC. The grievance of the Goenka Tourism Corp. was that it was not competent for the Bench of Justice Mishra to decline to follow the ratio in PMC by holding the judgment to be per in curium. What Justice Joseph opined, as per the newspaper report, is that, the Bench of Justice Mishra, instead ought to have referred the judgement to a larger Bench if it could not agree with the “ratio” in PMCs case.
Insofar as the Supreme Court is concerned, it was certainly possible for the Bench of Justice Mishra to have referred the case to a larger Bench. But the question is, is such a reference required at all in jurisprudence? It is a fundamental principle of law which the bench led by

Justice Lokur from which Justice Joseph made the above observation, lost sight of, i.e., a judgement of a superior court is binding only if it is rendered curiam, and where it is rendered per in curiam, namely, in ignorance of law, or sub silentio it is not binding. The question then is: who is competent to decide whether a judgment is rendered per curiam and binding or per incuriam and not binding? The answer is simple, elementary and crystal clear: it is the court before which the judgment is cited as authoritative, that has the competence to decide whether the cited judgment is a binding precedent, and none else. If a judgment of the Supreme Court is cited in the lowest court, in terms of hierarchy, namely the munsiff or a judicial magistrate, it is for the munsiff or the magistrate before whom the judgement is cited as precedent, lies the competence to decide whether it is per curiam to be bound by it or is per incuriam, to not to be bound by it.
The legendary H. M. Seervai, in his Constitutional Law of India, 4th Edition, Volume 3, page 2678, para 25.110 has lamented the plight of subordinate judges, faced with the judgments of the Supreme Court which are per incuriam/sub silentio. The learned author has in the same para added that in the Supreme Court, per in curiam and sub silentio judgments offer no difficulty as the same can be easily rectified.
It is unfortunate that Justice Joseph, known for his cool mind and great erudition happened to use strong words as quoted above, though he “asserted” that his observations are “not strong, but painful”.
The Benches of the supreme Court sat as two, three, four etc for convenience as one could see in the early days of the Supreme Court. The numbers do not matter, contrary to the common misconception. Assuming it does, the Bench of Justice Mishra was a coordinate Bench of Three Judges. It was well within the competence that Bench to hold the judgment in PMC as per incurium/subsilentio, which it did in the IDA case. A coordinate Bench is not bound by a “ratio” of another coordinate Bench, even where it is rendered per curium, distinct from per incurium. Article 141 of the Constitution has become a bane. What was intended by the founding fathers was to embody in the constitution the doctrine of stare decisis nay precedent. However, today, precedents are alarmingly misunderstood to be legislations, because the words, “law declared by the Supreme Court” happened to be inserted in the said Article, by the founding fathers, visualizing not, that one day these very words employed by them would be wholly misunderstood!
The author is the President of the National Lawyers’ Campaign for Judicial Transparency and Reforms.