Supreme Court Faces New Controversy Over Land Acquisition Orders

Justice Arun Mishra’s rejection of older SC order on land acquisition law shows the dangers of the Court’s divisions

Justice Arun Mishra (left) held a 2014 decision by Justices Kurian Joseph (centre) and Madan Lokur (right) per incuriam, instead of referring the matter to a higher bench.

(Photo: The Quint)

(A Constitution Bench of the Supreme Court will begin hearings on the interpretation of the Land Acquisition Act of 2013 that arose out of this controversy on 15 October.)

On Thursday, CJI Dipak Misra was handed a new controversy to deal with, as Justices Arun Mishra and AK Goel both referred cases about compensation for land acquisition to him. These developments followed close on the heels of an order passed on Wednesday by a bench headed by Justice Madan Lokur which requested that all such matters be put on hold till it had been decided whether or not these issues needed to be determined by a bench of more judges.

Why is this Controversial?

Justice Lokur’s decision was meant to address the effects of another decision passed recently by Justice Arun Mishra on this issue, which had gone against 4 years worth of Supreme Court precedent. The referrals are presumably a result of his decision.

On 8 February 2018, a three-judge bench headed by Justice Mishra had held, by a 2:1 majority, that a 2014 decision of the Supreme Court was “per incuriam” – ie, it had been decided incorrectly by ignoring a point of law that should have been considered. Decisions held to be per incuriam are considered to have never taken place.

The fact that any decision of the Supreme Court is held per incuriam in another is in itself a matter of controversy, because it means saying that the earlier judges got it badly wrong, which is not supposed to happen at the top court. It’s routine to see decisions of trial courts or High Courts overturned in the apex court, but to reject one of their own decisions, and expressly say that it was passed in ignorance, is a pretty big deal.

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On top of this, it also involves Justice Arun Mishra, who was at the heart of the controversy back in January 2018, when four senior judges of the Supreme Court held a press conference to express their dissatisfaction with the way the top court was functioning. It was widely considered that the tipping point for this was the assignment of the sensitive Judge Loya case to Justice Mishra, who is one of the more ‘junior’ judges of the apex court. Justice Mishra was reportedly upset over the way he felt he was singled out, and then had the Loya case transferred to another bench.

But Was There Anything Wrong with What Justice Mishra Did?

The most problematic part of this is that Justice Mishra held the 2014 decision to be per incuriam even though both decisions were held by three-judge benches. The number of judges is very important because decisions of the Supreme Court are meant to be binding on all subsequent Supreme Court benches of the same or lesser strength. A decision by 3 judges has to be followed by any bench comprising of 3 or 2 judges (Supreme Court judges sit in benches of two judges or more).

It is possible to argue that Justice Mishra’s 3-judge bench technically had the power to do what it did. However, one of those judges actually disagreed with the decision, and there is also a case to be made that only a bench of more judges can hold a case to be per incuriam. Thus, the better way to deal with this would have been to refer the matter to a bench with more judges on it, as convention and judicial propriety would suggest, rather than make the determination themselves.

It was because of this that Justice Madan Lokur’s bench wanted to examine whether to refer it to a higher bench on Wednesday.

What Issue Do These Cases Deal With?

The 2014 decision had been passed by Justices RM Lodha, Madan Lokur and Kurian Joseph. They had held that if compensation was not paid to a landowner whose land had been acquired under the old Land Acquisition Act 1894, then the acquisition would be deemed to have lapsed. For the acquisition to go forward, it would then be covered under the new Land Acquisition Act 2013, which entitled landowners to higher compensation.

This was a landmark decision since there are a huge number of cases currently in the courts in which the landowners who have not been paid are arguing that they should be brought within the 2013 Act, which will give them a better deal. Land acquisitions for government projects or big industrial projects take place under the law even where the landowners don’t want to give up their land. Without proper compensation, the people whose land is acquired are left at a significant disadvantage. The 2014 decision was, therefore, one which was important for such landowners.

How Did This End up Reaching Justices Mishra and Lokur’s Courtrooms?

Justice Mishra - 8 February 2018

Justice Mishra was hearing a case in which a landowner was asking to be brought under the new 2013 Act because the compensation under the old Act had not been deposited in court as required. After considering the arguments, he disagreed with the 2014 decision, and instead said that even if compensation had not been paid to the landowner, the acquisition process would not be affected.

Justice Mishra not only decided a large number of cases on this basis on that day, but also directed other such cases to be sent to him, which he then dismissed.

Justice Lokur - 21 February 2018

Another case dealing with this compensation issue was brought up before Justices Madan Lokur, Kurian Joseph and Deepak Gupta (two of them had been on the bench in 2014 as well). They were surprised when the government lawyer in their case told them that the issue was covered by Justice Mishra’s decision and not the 2014 one.

Several other senior lawyers in the courtroom, including former Attorney-General Mukul Rohatgi, pointed out that Justice Mishra’s decision could create a lot of confusion, since there were so many cases going on in the High Courts and Supreme Court which were all relying on the 2014 decision. They also suggested that Justice Mishra’s bench should not have made a determination of per incuriam and instead referred it to a higher bench, which the judges seemed to agreed with.

As a result, Justice Lokur’s bench passed an order requesting other benches of the Supreme Court to not deal with this issue to avoid inconvenience to parties in the courts, till the question of referral to a larger bench was resolved. They also requested the High Courts to put such cases on hold till this was resolved by the Supreme Court.

What Happens Now? Is This Problem Related to the Earlier Judges’ Controversy?

Justice Lokur’s bench had not decided yet whether a referral to a higher bench was required, but after Justices Mishra and Goel referred it to the CJI, this is what is likely to happen. The CJI has not yet specified a date to examine all of this. When he does, he will need to ascertain, guided by the AR Antulay case of 1984, as well as subsequent judgments like the Dawoodi Bohra case of 2005, which set out the law on per incuriam (as discussed above).

The fact that the whole controversy has Justices Lokur and Kurian Joseph on one side and Justices Arun Mishra and AK Goel on the other, does make it look like the fault lines from the earlier problems are once again being exposed. After all, the former two judges were part of that press conference and signed a letter which obliquely criticised the assignment of cases to Justice Mishra, and expressly criticised one of Justice Goel’s judgments.

At the same time, we should not get carried away and read too much into the situation. Despite what some reporters and commentators have said, Justice Lokur did not actually stay Justice Mishra’s decision or interfere with it in any way. He only requested that cases dealing with similar issues be heard only after the law was settled on this point. His order is worded respectfully and reasonably, and does not in fact stir any further conflict.

The responses of Justices Mishra and Goel also show that they do not wish to escalate the situation, referring the cases even before Justice Lokur had made a final decision.

Regardless, the CJI will have his work cut out for him since it is clear that there are serious differences between several judges of the Supreme Court, and these differences can lead to a great deal of chaos and confusion for not just the parties to various cases, but cases to come as well. As a result, it is important to not only resolve this particular issue, but also put in place a procedure by which any such incidents can be avoided.

Instead of making a decision like Justice Mishra’s, a more prudent and sensible approach needs to be taken, by referring matters to more judges if in doubt, and making sure that all relevant laws, customs and conventions are followed to ensure smooth working of the most important institution in our country.

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