ON the face of it, the controversy over Justice Arun Mishra’s refusal to recuse himself from the Constitution Bench of the Supreme Court in Indore Development Authority vs Manohar Lal and Others appears to be just a legal quibble over how to interpret a clause in a law that deals with the award of compensation to those whose lands have been forcibly acquired by the state. But beneath the surface, as one is apprised of the facts and the background, it is clear that conventions, propriety and larger legal principles that have sustained the functioning of the court as an institution all these years are at stake.

In 2013, the United Progressive Alliance government replaced the outdated 1894 Land Acquisition Act with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act. As the key words in the title of the 2013 Act make it clear, the emphasis is on fair compensation and transparency. The 2013 Act, therefore, sought to achieve this through Section 24(2).

Under this provision, where the land proceedings were initiated under the 1894 Act and where award had been made five years or more before the commencement of the 2013 Act and the state had not taken possession of the land or paid compensation to those whose lands had been acquired, the acquisition shall be deemed to have lapsed. Such lapsing would mean that if the state was still keen on acquiring the same land for public purpose, it had to initiate fresh proceedings under the 2013 Act, which entitled the same landowner to a higher compensation than what he was entitled to under the old Act.

The 1894 Act envisaged situations wherein the state could not pay compensation because the landowner did not bother to receive it. Therefore, Section 31 of the 1894 Act required that the District Collector, known as the Special Land Acquisition Officer and under whose jurisdiction the land acquired by the state fell, should deposit the amount of compensation in the court. This provision along with Section 24(2) of the 2013 Act came under review in 2014 before a three-judge bench of the Supreme Court, presided over by Justice R.M. Lodha (who subsequently became the Chief Justice of India (CJI) and also comprising Justices Madan B. Lokur and Kurian Joseph, in Pune Municipal Corporation vs Harakchand Misirimal Solanki. This bench clearly held that if the compensation payable under the 1894 Act was not deposited in a court as required under Section 31 of the 2013 Act, then the acquisition under that Act should be deemed to have lapsed in cases where the compensation was not received by the landowners.

On February 8, 2018, the decision in the Pune Municipal Corporation came under review in Indore Development Authority vs Shailendra before a bench comprising Justices Adarsh Kumar Goel, Arun Mishra and Mohan M. Shantanagoudar. In this case, the judgment authored by Justice Mishra, on behalf of himself and Justice Goel, held that it was not necessary that the compensation amount should be deposited in court as provided in Section 31(2) of the 1894 Act. The bench held that at the most, in appropriate cases, the failure to deposit the amount in court may result in a higher rate of interest on the compensation as envisaged under Section 34 of the 1894 Act and not a lapse of acquisition.

It said claimants/landowners after refusing the compensation could not take advantage of their wrong and seek protection under the provisions of Section 24(2) of the 2013 Act.

Justice Shantanagoudar agreed with the other two judges that no harm was done or prejudice caused if the state deposited compensation in the treasury (instead of the court) when landowners did not appear to receive it. He reasoned that by depositing the amount in the treasury, the state showed its bona fide intention to go through with the acquisition and give the beneficiaries their due compensation. In such a case, it could hardly be punished with a lapse, except that it was liable to pay interest as prescribed under the Act, he suggested.

“Practical considerations make it clear that the Collector may not be able to individually reach out to thousands of claimants and pay them the compensation in person at the earliest. It is only reasonable that the Collector be allowed to deposit the compensation in the accounts of individual claimants in the treasury and to inform the claimants to get the same released,” he explained.

But Justice Shantanagoudar dissented from the other two judges that the judgment in Pune Municipal Corporation was rendered per incuriam inasmuch as it could not be said to have been rendered through lack of care or out of ignorance of certain important factors. (Per incuriam is a Latin term meaning “through lack of care” or through inadvertence (of a judicial decision) wrongly decided, mainly because the judges were ill-informed about the applicable law. A judgment that was decided per incuriam does not have to be followed as precedent by a court.)

In Justice Shantanagoudar’s view, the judgment in Pune Municipal Corporation was not rendered per incuriam (as held by the other two judges on the bench) as the conclusion was reached by proceeding in detail on the interpretation of the relevant statutory provisions. Therefore, he suggested that the proper course before the bench was to refer the matter to a larger bench as a bench must follow the decision of a coordinate bench.

On February 21, 2018, another three-judge bench, comprising Justices Lokur, Kurian Joseph and Deepak Gupta, while dealing with a similar case, deplored Justices Mishra and Goel for the lack of judicial discipline in declaring the 2014 judgment in Pune Municipal Corporation as per incuriam. Justices Lokur, Kurian Joseph and Deepak Gupta expressed concern over institutional integrity if a bench of three judges refused to be bound by a precedent laid down by a bench of similar strength without making a reasoned reference for its reconsideration by a larger bench. The Justice Lokur-led bench, therefore, “stayed” the operation of the judgment in Indore Development Authority until the CJI constituted a larger bench to resolve the contradiction between the benches.

On February 22, 2018, the benches presided by Justices Mishra and Goel made separate references requesting the CJI to set up a Constitution Bench to resolve the issue, apparently aggrieved by the admonition by the Justice Lokur-led bench the previous day.

The recusal plea

Although the then CJI, Dipak Misra, agreed to set up a Constitution Bench to resolve the intra-court conflict on the interpretation of the Land Acquisition Act, it was 19 months before one was constituted. The present bench, comprising Justices Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat, inevitably surprised observers as it is led by the same Justice Mishra whose conduct in declaring the 2014 judgment in Pune Municipal Corporation as per incuriam had come in for severe criticism by not only the third judge on the bench in the Indore Development Authority case in February 2018 but by three other judges sitting on another bench. It was, therefore, natural for the litigants before the Constitution Bench to express apprehension of bias by Justice Mishra and seek his recusal on the grounds that he was predisposed to favour the majority judgment in Indore Development Authority because of the strong views expressed by him therein.

The respondents who sought Justice Mishra’s recusal contended that as the jurisdiction before the Constitution Bench was corrective, in order to avoid a conflict of opinion, a judge who had expressed an opinion in a smaller bench could not hear the same opinion when it was under challenge before a larger bench. Solicitor General Tushar Mehta, however, argued against Justice Mishra’s recusal as in his view recusal is sought by powerful lobbies and any recusal would defeat the oath of office taken by a judge.

Justice Mishra, in his judgment on the issue, held that it was the consistent practice of the Supreme Court that judges who had rendered the earlier decision presided over or were part of the larger bench. If that was so, it was not clear why Justice Shantanagoudar, who dissented from him in Indore Development Authority in February 2018, was not included in the present Constitution Bench.

Justice Mishra said: “For having taken a view once, if recusal is to be made, it would be very difficult to get a judge to hear and decide a question of law. We have to correct the decision, apply the law, independently interpret the provisions as per the fact situation of the case which may not be germane in the earlier matter. A judgment is not a halting place, it is a stepping stone. It is not like a holy book which cannot be amended or corrected.”

Those who sought his recusal did not disagree with his reasoning in his judgment. Rather, they interpreted it as an admission that the recusal plea was justified because the fact situation of the case was germane in the earlier matter. Moreover, it is a common practice in the Supreme Court for judges to recuse themselves from hearing an appeal against a High Court judgment voluntarily if they happened to hear and deliver that judgment, while in the High Court, before their elevation to the Supreme Court. If in such cases the correctness of the High Court judgment is under appeal before the Supreme Court, in the land acquisition cases before the Constitution Bench, the correctness of Justice Mishra’s judgment on February 8, 2018, was to be reconsidered.

The respondents agreed that the Constitution Bench was not exercising its appellate jurisdiction but was only seeking to lay down the law. But they said the result would be the same as the bench was expected to pronounce on the correctness of one of the two conflicting judgments.

The senior counsel Shyam Divan, representing one of the respondents, cited Rule 24(5)(b) of Rules of Court of the European Union, which bars any judge presiding over cases where judgments delivered by him or her are to be adjudicated upon in appeal. Justice Mishra, however, dismissed his contention, saying there was no appeal within the Supreme Court. “I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse,” he declared.

The four other judges on the Constitution Bench refrained from commenting on Justice Mishra’s reasons for non-recusal but said there was no legal impediment or bar to his participation in hearing the reference on the merits in the present bench. The respondents too agreed that there was no legal impediment, but it involved a question of propriety and convention. The four judges made the point in their separate judgment that the judge who decided a previous case finally could participate, and very often had participated, in the later, larger bench to which such a previous decision was referred for reconsideration. But none of the precedents relied upon correspond to the factual matrix of the present case before the Constitution Bench: two division benches of equal strength rendering two conflicting judgments, with the latter bench declaring the one delivered by the former as per incuriam without making a reference for reconsideration by a larger bench, and with a dissent by one member of the bench.

Dread the consequences

Observers dread the consequences of Justice Mishra’s refusal to recuse himself in this case as in future any three-judge bench can declare a precedent set by another three-judge bench earlier as per incuriam, without making a reference for reconsideration by a larger bench in case of disagreement. And the CJI, as master of the roster, would be free to constitute a larger bench that included the same judges sitting on the latter smaller bench and effectively undo a precedent if at all there was a reference for reconsideration. The test will be about which of the two conflicting benches (read factions) has the better clout to persuade the CJI to decide the composition of a larger bench in such a manner so as to undo a precedent. The resulting power struggles within the court can hardly enhance the institutional image and credibility of the court.

Justice Mishra, in his judgment, was concerned about the prospect of bench-hunting by litigants if the plea for recusal was complied with by the judge, whose recusal was openly sought. To many observers this concern appeared to be a red herring.