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Two Benches refer land acquisition cases to CJI
(23.02.18)
Move follows Justice K. Joseph’s call for ‘judicial
discipline’
A day after Justice Kurian Joseph voiced his concern over a
February 8 judgment on land acquisition, two separate Supreme Court Benches,
led by Justice Arun Mishra and Justice A.K. Goel, on Thursday referred certain
land acquisition cases so far heard by them to Chief Justice of India Dipak
Misra to take a call.
Both Benches ordered the cases referred by them to be posted
before an “appropriate” Bench on February 23 itself, as per the orders of the
Chief Justice.
Justice Kurian’s oral remarks made in open court — about
“tinkering with judicial discipline” and the need for Supreme Court judges to
function as “one” — were in connection with a 2:1 majority judgment on land
acquisition delivered by a three-judge Bench, led by Justice Mishra, on
February 8, 2018. Justice Goel was also part of Justice Mishra’s Bench and had
formed the majority opinion in the February 8 judgment.
On compensation
The February 8 ruling delivered by Justice Mishra’s Bench
concerned compensation paid to landowners, mostly farmers, when their land was
acquired.
In their majority opinion, Justices Mishra and Goel had
termed a 2014 judgment delivered by another three-judge Bench of the then Chief
Justice R.M. Lodha and Justices Madan B. Lokur and Kurian as per
incuriam. That is, they held that the 2014 judgment was rendered without
care for facts and the law.
Justice Mohan M. Shantanagoudar, the third member of Justice
Mishra’s Bench had however, differed from the majority opinion.
In a separate opinion, Justice Shantanagoudar said that
since two Benches — Justice Lodha’s and Justice Mishra’s — were of identical
strength, the question of per incuriam should be referred to a
larger Bench for final adjudication.
Disparate voices
Justice Kurian’s remarks about judicial discipline and
disparate voices within the court was triggered while he was sitting along with
Justices Madan B. Lokur and Deepak Gupta on February 21. In this hearing
concerning land acquisition compensation, senior counsel like advocate Mukul
Rohatgi highlighted the divergent viewpoints taken in the 2014 judgment and the
subsequent February 8 verdict.
Mr. Rohatgi said the February 8 decision had “unsettled a
long-standing statement of law and had very serious repercussions on land
acquisition cases”.
“This court has to remain as one. You have to have proper
judicial discipline for that… This is a matter of judicial discipline, judicial
propriety and consistency. Can a three-judge Bench overrule another three judge
Bench verdict? It has to be referred to a larger Bench in case of difference of
opinion...,” Justice Kurian had reacted.
XXX
United by a common purpose (01.03.18)
The Constitution Bench in the land acquisition case must
show us that the court still respects rules of precedent
Entrenched in our commitment to a rule of law is what
lawyers describe as stare decisis. That is, in plain English, a promise to
stand by things decided, to respect and honour precedent. Today, with the
Supreme Court seized by a maelstrom of crises, this principle stands deeply
undermined. At first, the latest clash between judges on the court might strike us as a
simple contretemps over theories of legal interpretation. But the consequences
here are enormous and are already being felt across the country. The Chief
Justice of India, Dipak Misra, has now established a bench of five judges, which
he will head, and which will commence hearing arguments on March 6, to resolve
the conflict. At stake is the court’s integrity.
Provision in Land Act
The issue itself emanates out of a divisive provision in the
Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (LARR Act), which replaced the Land Acquisition Act
of 1894. The colonial law had codified powers of eminent domain in strikingly
draconian fashion. Landowners were placed at the state’s mercy. Government was
accorded vast discretion to expropriate land for supposed public use.
Requirements of due process were scant, and the amount of money paid in return
for land was often derisory, that too in the rare cases where it could be
grasped from the exchequer’s strong hands.
Some might argue that the LARR Act, in repealing the 1894
statute, didn’t go far enough in correcting the wrongs of old, and that its
basic premise, in re-recognising a wide power of eminent domain, is inherently
flawed. But there can be little question that the number of safeguards that the
law legislates has made the process of acquisition manifestly fairer. For
instance, it compels a social and environmental impact assessment as a
precondition for any acquisition.
Besides, it also acknowledges a need for a system of
rehabilitation and resettlement for those whose livelihoods are likely to be
affected by the transfer of land. At least partly, these protections intend to
alter the traditional relationship between the state and the citizen, allowing
communal benefit to occasionally trump interests of pure capital.
Compensation the key
One of the provisions, which seeks to give meaning to this
larger aim, is Section 24 of the LARR Act. This clause, among other things,
concerns acquisitions made under the 1894 law, where compensation payable to a
landowner from whom land had been taken prior to the year 2009 has already been
determined. In such cases, the new law stipulates, the state ought to have not
only taken possession of the land but also paid the amounts determined as due,
failing which the entire proceedings will lapse. This means that even where the
state has put the land acquired to some use, its failure to pay the holder
compensation would render the entire proceeding nugatory.
Plainly read, Section 24 might seem rather innocuous. But,
in January 2014, soon after the law came into force, the state sought to
fashion a conservative interpretation of the clause, only for a three-judge
bench of the Supreme Court to quickly nip such attempts in the bud. Pune
Municipal Corporation v. Harakchand Misirimal Solanki was a case where
awards had been made by the government prior to 2009. The state argued that
each of the landowners from whom land was acquired had specifically been told
about the quantum of money that they were entitled to receive. Since they
neither disputed the amount fixed nor came forward to receive the money, the
government claimed it deposited cash payable by it into its own treasury.
According to it, this action was sufficient to negate the operation of Section
24. Or, put more simply, the landowners, the government said, were not entitled
to retake their lands by claiming that they hadn’t received their compensation.
The Supreme Court, however, thought otherwise.
Ordinarily, the court held, the state is always obligated to
pay the landowner money in terms of any award made. It was only in exceptional
circumstances, defined in Section 31 of the 1894 statute, that the government
could deposit those amounts into a court of law. These included cases where a
landowner might have refused to receive compensation, for some reason or the
other. But even there, a mere payment into the government’s own treasury
wouldn’t suffice. The law mandated deposit into court. Therefore, the
proceedings in all these cases under the 1894 law, the bench ruled, had to be
annulled, with lands being returned to their original owners.
High Courts across India almost uniformly adopted this
verdict, reversing acquisitions in a host of cases. Indeed, in September 2016,
a two-judge bench of the Supreme Court in Delhi Development Authority
v. Sukhbir Singhrecognised the trend. The decision in Pune
Municipal Corporation, it wrote, was “now stare decisis in that it has been
followed in a large number of judgments.”
A different reading
Yet, despite the law having been settled so thoroughly, with
benefits from its interpretation extending to a number of landowners,
including, in particular, poor farmers, on February 8, a divided three-judge
bench departed from the decision in Pune Municipality. In Indore
Development Authority v. Shailendra, Justices Arun Mishra and Adarsh Kumar
Goel, who comprised the majority — Justice Mohan M. Shantanagoudar partly
dissented — found that in cases where a landowner refuses compensation, a
payment into the government’s treasury was sufficient, and that there was no
attendant obligation on the state to deposit this money into court. This
reading clearly fits neither with the language of the LARR Act nor the law’s
larger objectives. But this is one part of the problem. What makes the ruling
patently unconscionable, though, is that it roundly disregards Pune
Municipal Corporation, holding that the bench there showed a lack of due
regard for the law.
Stare decisis, a principle foundational to the judiciary’s
effective functioning, is predicated on a belief that settled points of law
ought not to be disturbed. The idea is that a court’s rulings should represent
a consistent position. If judges are allowed to easily depart from precedent,
citizens might find themselves in an impossible position, where the statement
of law remains prone to the constant vagaries of human interpretation.
In India, since the Supreme Court declares the law for the
whole country, ensuring uniformity in its decisions is especially critical. But
achieving this has proved challenging, because the court doesn’t sit as one,
functioning instead as a series of differently sized panels. Therefore, to
ensure that its decisions remain predominantly consistent, the court has carved
out rules that make its judgments binding on all benches of the court of an
equal or lesser strength. This convention was even expressly acknowledged by a
Constitution Bench in Central Board of Dawoodi Bohra Community v. State
of Maharashtra (2004). There, the court held that a three-judge bench
cannot overrule a precedent set by an earlier bench of equal strength, but
must, in cases where it thinks the previous bench might have blundered, refer
the dispute to the Chief Justice, seeking the creation of a larger panel.
Maintaining such a rule not only ensures stability in the court’s rulings but
also provides the court with the necessary flexibility to correct its errors in
appropriate cases.
Ultimately, therefore, the decision in Indore
Development stems from an act of impropriety. To altogether overhaul
problems such as these altogether might require a complete reimagining of the
court’s role. Only a larger purging of its jurisdiction, by relieving it of
mundane disputes that clog its docket, will allow it to function cohesively.
For now, though, to restore even a semblance of institutional integrity, the
Constitution Bench must show us that the court still respects rules of precedent,
that it recognises its obligation to speak in unison, and that, most
significantly, it sees itself as an institution governed by a common and
majestic purpose.
(All of the above articles have been taken straight from The
Hindu. We owe it all to them. This is just an effort to consolidate opinions
expressed in The Hindu in a subject-wise manner.)
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