Can Supreme Court appeal to itself?
WHEN there is no other option, well the Supreme Court will be constrained to appeal to itself. Now if the Supreme Court does not agree with the order of the Delhi High Court, the only option available for the Supreme Court is to appeal to the Supreme Court. Just because the appellant and the Judge are same, the Supreme Court cannot be denied its right to appeal and since there is no other forum, the Supreme Court has necessarily to appeal to itself! The Doctrine of Necessity takes over the principle of, “no man shall be judge in his own case.”
In fact in the United States the Supreme Court had considered the question of taxability of their salary and held against themselves!
In Election Commission of India and Another v. Dr Subramaniam Swamy and Another, the Supreme Court of India observed,
We must have a clear conception of the doctrine. It is well settled that the law permits certain things to be done as a matter of necessity which it would otherwise not countenance on the touchstone of judicial propriety. Stated differently, the doctrine of necessity makes it imperative for the authority to decide and considerations of judicial propriety must yield. It is often invoked in cases of bias where there is no other authority or Judge to decide the issue. If the doctrine of necessity is not allowed full play in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would benefit therefrom. Take the case of a certain taxing statute which taxes certain perquisites allowed to Judges. If the validity of such a provision is challenged who but the members of the judiciary must decide it. If all the Judges are disqualified on the plea that striking down of such a legislation would benefit them, a stalemate situation may develop. In such cases the doctrine of necessity comes into play. If the choice is between allowing a biased person to act or to stifle the action altogether, the choice must fall in favour of the former as it is the only way to promote decision-making. In the present case also if the two Election Commissioners are able to reach a unanimous decision, there is no need for the Chief Election Commissioner to participate, if not the doctrine of necessity may have to be invoked.