Intra Court of Appeal in Supreme Court?
THE Supreme Court is the highest court of the land but within the Supreme Court, is there an intra-court of appeal? From one Bench to another?
On May 12 2016, a Bench consisting of Justice Chelameswar and Justice AM Sapre had a difference of opinion in Civil Appeal No. 1727 of 2016 (and several other connected appeals.) and they passed an order,
In view of the divergence of opinion in terms of separate judgments pronounced by us in these appeals today, the Registry is directed to place the papers before Hon'ble the Chief Justice of India for appropriate further orders.
Thus the case landed up in the court of a Larger Bench of Justice Jagdish Singh Khehar, Justice Kurian Joseph and Justice Arun Mishra. The Larger Bench on 28.07.2016 observed,
After hearing had gone on for sometime, wherein the limited issue canvassed was, whether this Court was justified in exercising jurisdiction under Article 142 of the Constitution of India, our attention was invited to the mandate contained in Article 145(5) of the Constitution, so as to suggest, that the entire controversy needed to be heard afresh...
We are of the view that the instant issue can be resolved by referring the matter back to the Bench, for a clarification, of the order dated 12th May, 2016, whether the reference required re-hearing of the entire matter, and if not, the limited issue referred for consideration.
We have chosen to adopt the above course, so as to save precious time of the Court. In the above view of the matter, the Registry is directed to place the files of this case, before Hon'ble the Chief Justice of India, for seeking clarification of the Division Bench which passed the order dated 12th May, 2016.
The case is back with the original Division Bench. The Division Bench on 30.08.2016, observed,
It appears from the above-mentioned order that, it was argued before the larger Bench that by the Order of this Bench dated 12th May, 2016, a Reference was made to a larger Bench. The submission is factually incorrect.
It is clear from the Order dated 12th May, 2016 that there was a disagreement between both of us regarding the final order to be passed in the appeals before us. …….
The only point of divergence between both of us is that whether the appellants should be disentitled to retain the benefits of the training in medical course which they secured by virtue of their being beneficiaries of a tainted examination process conducted for the purpose of admitting them for training in medical colleges.
We completely fail to understand the reference made to Article 145(5) of the Constitution in the Order dated 28th July, 2016. We are of the opinion that neither the Constitution of India nor any other law of this country provides an intra-court appeal insofar as the Supreme Court is concerned. A re-hearing of the entire matter as apparently suggested to the larger Bench, in our opinion, would amount to an intra-court appeal. If the larger Bench of this Court wishes to create such an intra-court appeal, we obviously are powerless to stop it. We can only record our understanding of the law on the question and it is as recorded above.
Ordered accordingly.
Now, what will happen? Will the Chief Justice again refer the matter to the same Larger Bench to decide only on the point of difference?
Article 145(5) of the Constitution, to which a reference was made in the orders of the Larger Bench and Division Bench reads as:
No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.