Hearing an appeal on a Punjab High Court judgment on regularisation of services of staff at a private golf house, a two-judge bench of the Supreme Court made certain critical observations described by the press as an “unprecedented confession” and as showing “remarkable candour” in admitting that the highest judiciary was overreaching its powers.I am constrained to write this article as the tone and tenor of the judgment is likely to shake the confidence of the common man in the Supreme Court, which is the strongest pillar of our constitutional democracy. With utmost respect to the two honourable judges, I am sincerely of the view that the criticism they have made is unfortunate and unprecedented and has crossed the Lakshman rekha of judicial discipline.The judges have referred to various orders passed by the Delhi High Court and criticised them as interference in the executive domain. The Supreme Court, as the highest court of the land, has not only the power but also the duty to make such criticism and, through it, lay down guidelines for all courts in the country. Therefore, the Supreme Court is fully justified in criticising orders of high court and trial court judges.But the two-judge bench has blamed the Supreme Court itself, stating that it had passed orders that resulted in an upsetting of the constitutional balance of democracy, defined by the limits of the jurisdiction of the legislature, the executive, and the judiciary. The bench was referring to the Supreme Court order in the Jagadamika Pal case of 1998 and the Jharkhand Assembly case of 2005.With utmost respect to the learned judges, I submit with all humility that in blaming the two earlier orders of the Supreme Court, the learned judges have crossed the limits of judicial discipline and the tone and tenor of the judgment is such that is likely to undermine the faith and confidence of the people in, and the dignity and the authority of, the court. It is well settled by a large number of larger-bench decisions of the Supreme Court that judicial decorum and legal propriety demand that if a two-judge bench of the Supreme Court does not agree with the views of an earlier order of two or more judges of the court on any issue, the matter should be referred to a larger bench. This rule of discipline is of utmost importance. Its violation is fraught with undesirable consequences. The two cases cited by the division bench were of an extraordinary nature and called for an immediate and extraordinary remedy. Both cases could not have been left to be corrected in an election, under the scheme of the Constitution of India. It is a fundamental principle of the rule of law and jurisprudence that no one has the authority to exercise power conferred in mala fide manner. The moment such an exercise comes to the notice of the Supreme Court, it is duty-bound to interfere.That appears to be the position in the two cases referred to by the bench. The Supreme Court had in those cases passed orders that it considered just and expedient. Assuming that the view taken in those cases were erroneous and beyond the powers of the court, such a view could be reconsidered only by a larger bench. Further, it is a golden rule for judges that they should consider only such issues that arise for consideration. In the present case, there was none. The reference to the views of former Chief Justice J.S. Verma, regarding the earlier orders of the Supreme Court in a lecture delivered by him after his retirement, is no valid basis for the two judges to blame the earlier judgment. The only way was to refer the matter to a larger bench when the occasion arose. It is true that introspection and self-correction is laudable, but it has to be done only through the method permissible. Doing otherwise would do more harm than good to the status and position assigned to the Supreme Court by the Constitution.(The writer is a former Chief Justice of Punjab & Haryana High Court and a former governor of Jharkhand and Bihar)
