Judge versus Judge – when judges in SC differ at notice stage, notice is to be issued


Bar and Bench has reported that, yesterday, on 8 January 2016, the two Hon’ble judges in Court No. 9 in the Supreme Court got into an argument over the admission of a matter before them. It was reported that while hearing Item 30 in Court No. 9 in the Supreme Court, Justice M.Y. Eqbal and Justice Arun Mishra had an open argument in the presence of lawyers and visitors. This happened in the case of SLP (C) Nos. 35863-35864/2015 [APOLLO GROUP, INC. AND ORS. v. K.K. MODI INVESTMENT AND FINANCIAL SERVICES PVT. LTD. AND ORS.]. While Justice Eqbal wanted to issue notice in the matter, Justice Mishra wanted to dismiss it. It has also been reported that after this impasse continued for some time, eventually the bench directed that the matter be posted before another Bench. I find from the order dated 08/01/2016, available online, in the aforesaid case that the following brief direction was issued in this case: “List these matters before another Bench”.

In this regard, I may like to point out that there is a tradition in the Supreme Court that where the two Hon’ble judges in a 2-judges bench differ at the stage of issuing of the notice in a matter, notice is issued in the matter instead of referring the matter to another bench.

In this regard, I may refer to the order dated 23/09/2010 of the Supreme Court in SLP (Civil) No(s). 27466-27467 of 2010 [RAMESH CHANDRA TRIPATHI v. SUNNI CEN.BOARD OF WAKFS & ORS.], which is related to Ayodhya temple issue, in which the Supreme Court held as under (see this order online here):

“One of the members of this Bench is of the view that SLP should be dismissed having regard to the fact that the matter is already reserved for judgment to be pronounced tomorrow. Another member of the Bench is of the view that notice should be issued and an interim order be issued.

The tradition of this court has been that even if one of the members of the Bench feels that notice to be issued, notice will be issued, though the other member is not in favour of it.

In view of it, issue notice. Dasti in addition.”

In view of this tradition, I may submit that this procedure should have been followed when there was a difference of opinion yesterday between the two Hon’ble judges on the issue as to whether or not notice should be issued in the aforesaid case, and that there was no need to refer this matter to another bench of the Supreme Court. As mentioned above, since one of the two judges (Justice Eqbal) wanted to issue notice in the matter, while the other judge (Justice Mishra) wanted to dismiss it, following the long-standing tradition in the Supreme Court, the bench should have issued notice in the matter. In any case, issuance of the notice in the matter basically implies that the respondent(s) would be called upon to appear and reply to the SLP and the matter will ultimately be decided only on the basis of merits after detailed examination thereof.

[Disclaimer: The aforesaid incident in the Supreme Court has been mentioned here on the basis of the said report published in Bar and Bench, and I cannot independently verify the authenticity of the incident. The purpose of writing this short article is only to highlight the long-standing tradition followed in the Supreme Court in respect of the procedure to be followed when two Hon’ble judges in a 2-judges bench in Supreme Court differ at the stage of issuance of notice.]

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers.

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