This is the first time since December-2014, ‘The Last Word’ has accepted to publish someone else’s full-fledged article. When writing is this honest, it should receive all support it can. What follows is from Akshit Soni, a 5th Yr. Student at Geeta Institute of Law, Panipat.
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Following the trend of addressing institutional quirks through witty listicles, namely, ‘How to Be a Bad Law Intern’ and ‘How to Be a Bad Senior’, we now turn to Supreme Court of India Judges. They do have inconsistencies, from reserved Judgments gathering dust to Judges overlooking existing statutes. Continuing this duology of satirical scrutiny, the present write-up examines a few telling instances of hiccups from the Supreme Court.
I. Delay in Delivery of Judgment
A Seven-Judge Bench in Aligarh Muslim University v. Naresh Agarwal, 2024 SCC OnLine SC 3213 (‘Aligarh Muslim University’) reserved Judgment on 01/02/2024 and delivered same on 08/11/2024. Could us lesser mortals say, the 281 days required in delivery of Judgment in Aligarh Muslim University was ‘unusual’? Well, P. Nallammal v. State, 2025 SCC OnLine SC 1040 took 246 days, between 03/09/2024 and 07/05/2025, in delivery of Judgment and Justice S. Dhulia did admit, “I would, first of all, make it clear that the delivery of this Order has taken more time than usual.” It is possible, considering then Chief Justice of India (‘CJI’), Justice Dr. D.Y. Chandrachud (‘Justice Chandrachud’) was to retire on 10/11/2024, Aligarh Muslim Univeristy was held on till 08/11/2024, a Friday, to be marked as Justice Chandrachud’s significant last words.
II. When a Two-Judge Bench Refers to a Seven-Judge Bench
Aligarh Muslim University is also infamous for another issue. Solicitor General of India (‘Solicitor General’) chose not to press the objection as regards why a Two-Judge Bench in Anjuman-e-Rahmania v. District Inspector of Schools, W.P.(C) No. 54-57 of 1981 had requested the CJI to place S. Azeez Basha v. Union of India, (1968) 1 SCR 833 before a Seven-Judge Bench. Justice D. Datta (‘Justice Datta’) in Aligarh Muslim University nonetheless described, what if, some other day, a Two-Judge Bench questions the Doctrine of Basic Structure and requests the CJI to constitute a Fifteen-Judge Bench? Justice D. Datta explained, in case a Two-Judge Bench doubts a ratio laid down by a Five-Judge Bench, a reference made with sufficient reasons ought to be first placed before a Three-Judge Bench. It can only be prayed, strength of such words do not dim.
III. To be on a Division Bench were the Companion Judge disagrees with the Presiding Judge and the Companion Judge’s opinion is unanimously called right by a Three-Judge Bench
While a surprise for a delay in delivery of Judgment or an objection specially chosen not to be pressed by a Solicitor General may seem technical, instances of a Companion Judge disagreeing with a Presiding Judge, on a Division Bench, are not technical and are on what the law should be.
Justice J. Chelameswar (‘Justice Chelameswar’), as the Presiding Judge, and Justice A.M. Sapre (‘Justice Sapre’), as the Companion Judge, were in disagreement in Nidhi Kaim v. State of Madhya Pradesh, 2016 SCC OnLine SC 547. Madhya Pradesh Professional Examination Board cancelled the results of certain students, awarded in their professional MBBS course, on the ground that, they had gained admission by resorting to unfair means. Justice Chelameswar felt, complete justice would be rendered if the qualifications successfully acquired by the students were not annulled and the knowledge gained by them was not wasted. Justice Chelameswar directed, amongst other things, it would serve a larger public interests to make the Appellants serve the nation for a period of five years, as and when they become qualified doctors, without any regular salary and attendant benefits of service, subject to payment of some allowance for their survival. It was pointed out, ‘community service’ as an alternative to imprisonment for those found guilty of crime is ‘gaining currency in some countries’ and it appears to be ‘more’ useful. In contrast, Justice Sapre expressed his disinclination for invoking jurisdiction under Article 142 to sustain the benefit of education acquired by the students.
A Larger Bench of CJI, Justice J.S. Khehar (‘Justice Khehar’) and Justices K Joseph and A Mishra held, jurisdiction exercisable by Court under Article 142 could not ever be invoked to salvage and legitimize acts of fraudulent character. In their considered view, Appellants had consciously sought assistance of a syndicate engaged in manipulating admissions, were beneficiaries of acts of deceit and deception, and did not deserve any sympathetic consideration. Thus, the Larger Bench concurred with the Judgment rendered by Companion Judge-Justice Sapre. Nidhi Kaim v. State of Madhya Pradesh, (2017) 4 SCC 1 was cited recently by Justice Datta in Vishnu Vardhan v. State of Uttar Pradesh, 2025 SCC OnLine SC 1501.
If only “community service gaining currency in some countries” did not appear ‘more’ useful to Justice Chelameswar, litigants could have been saved costs and time lurking behind a Larger Bench hearing. Justice Chelameswar was elevated to SC on 10/10/2011 and Justice A.M. Sapre on 13/08/2014. As a 5th Yr. Student, apart from trying to become a better human being, little can I do to forget similar occasions when despite all research available a 1st Yr. Student won an argument against me!
IV. To have agreed on the requirement of a Three-Judge Bench when a Judge, but to never have composed the Three-Judge Bench when a CJI
It is not always about winning arguments! A Presiding and Companion Judge may consider a question to be so vital that other Judges are thought fit to be called in. What if the other Judges are never called in? A Three-Judge Bench of Justice Chandrachud, as he was then, along with Justices I. Malhotra and I. Banerjee, on 15/10/2020, in Manu Solanki v. Vinayaka Mission University, 2020 SCC OnLine SC 1408 (‘Manu Solanki’) did identify divergent views on “educational institutions being subject to The Consumer Protection Act, 1986.” It was, in fact, noted in Guru Nanak Dev Para Medical Institute v. Salim Mohammad, Special Leave to Appeal (Civil) No. 5854 of 2017, on 19/01/2024, that, “whether an educational institution/university would be covered under the provisions of The Consumer Protection Act, 1986 is pending before a 3-Judges’ Bench in Civil Appeal Diary No. 12901 of 2020.” Civil Appeal Diary No. 12901 of 2020 is Manu Solanki. CJIs can exclusively decide on allocation of cases and composition of Benches. Justice Chandrachud in his tenure as a CJI, between 9/11/2022 and 10/11/2024, never resolved the divergent views identified in Manu Solanki. Justice Chandrachud never witnessed the final Manu Solanki-Three-Judge Bench for reasons perhaps philosophical, on what actually remains important to a supreme but not infallible SC Judge.
V. To be a CJI in Dissent
For the reason of being supreme but not infallible, few CJIs have been in dissent in SC’s history. In Shayara Bano v. Union of India, (2017) 9 SCC 1, in Minority, CJI, Justice Khehar wrote, for himself and Justice S.A. Nazeer, that, what Union seeks from SC truly falls in its own hands. Justices Khehar and Nazeer were satisfied in injuncting Muslim husbands for 6 months from pronouncing ‘talaq-e-biddat’. However it was held, if within 6 months no legislative process would commence to do away with ‘talaq-e-biddat’, the injunction would cease to operate. Do appreciate, the Majority felt no such need for an injunction and did not doubt SC’s power. By a Majority of 3:2, the practice of ‘talaq-e-biddat’ (Triple Talaq) was set aside. In December 2017, the Government introduced The Muslim Women (Protection of Rights on Marriage) Bill, 2017. 31st July 2019, The Muslim Women (Protection of Rights on Marriage) Act, 2019 was in place. The CJI’s dissent, I repeat, the CJI’s dissent ended up as a footnote to both judicial and legislative consensus.
VI. When a Judge himself accepts to have written a ‘per incuriam’ Judgment
Lord Halsbury in Quinn v. Leathem, 1901 AC 495 (HL) said, “a case is only an authority for what it actually decides.” Sundeep Bafna v. State of Maharashtra, (2014) 16 SCC 623 held, “the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta.” A decision is ‘per incuriam’ only when an overlooked statutory provision or legal precedent is central and might have led to a different outcome if considered. Has a SC Judge ever held his own self to have laid a ‘per incuriam’ decision?
Justice Sapre, on 07/01/2019, in Birla Institute of Technology v. State of Jharkhand, 2019 INSC 326 could not concur with High Court’s view which was not in conformity with Ahmadabad Pvt. Primary Teachers Association v. Administrative Officer, (2004) 1 SCC 755 (‘Ahmadabad Pvt. Primary Teachers’). It was held, teachers were not ‘employees’ under Section 2(e) of The Payment of Gratuity Act, 1972. Two days later, Justice Sapre realized, law had been amended retrospectively. He called his decision of 07/01/2019 an “error in judgment”. By 07/03/2019, Justice Sapre declared his reliance on Ahmadabad Pvt. Primary Teachers Association to be “wholly misplaced”.
Conclusion
We, that is, they who read what I wrote, do not even remotely intend to belittle the stature of a Supreme Court Judge. An example of where a Judge sworn in later proves to be correct in contrast to a Judge sworn in earlier or the fact that, that very Judge sworn in later, in a different case, had to set aside his own Judgment may only show there are “best of times and worst of times” for all of us. If a CJI chooses to be in dissent, so be it. But, there could be clearer rules behind how a CJI composes Benches, allocates cases and picks issues for an immediate resolution. May others point out other useful hiccups from Supreme Court. It shall be watched!
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