For the last two days, the country’s top court is wrestling with whether Justice Arun Mishra should be on a bench to decide a matter on which he has given a judgment earlier.

There have been demands for his recusal as Justice Mishra would be judging his own earlier judgment. But Justice Mishra has defended his right to rule in the matter and called such demands an attempt at “bench hunting”.

So, what is the matter?

The case that Justice Mishra is hearing as part of a five-judge Constitution bench pertains to the land acquisition law.

What about the law?

In 2013, the UPA government brought the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, which replaced the colonial-era Land Acquisition Act, 1894.

A new provision - Section 24(2) - was introduced by the previous government in the 2013 Act. The Section declared that “in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894”, if an award was made five years or earlier, but the possession of land had not been taken or the compensation not been paid, “the said proceedings shall be deemed to have lapsed”. What constitutes payment of compensation is the point of contention.

How did it affect land acquisition?

There were many cases where possession of land was pending either because the compensation was not given or landowners had refused to sell their land.

The All-India Kisan Sabha’s lawyer, Jaimon Andrews, mentioned instances where land possession had not happened since the 1980s.

After the new act came into force on January 1, 2014, several cases were filed across the country. A case which involved the Pune Municipal Corporation reached the Supreme Court.

On January 24, 2014, the three-judge bench of Justices R.M. Lodha, Madan B. Lokur and Kurian Joseph held that a mere deposit of compensation in the government treasury cannot be regarded as payment made to landowners and such an acquisition will lapse.

On February 8, 2018, another case – the Indore Development Authority v. Shailendra (Dead) – came before another three-judge bench. This bench had Justices Arun Mishra, Adarsh Goel and Mohan Shantanagoudar. In a majority judgment the bench said there was no lapse of acquisition because of the non-deposit of amount under the provisions of the Act of 1894 or the Act of 2013. The judgment said the verdict in the Pune Municipal Corporation case of 2014 was “per incuriam”. In Latin that means “through lack of care”.

This decision by the Justice Mishra bench created controversy because this was also a three-judge bench as the earlier one but had given a decision contrary to the 2014 judgment.

A few days later, a case related to Section 24(2) reached the court of Justice Lokur. Justices Joseph and Deepak Gupta were part of the three-judge bench. Interestingly, the bench that gave the 2014 judgment included the two judges. When the bench was told that the 2014 judgment was no longer valid and declared per incuriam, Justice Lokur put a stay on all cases related to Section 24(2) in the Supreme Court and the high courts until the conflict in the matter was resolved.

In another hearing on February 22, 2018, Justice Mishra referred the matter to the then Chief Justice Dipak Misra so he set up a larger bench to decide.

The larger bench

On October 12, 2019, a Supreme Court notification said the larger five-judge bench will be headed by Justice Mishra. On October 14, the All-India Farmer Association wrote to the Chief Justice of India, Ranjan Gogoi, requesting removal of Justice Mishra from the bench because his judgment was doubted by Justice Lokur.

Andrews said the Kisan Sabha favours the Lodha judgment, which is in favour of farmers. “The impropriety is that the correctness of your judgment is in doubt by another bench. How can you head that bench then?” Andrews said. “It is not about your opinion on some matter but the correctness of your judgment has been doubted by another bench. Now, you cannot come and say, ‘no, I’m right, he was wrong’.”