The SLP order of the Supreme Court in the case of Shafhi Mohammad Vs State of Himachal Pradesh dated 30th January 2018 in which a two member bench of the Court passed an order which was clearly meant to over rule an earlier three member Judgement of the Basheer Case as regards the applicability of Section 65B of Indian Evidence Act is now having its adverse impact on the system of judiciary in India.
The SLP order was delivered by the two judges namely Justice Adarsh Kumar Goel (Seniority order 11) and Uday Umesh Lalit (Seniority order 15).
This order was conspicuously rebellious over ruling the earlier judgement passed by three judges namely Justices RM. Lodha (Then CJI now retired) Kurian Joseph(Seniority order 5) and Normally when a Judge has a different opinion from an earlier judgement Rohinton Fali Nariman (Seniority order 12).
Normally, when a Judge has a difference of opinion with the earlier order of a superior court, the option available to him is to make a reference back to a comparatively bigger bench and seek a review. This is an established convention. It was diligently followed in the Aadhaar case when the question of “Whether Privacy is a Fundamental Right in our constitution or not” came up with a smaller bench which felt that an earlier 5 member bench had a view which could be reviewed. Accordingly the matter was considered by a 9 member bench which gave its clarification after which the earlier bench resumed its hearing.
This process was not followed by the A.K. Goel-U.U.Lalit bench which preferred to pass its clarification order in derogation of the order of the earlier three member bench. Though there was the next hearing on 13th February 2018, the bench simply continued with other matters and left its earlier order on Section 65B remain on paper though its validity is questionable.
We consider that the order was erroneous, is amenable to be misused and would open doors of corruption in Judiciary.
It is also infructuous being an order of a smaller bench.
But by not reviewing the order in the next available opportunity the two member bench has shown disregard to the conventions and cyber jurisprudence.
It is necessary for the CJI to take note of this development and if he allows such breaking of conventions go unquestioned, it will be spreading like cancer in the Supreme Court and through out the judicial system.
Some time back we had the Justice Karnan episode where he challenged the Supreme Court and was later convicted for Contempt of Court.
But the current CJI did not take similar contempt action against the four judges who held a press conference. Now if CJI continues to remain quiet without acting against the breaking of convention by the AK Goel-UU Lalit bench, every judge will ignore every other judgement of a bigger bench and turn Jurisprudence upside down.
If a lower bench of Supreme Court can over rule a higher bench, a lower court can also over rule a higher Court. We will see chaos and anarchy spreading through the system if proper measures are not initiated by CJI now.
Such a situation will give a free hand for corruption to decide which order of a superior court will be followed as a precedence and which will be ignored under the special precedent set by the AK Goel-UU Lalit bench.
The Order of this bench to turn Jurisprudence upside down is completely illogical and indicates that this could be part of a rebellion developing inside the Supreme Court.
CJI needs to take note and take corrective action. Silence will not be a solution and it may be too late to correct the situation if more such decisions contemptuous of the higher benches can be allowed to be taken.
In the meantime, if any situation arises in Courts where there is an attempt to accept electronic evidence with Section 65B certification on the basis of the SLP order, it has to be challenged first with a request for review, if necessary supported with an expert counter opinion, failing which with an appeal to a higher court specifically on this issue.
It is regrettable that Supreme Court judges are creating anarchy in the system by not being consistent with their commitment to delivery of justice and the poison seeded by the four rebellious judges seems to be having its effect in destroying the revered system. I hope the fear is misplaced and things will turn out well with the bench in its next hearing on 7th march 2018, issuing a clarification that they are not over ruling the earlier judgement.
If the Amicus Curie is unable to find a solution to a practically permissible and legally acceptable solution to the problem on hand (Evidence to be presented by the Police from the crime scene videography), it is necessary for the Court to hold a larger consultation with other experts before passing further orders.