'Every Bench Of Supreme Court Is SC' : Justice Nagarathna Reprimands Union For Approaching CJI To Recall Order Passed By Another Bench

Supreme Court judge Justice BV Nagarathna on Wednesday admonished the Union Government for orally mentioning before the Chief Justice of India an application to recall an order passed by a bench comprising Justices Hima Kohli and Justice BV Nagarathna.

Justice Nagarathna said that she was ‘disturbed and concerned’ by the action of the Union approaching the Chief Justice for interference of an order passed by another bench without filing an application for the same. Justice Nagarathna expressed her concern that if such a precedent is set there will be a breakdown of the system of the court.

“We do not appreciate this. If Union of India starts doing this, private parties will also start doing this. We are an integral court. Every bench of the Supreme Court is the Supreme Court. We are one Court sitting in separate benches. Speaking for myself, I do not appreciate this on the part of Union of India” Justice Nagarathna told Additional Solicitor General Aishwarya Bhati appearing on behalf of the Union.

On Monday (October 9), a bench comprising Justice Hima Kohli and Justice BV Nagarathna had permitted a married woman to seek abortion of her unplanned pregnancy at 26 weeks. The petitioner was directed to approach the All India Institute of Medical Sciences, New Delhi, for the medical termination of pregnancy.

However, yesterday evening at 4 PM, ASG Aishwarya Bhati made an oral mention before CJI DY Chandrachud against the order. She said that the Union was seeking a recall of the order after the doctors opined that there was a viable chance of the foetus being born alive. On this submission, the Chief Justice had asked AIIMS to defer the procedure and directed the Union to file an application for recalling the order. Consequently, the special bench of Justices Hima Kohli and BV Nagarathna was reconstituted today to consider the matter again.

Today, when the special bench took up the matter, Justice Nagarathna asked ASG Bhati why she sought an intervention from the Chief Justice without filing any application or pleadings.

“When one bench of this Court decides a matter, without any pleadings whatsoever, how can you move an intra court appeal before a three-judge bench of this court as an interference with the order of this court?” she asked.

ASG Bhati apologised for the turn of events, but explained to the Court that she had to urgently mention the matter before the Chief Justice since the court’s order had directed the doctor to carry out the termination of pregnancy yesterday itself. “I had to mention this, since your lordships direction was to carry out the termination yesterday itself." she said.

Justice Hima Kohli said that the Union could have moved an application for constitution of the special bench and the matter would have been considered on priority. “You could have moved an application before the Hon’ble Chief Justice and he would have maybe constituted the special bench yesterday itself and the matter would have been resolved," Justice Kohli said.

“You could have asked for constitution of a bench, after filing a pleading. Even in the absence of a pleading, you go and move the Hon’ble Chief Justice. How is it possible? We do not want such a precedent to be set. If private parties start doing this, there will be a breakdown of the system of the court. We are concerned and disturbed about this,” Justice Nagarathna added. ASG said that she was constrained to mention the matter before the CJI as the bench of Justices Kohli and Nagarathna was not sitting at 4 PM yesterday.

The bench will hear the matter at 2 PM again to ascertain the stand of the woman, who has been asked to file an affidavit on whether she is interested in carrying the pregnancy to term and giving the child for adoption.

UPDATE AFTER THE POST-LUNCH SESSION HEARING - Supreme Court Bench Split On Abortion Of 26-Week Pregnancy Of Married Woman, Refers To Larger Bench