The Parliament buildings in many countries are much older than we assume. The Palace of Westminster of London, the seat of Parliament of the United Kingdom is an eleven-century old building, and the Westminster Hall, the oldest surviving part of it is at least nine-hundred-year-old building wherein President Barack Obama delivered his most historic speech before the UK Parliament on 25th May 2011. He was the first US President to be hosted in that Building.
The Old Westminster Palace was destroyed by fire and due to which it was demolished in 1834 and rebuilt during 1840-1876. The new building hosts the modern-day Parliament of the United Kingdom and thus, it is still 150 years old.
The United States Capitol situated on the Capitol Hill is the seat of both Houses of Congress which was built in 1800. The building became unusable due to Burning of Washington in 1814 (British invasion) but it was fully restored in 1819. The domes were constructed during 1855 to 1866 and Statue of Freedom was erected thereupon in 1863. That means, the original building is at least 200-year-old.
The Houses of Parliament at Cape Town, South Africa, which houses the National Assembly, and the National Council of Provinces was constructed in 1884 and subsequent additions were made in 1920 and 1984 before the freedom was granted in 1994. However, the National Council of Provinces of South Africa still assembles in the old building.
The Palais Bourbon, the seat of French National Assembly is 238 years old building which has been hosting Parliament since French Revolution.
The Russia’s Kremlin, the seat of governance and not of Parliament was built during 1482 to 1495 and thus the 525 years’ old building is still standing as the Russia’s national honour.
Something which President Obama said in his recent book that “world endures long after we’re gone” is aptly true in case of Parliament buildings of many Western, European, African and other countries, except India. India’s Grade-I Heritage Parliament House won’t be in use after it attains 75 years of its transfer of power that took place in 1947.
However, I am not on the history or long endurance of Parliament or the buildings of governance in this article but on the legality and propriety of the Supreme Court’s exercise of jurisdiction and power to hear the matter and dispose it of
by permitting the construction of a new House of Parliament and Executive spaces called “Central Vista Project” (herein after I would refer it as “Indian Pentagon”) by Union Executive of India.
The challenge to the government’s decision started with the petitions filed by Rajiv Suri and Anuj Srivastava before the Delhi High Court seeking judicial review of executive action of the present-day government to build the Indian Pentagon mainly on the ground that Delhi Development Authority (DDA) lacks requisite powers to effect change in use of land in the wake of section 11(A)(1) and (6) of the Delhi Development Act, 1957 and the public hearing was a mere farce. After hearing both the parties on 11 February 2020, the single judge of the Delhi High Court granted rule nisi with an interim order injuncting DDA from notifying the proposed change in Master Plan of Delhi (MPD) 2020-21 without approaching the court or in other words or popular understanding, without the permission of the court.
Being aggrieved by the injunction, the Union of India (UoI) and DDA filed Letters Patent Appeals (LPA) before the Division Bench of the Delhi High Court wherein it successfully obtained the ex-parte ad-interim order on 28 February 2020 against the operation, implementation and execution of the injunction order passed by the Single Judge.
The original petitioner thereafter challenged the ad-interim order passed by the Division Bench in Supreme Court by filling Special Leave Petition (SLP) from the interim order passed by the Division Bench in LPA. After hearing the parties on 6 March 2020, the Supreme Court instead of deciding the SLP on its own merit disposed of the LPA and withdrawn the writ petitions pending before the Single Judge to itself on the pretext that the entire matter pertaining to the challenge shall be heard and decided by the Supreme Court in larger public interest.
Transfer Jurisdiction of Supreme Court:
Therefore, let’s understand the power of the Supreme Court to transfer and withdraw the petitions. Article 139A (2) of the Constitution, Section 406 of the Code of Criminal Procedure, 1973 and Section 25 of the Code of Civil Procedure, 1908 provide for transfer powers of the Supreme Court wherein the Supreme Court can invariably transfer cases from one High Court to another High Court or subordinate court of one High Court to a subordinate court of another High Court for the “ends of justice”. The power therein is not available for suo-moto exercise for Supreme Court.
The power of Supreme Court to withdraw the case/s pending before one or more High Court to itself and to dispose them of is contemplated in Article 139A (1) of the Constitution. This power may be exercised when the Supreme Court is satisfied on its own motion or on an application made to it that cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and it is satisfied that such questions are substantial questions of general importance, it may withdraw the case or cases pending before the High Court or the High Courts and dispose them all by itself. The proviso to Article 139A (1) specifies that the Supreme Court may after determining the said questions of law, return the cases to the respective High Courts together with the copy of its Judgment thereupon for final disposal in accordance with such determination. The power of Supreme Court under Article 139A (1) is not akin to the power of High court under Article 228 of the Constitution. Under Article 228, the High Court has a power to withdraw the case pending in its subordinate court, if it is satisfied that the case involves a substantial question of law as to the interpretation of the Constitution.
Therefore, what is important to note here is that the cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts for the exercise of power under Article 139A (1) of the Constitution by the Supreme Court for withdrawal of cases to itself. Without this, the Supreme Court has no power to withdraw the cases to itself. Also, the constitution did not envisage the exercise of power for withdrawal of cases in “larger public interest”, if the stipulated conditions are not met with.
In the Indian Pentagon matter, the cases involving the same or substantially the same questions of law were not pending before the Supreme Court and one or more High Courts. The cases were pending before Delhi High Court and the same had reached the Supreme Court in appeal/SLP for determination of legality of interim or ad-interim orders passed by the High Court. Therefore, the exercise of power by the Supreme Court for withdrawal of cases to itself is a legal wrong and therefore, per-incuriam to the Constitution.
Constitution Bench of Seven Judges of the Supreme Court in AR Antulay held that “per-incuriam” are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.
Per-incuriam Judgments or orders passed by the Supreme Court do not enjoy the protection of Articles 141, 142 or 144 of the Constitution. Those are not binding upon anyone including the High Courts or the subordinate courts. Disregard or dis-obeyance to them doesn’t entail contempt of court under Article 129 of the Constitution. In the common law jurisdiction, the inferior courts have power to reject the binding precedent of the judgment of superior court if they are found to have been rendered per incuriam and the Constitution of India being a Westminster model of Constitution, its Article 141 is not an exception to common law customs.
In the instant case, the order of withdrawal is not only per-incuriam but also violates the independence of High Courts. The Constitution Bench of Seven Judges of the Supreme Court in L. Chandra Kumar held that the Jurisdiction of the High Courts under Articles 226/227 of the Constitution is an integral and essential feature of the Constitution which constitutes a part of basic structure of the Constitution. Therefore, the withdrawal of cases without the due process and against the mandate of Article 139A (1) of the Constitution amounts to a serious interference with or taking away of Jurisdiction of the High Court, which is not permissible for legislature, executive or for the judiciary.
One or the other day, the wisdom may prevail upon the people of India to seek the rectification of the error committed by the Supreme Court or the Supreme Court may suo moto act by ex debito justitiae in the larger public interest or for the ends of justice.
Nitin Meshram is a lawyer who appears in Supreme Court and several High Courts. Views expressed in this article are personal.
 (1988) 2 SCC 602 para 42
 (1997) 3 SCC 261 para 78