The hearing in the suo motu case initiated by the Supreme Court after sexual harassment allegations against Chief Justice of India Ranjan Gogoi came to light assumed a totally new dimension. The Court took serious note of the contents of the affidavit filed by advocate Utsav Bains and ordered a judicial inquiry into the allegations raised by him. Former Supreme Court judge, Justice AK Patnaik will conduct the probe.

However, what has been characteristic of the hearing in the matter is the consistent violation by the Supreme Court of the procedure/rules prescribed by itself.

The procedure for filing and hearing cases in the Supreme Court is governed by the Supreme Court Rules, 2013.

Saturday Sitting

When does the Supreme Court sit? This can be found in Clause 5 of Order II of the Rules. It states,

“The Court shall not ordinarily sit on Saturdays nor on any other days notified as court holidays in the Official Gazette.”

Thus, “ordinarily”, the Supreme Court does not sit on Saturdays. However, this means there is leeway provided for the Court to sit on Saturdays extraordinarily.

And the Rules are silent on who decides to have such sitting. Thus, it would be the master of roster, the Chief Justice of India, who would be entitled to convene such a sitting.

What was extraordinary that warranted this sitting? This can only be gathered from the cause title of the case.

“In Re: Matter of great public importance touching upon the independence of Judiciary.”

The Bench and the order

While I will not delve into the merits of what transpired during the hearing, it was a major departure from another convention that is noteworthy.

The Bench constituted to hear the matter that day comprised CJI Ranjan Gogoi himself and Justices Arun Mishra and Sanjiv Khanna. However, when the order passed by the Bench that day was uploaded on the website of the Supreme Court, the name of CJI Ranjan Gogoi was curiously missing.

During the course of the hearing, the Bench had said that it will not pass any order since CJI Gogoi is on the Bench (as this would be a conflict of interest since the case relates to CJI Gogoi personally). In such cases, what usually happens is that the concerned judge recuses and the order passed will record the same while sending the matter to the CJI for listing before an appropriate Bench.

In such an event, the order should, as has been the established convention, reflect the names of all the judges on the Bench including the one who has recused. However, that convention was not followed on April 20. The order uploaded on the website that day reflected the name of only Justices Arun Mishra and Sanjiv Khanna, though CJI Ranjan Gogoi was very much a part of the Bench.

Change of Bench and acceptance of Utsav Bains’ affidavit by Registry

Now we move to April 22  and 23.

The case came to be listed in the causelist for April 23. Interestingly, the Bench had undergone a change. The new Bench comprised Justices Arun Mishra, Rohinton Nariman and Deepak Gupta. How and why this happened is again unclear (once again a departure from the convention).

However, what was more interesting was the manner in which the affidavit filed by Utsav Bains came to be listed. Bains is not a party to the case. For that matter, it is not clear till now who exactly the parties to the case are.

Bains had put up a Facebook post on the evening of April 20 after the Supreme Court initiated the suo motu proceedings. In the post, he spoke about how he was approached by certain persons to frame the Chief Justice of India. He also said that he would be filing a detailed affidavit in the Supreme Court in this regard.

Subsequently, he filed an affidavit in Supreme Court. This, in fact, came to light when the causelist for April 23, 2019, was published (though Bains had apparently put up the copies of the same on his Facebook profile).

The causelist stated that the affidavit filed by Utsav Bains will be heard. This is what reeks of another procedural irregularity on the part of the Supreme Court.

Bains is not a party to the case. The normal course of procedure requires that he file an intervention application. The same has to be heard and allowed. Only then can Bains file an affidavit or get an audience from the Court. Bains had neither moved an intervention application nor mentioned the matter.

It is not clear how the affidavit filed by Bains came to be listed by the Registry. It is also not clear why and how the Court can give him an audience. If a matter is of grave public importance, can anybody file an affidavit and be heard in a matter?

As per Order IX of Supreme Court Rules, the Court may at any time, for sufficient reason, order that any particular fact or facts may be proved by an affidavit. No such order has been passed in the instant case setting out “sufficient reasons”.

How then did the affidavit filed by a third party come to be accepted by the Registry and listed without a judicial order? Or is it that a Facebook post is all that is required for a prospective intervenor to circumvent the procedure established by law?

The only answer to this could be Order LV of the Supreme Court Rules.

Order LV

Clause I of Order LV states the following:

“The Court may for sufficient cause shown, excuse the parties from compliance with any of the requirements of these Rules….”

To avail the same, an application to be excused from such compliance should be addressed to the Registrar. The Registrar will then take instructions from the judge in chambers before deciding on such an application. The Registrar can also, if he considers it desirable to list the matter in open court, direct the applicant to serve the other party with a notice of motion returnable before the court.

If indeed the same has been decided in chambers by the judge, then Utsav Bains should have made such an application. But the website of Supreme Court which provides details of documents and interlocutory applications filed does not give any such indication. In fact, no documents have been mentioned on the website.

Importantly, clause 6 of Order LV is also relevant for the current issue.

This clause confers wide inherent powers on the Supreme Court. It states that nothing in the Supreme Court Rules shall limit the inherent powers of the Supreme Court to make orders necessary to meet the ends of justice.

Thus, the Supreme Court can go beyond the Rules. However, the same is again by way of judicial orders and there are no such judicial orders in this case. How the affidavit filed by Utsav Bains came to be listed by the Registry sans any of these still remains unanswered.