Five days ago, Court 3 of the Supreme Court had granted interim relief on oral mentioning

The Supreme Court was privy to a strange chain of events yesterday. A team of lawyers led by Senior Advocate Kapil Sibal was made to go from Court 3 to the Court of the Chief Justice of India back and forth to get the SLP filed by P Chidambaram listed for urgent hearing.

The matter was first mentioned yesterday at 10.30 AM before Justice NV Ramana by Kapil Sibal. Justice Ramana had told Sibal that the file would be placed before Chief Justice of India Ranjan Gogoi and had asked him to mention the matter before the CJI.

Sibal and his team of lawyers then made their way into CJI’s Court. However, when the five-Judge Constitution Bench (headed by CJI Gogoi) assembled to hear the Ayodhya dispute case, no mentioning was made, and the Bench directly proceeded to hear the Ayodhya case.

Subsequently, the matter was once again mentioned before Justice Ramana at 2 pm. Sibal told the Court that they were constrained to mention the case before him at 2 PM given that the petition was not listed. Justice Ramana told Sibal that the petition was lying in defects.

Sibal replied that the defects in the petition had been cured and that it ought to have been listed.

Justice Ramana then called the Supreme Court Registrar to ask why the petition has not been listed. The Registrar informed the Court that defects in the petition had just been cleared and that the process for listing was being followed.

At this point, Justice Ramana categorically stated that he cannot pass any orders without the case being listed.

However, Sibal persisted and submitted that the Court has, in the past, granted protection to litigants upon oral mentioning. Justice Ramana, however, declined.

The lawyers once again queued up before the CJI at 4 pm, but the Bench rose and left before mentioning could be done.

It eventually became clear that the petition will be listed only on Friday.

What is interesting, however, is that Court no. 3 presided by Justice Ramana had only a few days ago taken a matter on board upon oral mentioning. The mentioning was made by Solicitor General Tushar Mehta appearing for Serious Fraud Investigation Office (SFIO) in the case related to bail of Nitin Johri.

The Court proceeded to direct that the matter be listed on August 20 before an appropriate Bench and also granted interim relief to SFIO by staying the judgment of Delhi High Court. The order reads:

“Upon being urgent mentioning of the matter by the learned Solicitor General appearing for the petitioner – Serious Fraud Investigation Office, this matter was taken on board today. List the matter on Tuesday, the 20th August, 2019 before an appropriate Bench.

Till such time, the impugned order of the High Court is stayed.”

In fact, Sibal had brought this order to the notice of Justice Ramana during the oral mentioning of Chidambaram’s plea. However, Ramana J had reportedly replied,

“That was a different case. He was going abroad.”

Thus, he declined to list the matter relating to Chidambaram’s bail upon oral hearing. Later in the evening, CBI officials arrested Chidambaram from his residence.

What is interesting is that the Supreme Court found it fit that a case relating to the personal liberty of an individual did not require urgent listing. However, another case by the government to curtail the same individual liberty was considered fit to be taken on board for granting interim relief.

Both cases might have their own merits. Recently the Central government had received a lot of flak for allowing Vijay Mallya to escape; hence urgency on its part to restrict a similar recurrence might be justified.

However, could the Supreme Court have treated the Chidambaram’s case differently when it came to listing the same?

Such instances are not isolated ones. It has often been the allegation that mentioning by Senior Advocates for high profile clients increases the chance of audience at the Supreme Court.

Justice Ramana’s statement that he will not hear a matter which is not listed while having heard another matter five days ago without listing, once again brings to fore such contradictions which have been persisting on the administrative side of the Supreme Court.

Can the Court follow different yardsticks for different parties while listing cases?

[Read the August 16 order]