An Unusual Hearing in the Supreme Court: Four questions to ponder

The Supreme Court of India appears to be the centre stage of controversy, with a Constitution Bench annulling an order passed by a Division Bench on Friday last week.

Amidst unprecedented scenes in the Court of the Chief Justice of India, the Constitution Bench headed by CJI Dipak Misra set aside an order passed by the second senior-most judge, Justice Jasti Chelameswar.

The hearing itself attracted a lot of attention, with advocate Prashant Bhushan storming out of the Court during the hearing, after expressing his displeasure at the refusal of the Bench to hear him.

One of the connected matters, the petition filed by Kamini Jaiswal, is now listed for hearing today before a 3-judge Bench.

However, some mysteries still remain. We take a look.

1. 7-judge Bench to 5-judge Bench

That the CJI constituted a Constitution Bench on the very same day the Division Bench headed by Justice AK Sikri passed an order to that effect, was in itself intriguing.

However, what compounded the mystery was the sudden change in the strength of the Constitution Bench from 7 judges to 5 judges.

A notice informing the constitution of a 7-judge Bench was issued at 2.42 pm. This Bench comprised CJI Dipak Misra and Justices AK Sikri, RK Agarwal, Arun Mishra, Amitava Roy, AM Khanwilkar and Ashok Bhushan.

However, barely ten minutes later, a new notice appeared. This time, it was clear that a 5-judge Constitution Bench will hear the case. Justices AK Sikri and Ashok Bhushan had been omitted from this new Bench, which then proceeded to hear the case at 3 PM.

It still remains unclear why the two judges (Justices Sikri and Bhushan) who were initially part of the Bench were later dropped. One possible explanation is that it was these two judges who passed the order, sitting in Division Bench, to place the case before the Chief Justice for constitution of an appropriate Bench.

However, with no official explanation, we are left to speculate on the actual reasons behind such a step.

2. Constitution Bench heard CJAR’s petition but quashed order passed by Chelameswar J in Kamini Jaiswal’s petition

Though the Constitution Bench was hearing the petition filed by Campaign for Judicial Accountability and Reforms (CJAR), the hearing revolved around the events of the previous day in the petition filed by Kamini Jaiswal. The questions from the Bench were also on whether the second senior-most judge could pass a judicial order to override the administrative powers of the CJI.

This led advocate Prashant Bhushan to remark,

“Your Lordships are not hearing that case. That is not the case before Your Lordship right now”.

Despite that, the Bench went ahead and passed an order stating that any order passed contravening the Chief Justice’s powers to allocate cases will be ineffective and not binding. Thus, the Bench effectively annulled the order passed by Justice Chelameswar’s Bench in Kamini Jaiswal’s petition.

Kamini Jaiswal’s case is now listed before a 3-judge Bench for hearing tomorrow.

3. Presence of Lawyers Associations

Another intriguing feature of the hearing was the presence of a large number of lawyers representing various lawyers’ associations. This, despite the fact that the matter was listed at the last minute at 3 pm on Friday, when the Court is usually empty.

Interestingly, not only were many lawyers present, but they were also allowed by the Court to speak against the petitioners and their counsel. While the SCBA had impleaded itself in the matter, many lawyers who were present to watch the case were also allowed to speak before the Constitution Bench.

Hearings before Constitution Benches in Supreme Court are not a regular affair. Such hearings usually address important Constitutional questions and only lawyers who are party to the matter are allowed to make arguments. Even intervenors are, more often than not, not allowed to speak at length but are only given the freedom to submit written submissions.

That being the case, the Court granting ample opportunity to unconcerned advocates to speak while not hearing the petitioner’s counsel was what irked Prashant Bhushan, prompting him to storm out of the court.

4. Collegium – Where to now?

This would perhaps be the biggest fallout of last week’s events. A possible Supreme Court Collegium logjam.

The events of last two days at the Supreme Court reaffirm the obvious – that all is not well between the two senior-most judges.

Both CJI Dipak Misra and Justice Jasti Chemaleswar are part of the Collegium which appoints Supreme Court and High Court judges.

Chelameswar J already has a history of boycotting Collegium meetings during the tenure of former Chief Justice of India TS Thakur.

With the disagreement with Misra J now becoming obvious, Collegium meetings and, consequently, judicial appointments, could well hit a roadblock for the next few months.