In the last two days, the Supreme Court of India witnessed activity like never before as two petitions, one filed by Campaign for Judicial Accountability and Reforms (CJAR) and the other by Advocate Kamini Jaiswal set off a chain of unprecedented events culminating in an extraordinary hearing at 3 pm today.
The events of today, though largely reported as something which transpired between judges and a few Senior lawyers, might have more than meets the eye.
A Constitution Bench today annulled an order passed yesterday by a Division Bench presided by Justice Jasti Chelameswar.
But what is it that triggered the events that led to the unusual hearing today?
Below is a time line of the controversy and the events.
The incident, which triggered the events in Supreme Court, happened in September of this year when the CBI filed a charge sheet and subsequently arrested former High Court judge, Justice IM Quddusi.
According to the FIR filed by CBI, Quddusi was said to be involved in a racket involving the opening of medical colleges in Uttar Pradesh.
The custodians of Prasad Education Trust, which owned of one of the 46 medical colleges barred by the central government, had allegedly approached Quddusi and three others with a view to settling a matter involving permission to set up medical colleges pending in the Supreme Court.
The members of the Trust filed a petition in the Supreme Court, requesting Justice Quddusi and one Bhawana Pandey to get the matter “settled” through his contacts. These two in turn engaged one Biswanath Agrawala to do their bidding. Agrawala was alleged to have very close contact with “senior relevant public functionaries”, and demanded “huge gratification” for bribing public officials for the same.
What was interesting was that the relevant cases concerning medical colleges was being heard by a Bench headed by Chief Justice of India, Dipak Misra.
Petition 1 – CJAR
The Campaign for Judicial Accountability and Reforms (CJAR) filed a petition in Supreme Court contending that since the FIR by CBI casts aspersions on the judiciary, the matter should be investigated by a Special Investigation Team headed by a retired Chief Justice of the Supreme Court. CJAR, in its petition, has argued that an agency like CBI which is fully controlled by the government should not be allowed to investigate the matter since it could compromise the independence of judiciary.
“it becomes essential that this case is investigated under the supervision of a Special Investigation Team headed by a retired Chief Justice of this Hon’ble Court and that the investigation is not left to an agency fully controlled by the government i.e. the CBI which has lodged the FIR and currently undertaking the investigation. This is important in order to protect the independence and integrity of the judiciary and also to restore the public confidence in the judiciary. If the CBI, which is controlled by the government, is allowed to undertake the investigation in the present matter, the government can use this to compromise the independence of the judiciary. The present petition is therefore being filed seeking the constitution of a Special Investigation Team, headed by a former Chief Justice of India, to investigate the above-mentioned matter.”
November 8 – Petition 1 mentioned
The petition was mentioned before Justice Jasti Chelameswar on November 8 seeking listing of the matter. The matter was mentioned before Chelameswar since a Constitution Bench was progressing before CJI Dipak Misra. Further, since the Bench headed by CJI Misra had heard the medical college matter, it was considered appropriate by the petitioners that the CJI should not deal with the case.
Chelameswar J. then passed an order directing that the matter be listed before an appropriate bench on Friday.
However, advocate Prashant Bhushan, who is representing CJAR, apparently received a phone call from the Registry the same afternoon stating that the matter has already been listed by the Chief Justice of India for Friday.
November 9 – Petition 2 by Kamini Jaiswal
Things got really interesting on November 9 as Senior Advocate Dushyant Dave mentioned a petition filed by advocate Kamini Jaiswal. The petition pertained to the same issue.
“This writ petition raises some very important issues concerning the integrity of the institution…There is an FIR against certain persons for trying to take bribes in the name of certain Supreme Court judges…things are extremely disturbing”, said Dave.
He sought for a listing of the matter for the same day while making it clear that the CJI might not be in a position to hear the matter. Justice Chelameswar agreed to hear the case at 12.45 pm.
The Constitution Bench headed by Justice Dipak Misra, which was hearing Lt. Gov v. NCT of Delhi, curiously rose at 12 pm.
The Bench headed by Justice Chelameswar and comprising Justice S Abdul Nazeer heard the case. It ordered that the case should be heard by a Constitution Bench of first five judges and also directed that the case be listed on Monday.
Further, it also ordered the CBI that all materials and documents collected by the CBI during the investigation be produced before the Constitution Bench in a sealed cover.
Interestingly, during the course of the hearing before Chelameswar and Nazeer JJ., a note was received by the Bench from the Registry. The note was also made part of the record. Its contents would finally be out in public on November 10.
Around 1 pm
The First petition filed by CJAR came up for hearing before Justice AK Sikri and Ashok Bhushan.
This hearing also proved quite eventful as the Bench expressed disappointment at the fact that a second petion was filed when the petition by CJAR was already assigned to the Bench of Justice Sikri.
“Matter is very serious, no doubt about it. We as judges of Supreme Court are bound to uphold Constitution and Rule of Law.
But what was the urgency in filing a second petition. That is a reflection on this Bench. It pains us”, said Justice AK Sikri.
Advocate Prashant Bhushan, who was appearing for CJAR, responded by stating the following:
“I am more pained than Your Lordships. I will tell you what pains us.
The FIR is very clear that there are allegations against the Bench of CJI. When we mentioned the matter before Chelameswar J. in the morning of November 8, he had ordered that the matter be listed before him on Friday.
However, I got a call from the Registry in the afternoon that day saying the CJI has already ordered that the matter be listed before another Bench.
There are clear directions by this Court itself that a judge cannot exercise judicial or administrative functions in cases in which there are allegations against him”, said Bhushan.
The Bench eventually directed that the matter be placed before Hon’ble Chief Justice for passing appropriate orders for listing this matter. The Bench also allowed impleadment application by the Supreme Court Bar Association.
In a strange turn of events, a seven judge Bench was constituted to hear the petition by CJAR.
Barely 10 minutes later, another notice appeared constituting a 5-judge Constitution bench to hear the case.
Just few mins before the hearing 7 judge bench gets changed to 5 judge bench. pic.twitter.com/IRBAwuVpAI
— Bar & Bench (@barandbench) November 10, 2017
A high voltage hearing ensued in which Supreme Court Bar Association and a slew of lawyers assembled in court to oppose Prashant Bhushan.
The Bench constantly rebuked Bhushan citing yesterday’s petition filed by Kamini Jaiswal. The Bench remarked that the Chief Justice is the master of roster and no other judge can place a matter before a Constitution Bench. Bhushan reminded the court that it was hearing CJAR’s petition and not Kamini Jaiswal’s petition.
“That matter is not before Your Lordship today”.
Bhushan also told the court that this was an extraordinary and unusual hearing and there was no requirement to list the matter in a jiffy.
SCBA members and lawyers assembled there objected to the fact that a similar petition was mentioned and heard yesterday by Justice Jasti Chelameswar, which they alleged was by-passing of the Chief Justice’s administrative powers.
Secretary Gaurav Bhatia argued that some senior lawyers were indulging in browbeating of judges and if contempt action can be initiated against junior lawyers or AoRs, it should apply equally to Senior counsel.
“A young lawyer was debarred for a month for making allegations against the Registry. Some senior counsel have been brow beating judges. It has become a routine”, said Bhatia.
SCBA President RS Suri stated that getting favourable orders through terror should not be allowed. He also referred to Rule 2 of Order VI of the Supreme Court Rules which lays down that it shall be the Chief Justice who will constitute a larger bench if a Bench considers that any matter should be dealt with by a larger Bench.
Lawyers seated in the Court were also allowed to voice their concerns against the petitioner and its lawyers; many of them called for action to be taken against the petitioner’s counsel.
After the lawyers finished speaking, Prashant Bhushan tried to make his arguments.
Even as he was trying to make his submissions, the Bench kept quizzing him. Bhushan said that even those who were not parties to the matter were heard by the Bench, but he was not being allowed to speak.
The Bench was, however, unrelenting. This prompted Bhushan to raise his voice and say,
“Your Lordships can pass an order without hearing me. You have heard persons who are not parties to the case for an hour. If Your Lordships want to pass an order without hearing me, then do it.”
He then stormed out of the Court, with the marshalls escorting him.
The Court then proceeded to pass an order reaffirming that the Chief Justice of India is master of the roster and any order passed by any judge allocating a matter to any bench will not hold field. It placed strong reliance on the judgment of State of Rajasthan v. Prakash Chand.
“There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers and that is why in Prakash Chand (supra), it has been clearly stated that the administrative control of the High Court vests in the Chief Justice alone. The same principle must apply proprio vigore as regards the power of the Chief Justice of India. On the judicial side, he is only the first amongst the equals. But, as far as the roster is concerned, as has been stated by the three-Judge Bench in Prakash Chand (supra), the Chief Justice is the master of the roster and he alone has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted.
To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible….
In view of the aforesaid, any order passed which is contrary to this order be treated as ineffective in law and not binding on the Chief Justice of India.”
The Bench then ordered that the petition by CJAR be placed before the CJI for listing before appropriate bench.
As the hearing drew to a close, petitioner Kamini Jaiswal also voiced her objection to the manner in which the matter was heard without allowing Prashant Bhushan to speak while giving wide latitude to lawyers who were not party to the matter. She also raised the fact that cases were being transferred to CJI’s court without any notice.
“In the last one month, at least six cases have been transferred to Your Lordship’s Bench”, said Jaiswal.
“Yes, that’s my prerogative”, replied Justice Misra.
“Intra-court appeal is not there in this court [Supreme Court]”, Jaiswal replied.
Misra J. also explained why two specific cases were transferred to his Court.
“The case on MoP has to be dealt with on the administrative side while the case relating to hearing of criminal appeals belongs to Parliamentary domain”, Misra J. said.
Read the order belowCJAR order
Read CJAR PetitionCJAR Petition
Read Kamini Jaiswal PetitionDave Petition - Medical College
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