The Chief Justice of India on Friday presided over an unprecedented sitting to overrule a two-judge Bench’s order to constitute a larger Bench to hear a petition that alleged bribe was paid to fix a case pending in the apex court. The matter relates to admissions in a lucknow-based medical college and a retired High Court judge has already been arrested by the CBI in this connection.
Sitting in a combination of five judges picked by him, CJI Dipak Misra nullified the order of the Bench of Justices J Chelameswar and S Abdul Nazeer and said that the order could not be “binding” as the decision to refer a case to a five-judge Bench was solely the prerogative of CJI, who is the master of the roster in apex court. However, the CJI’s ruling came only after unprecedented drama that exposed the rift in the top judiciary in the process.
Terming the two-judge Bench decision as “illegal and void”, the court recalled the same and ordered the petition filed by Campaign for Judicial Accountability and Reforms (CJAR) filed by advocate Prashant Bhushan to be heard by an appropriate Bench after three weeks. The Thursday order passed on a petition by advocate Kamini Jaiswal had directed CBI, the probe agency, to submit all records of investigation in a sealed cover before a Bench of five senior most judges on Monday.
The judges sitting along with CJI Dipak Misra - Justices RK Agarwal, Arun Mishra, Amitava Roy, AM Khanwilkar, were unanimous that the action of the 2-judge Bench in listing the case before a Constitution Bench amounted to judicial impropriety. Bhushan was present in court as the hearing of the case witnessed chaotic scenes, with lawyers present in large numbers, shouting down Bhushan and demanding contempt proceeding against him for making insinuations against CJI. The case being investigated by CBI was against a medical college, whose petition was decided by a Bench headed by CJI on September 18, 2017.
Earlier in the day, CJAR petition was heard by a Bench of Justices AK Sikri and Ashok Bhushan which said it was “pained” that despite the petition being listed before it, a fresh petition by Jaiswal was mentioned and heard on the same set of facts. Advocate Bhushan sought tagging of the matter with the petition listed for Monday. But the Bench placed it before CJI for listing before appropriate Bench and allowed Supreme Court Bar Association (SCBA) to join the proceeding. On this order, CJI constituted a five-judge Bench post-lunch at 3 pm. Initially, a seven-judge Bench was notified to hear the case but within minutes, it was replaced by a fresh one announcing a five judge Bench, with the names of Justices AK Sikri and Ashok Bhushan being dropped.
Bhushan, accompanied with advocate Kamini Jaiswal created a flutter with his opening remark when he said, “the name of CJI is in the CBI FIR”. The Bench pulled up Bhushan for making such irresponsible remarks. It said, “There cannot be FIR against a sitting district judge or magistrate, much less a judge of High Court or Supreme Court. To say this is per se contempt. Are we to put our judiciary at the hand of a sub-inspectorIJ”
Bhushan ‘s response got drowned in the sea of protest by lawyers gathered in the courtroom. SCBA led the charge against Bhushan as its President RS Suri and Secretary Gaurav Bhatia sought contempt action against Bhushan, Jaiswal and senior advocate Dushyant Dave who appeared for Jaiswal on Thursday.
The Bench said, “We are on judicial impropriety and not contempt.” Dealing with the impropriety of the two-judge Bench to refer a case to five judges when CJI directed the same to be listed before another Bench on Friday, the CJI said, “How can a two-judge Bench decide first five judges should hear the case. Is it not a reflection on other judges of the courtIJ” He further asked Bhushan, “What was the urgency for you to file a second petition and say that a particular judge should hear a particular matter. Who should hear and who should recuse, is a lawyer is allowed to make that choice is it not denigrating the systemIJ”
The Bench heard senior lawyers present in the court on this issue. Additional Solicitor General (ASG) PS Narasimha also spoke stating that CJI has the constitutional duty and authority to allocate business for effective administrative functioning in apex court. CJI replied, “If such type of allocation of business is done (by Benches of SC other than CJI), the institution cannot function…If High Court Chief Justice is the master of roster, can it be said CJI is not the master of roster at the apex court. This Bench has been set up to lay down this guideline.” The judges further observed such a situation cannot be permitted as it will result in chaos and anarchy as against judicial discipline that must prevail.
Bhushan was not allowed to speak as lawyers gathered in the court shouted him down even as judges unequivocally condemned him for making “wild, improper and impermissible” allegations against CJI. The Bench even allowed senior lawyers present in courtroom, not associated with the case, to slam the 2-judge Bench order that remarked on Thursday that allegations are “disturbing” while ordering CBI to enclose all evidence collected by it in a sealed cover for perusal by the five-judge Bench on Monday.
When chaos prevailed inside the court, Bhushan told the Bench in an agitated tone to pass whatever order it wished and forced his way out through the sea of lawyers. Security persons escorted him out of the court. Coming out, Bhushan tweeted it was unusual and extraordinary that a five-judge Bench hand-picked by CJI has been constituted to hear a case where the allegation is against an order passed by CJI.
One of the lawyers suggested to the court to hold the proceedings in-camera by shutting out the media. But the suggestion did not find favour with CJI who said, “I believe in freedom of speech, expression and the Press.”