5-judge seat topples 2-judge seat arrange, saves Bhushan of hatred saying ‘limitation is our energy’
High dramatization and bitter trades were seen in the Supreme Court Friday when it struck down a request by a two-judge seat the earlier day that a matter of affirmed legal defilement, including a boycotted Lucknow therapeutic school, ought to be heard by a Constitution Bench involving the five most senior judges of the peak court.
Ruling that the Chief Justice of India alone had the power to allocate work to judges in the Supreme Court and constitute benches, a five-judge Constitution Bench, headed by Chief Justice of India Dipak Misra, cited propriety and unanimously overturned Thursday’s decision by the bench of Justices J Chelameswar and S Abdul Nazeer. Any order which runs contrary to the finding “cannot be binding”, the Constitution Bench ruled.
The bench, which also included Justices R K Agrawal, Arun Mishra, Amitava Roy and A M Khanwilkar, cited a 1997 judgment which held that the Chief Justice of the High Court was the master of the court roster. The same principle, the judges said, would extend to the CJI on the functioning of the Supreme Court.
Taking exception to the order of the two-judge bench, the Constitution Bench, in its order, said: “Once the Chief Justice is stated to be the master of the roster, he alone has the prerogative to constitute benches. Needless to say, neither a two-judge bench nor a three-judge bench can allocate the matter to themselves or direct the composition for constitution of a bench. 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.”
Thursday’s order came on a petition by NGO Campaign for Judicial Accountability and Reforms (CJAR) which demanded an SIT probe into the alleged corruption case involving former Orissa High Court judge I M Quddusi. He was among six arrested on September 21 by the CBI which claimed they were involved in deals to try and secure favourable orders from courts, including Supreme Court, for the Lucknow-based Prasad Institute of Medical Sciences which had been placed on a government blacklist.
In its FIR, the CBI claimed that promoters of the medical college, one of 46 barred by the government from admitting students for two years, had approached Quddusi who had promised relief from courts, including Supreme Court, with bribes to influential people.
The five-judge Constitution Bench said the CJAR petition will be listed before an appropriate bench for hearing after two weeks.
The bench declined to gag the media from reporting the proceedings where there were heated exchanges, saying it stood for the freedom of speech and freedom of press. “I believe, and all of us collectively believe, in the freedom of speech and freedom of the media as long as they are within their limits,” CJI Misra said, rejecting a plea that the press be restrained from reporting whatever was transpiring in the court room.
Earlier in the day, a bench of Justices A K Sikri and Ashok Bhushan, which heard the CJAR plea shortly before lunch, directed that the same “be placed before the CJI for passing appropriate orders for listing this matter”. The bench also allowed the Supreme Court Bar Association (SCBA) to implead in the matter.
Acting on this order, the CJI constituted the five-judge bench on short notice and decided to take up the matter during the day. Initially, a notice pinned on the board outside the CJI’s court announced that a seven-judge bench would hear the matter but a revised notice said it would be listed before a five-judge bench.
Tempers ran high in the court room during the hearing when CJAR counsel Prashant Bhushan demanded that the CJI recuse himself from the matter since a bench headed by him in the past had passed the order in the Lucknow medical college matter. But the CJI refused and Bhushan stormed out midway through the proceedings, saying he was not being allowed to speak.
At the outset, Additional Solicitor General P S Narsimha read out the court’s order in the case of the Prasad Education Trust that runs the Lucknow college. Commenting on it, CJI Misra said the court had not given any relief to the college and had left it to the Medical Council of India to take a call.
The CJI, who seemed visibly upset, stopped Bhushan when he tried to intervene: “No, Mr Bhushan, you cannot comment on our orders.”
As the hearing proceeded, Justice Arun Mishra asked “if someone says CJI should not hear a matter, will it not amount to contempt of court”.
At this, Bhushan said: “I am still asking the CJI to recuse from the case. The FIR is against your lordship.” The bench told him to read out the FIR. Bhushan did so but could not cite the CJI’s name in the FIR to back his allegation.
At this, the CJI said: “What FIR against me? It is nonsense. There is not a word in the FIR naming me. Read our orders first. I feel sorry. You are liable for contempt now.”
Bhushan dared the bench to “issue contempt notice now”. But the CJI said: “You are not worthy of contempt.”
Bhushan continued. “I am requesting the CJI, don’t hear this matter. It will bring the court into disrepute.”
ASG Narsimha said “it is not for the party to decide who is to recuse, who is not”. He said “constitution of bench is within the executive powers of CJI and a judicial order cannot replace it”.
“If this goes on, institution cannot function”, the CJI remarked, adding “I cannot understand the logic of the CJI not being allowed to be the master of the roster.”
The CJI also referred to the order of Justice Sikri and observed that it had followed propriety. “But I have seen yesterday’s (Thursday’s) order, may be in another case. How does this institution function,” he said.
Bhushan then told the court that during Thursday’s proceedings, a note was placed before Justices Chelameswar and Nazeer, purportedly from the office of the CJI, which was recorded in their order.
At this, the CJI said it was his note and was placed before the bench of Justice Chelameswar by an officer of the Registry.
SCBA president R S Suri and secretary Gaurav Bhatia joined issue with Bhushan, saying his action amounted to contempt per se. “He is casting aspersions on the entire institution, not just any individual,” Bhatia said.
The bench, however, refused to initiate contempt proceedings against Bhushan with Justice Arun Mishra observing “restraint is our power”.
Rejecting Bhushan’s arguments that the contents of the FIR pointed to a judge of the Supreme Court, Justice Mishra said that was impossible since it was established law that any such FIR will require the sanction of the CJI.
“Are we going to going to put our judiciary at the disposal of an SI (Sub Inspector)… It is inconceivable and not permissible,” he said. The bench said that Bhushan’s allegations were not reflected in the FIR and were only rumours.
Bhushan called the proceedings as “totally extraordinary” and “very, very unusual”.
Acting on a plea filed by advocate Kamini Jaiswal who had raised the same prayer as the CJAR petition for an SIT probe, Justices Chelameswar and Nazeer had on Thursday directed that the matter be heard by a Constitution Bench made up of the five most senior judges.
On Friday, the Constitution Bench questioned Bhushan why a second petition was filed in the matter on Thursday when the CJAR plea, which was first heard by Justice Chelameswar’s bench on Wednesday, had already been listed for Friday.
Bhushan tried to reply but was constantly interrupted by other members of SCBA. For nearly 40 minutes, lawyers opposing his contentions spoke. Bhushan then asked the court if it would not hear him. As the interruptions continued, he stormed out of the court room, saying the court was free to pass any order it wished if it was not willing to hear him. As jostling began, security personnel escorted him out.
Later, in a tweet, Bhushan alleged that the “CJI presided over a hand-picked bench to override yesterday’s order referring this case to top 5 judges. This despite having a direct conflict of interest.”