How a clash between the two topmost judges of Supreme Court undermined Indian judiciary
The high drama over Prashant Bhushan and Kamini Jaiswal’s petition was as much about judicial protocol as it was about the spirit of the apex constitutional institution.
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If you want to understand the big drama that happened in Supreme Court on Friday, November 10, you will have to understand the everyday dynamics and politics of the judicial power corridors. The problem is that though lawyers and journalists who spend everyday in Supreme Court are well aware of these equations, we should not talk about them on public forums.
Unlike politicians or government, the institution of the judiciary is protected from insinuation and perception by the law of contempt.
Bench hunting or forum shopping is when lawyers try to get a matter listed before a certain bench anticipating favourable orders. The undercurrent or allegation is that things in the Supreme Court can be “fixed” and order can be “arranged”.
Keeping these concerns in mind, by convention, the administrative responsibilities are solely the domain of the Chief Justice of India. CJI decides the bench, composition and if needed the strength of the bench. Neither the bench can refer the matter to itself, nor can any bench decide the composition of a constitution bench.
But what happens when allegations are made against the Chief Justice of India, as Prashant Bhushan has in fact alleged? The procedure is not very clear. Since judges have immunity from prosecution, what is the process to probe a judge sitting in a powerful position?
What happens in case of “conflict of interest”, as Bhushan has alleged in this matter. More importantly, when one is making allegations against the CJI, Dipak Misra in this case, who decides whether there is a conflict of interest? Do we have a mechanism to ascertain? How and to what extent can contempt of court be used in a balanced way?
With these points in the backdrop, here is how the story begins and the drama unfolds at the Supreme Court.
Justice Chelameswar and the events of November 9
On November 9, an unusual and defiant order was passed by Justice Chelameswar which directed a constitution bench to be set up to hear the case on medical admissions scam. Bench led by Justice Chelameswar was hearing a petition filed by Kamini Jaiswal, which sought an SIT probe as the FIR anonymously names sitting judge of the high court and the Supreme Court.
The matter pertains to arrest of retired Orissa High Court judge, Justice Quddusi. On September 19, 2017, the CBI registered an FIR that criminal conspiracy was hatched by several people, including one retired Judge of the Orissa High Court, Justice IM Quddusi, and officers of the Prasad Education Trust.
The conspiracy was allegedly done to bribe and influence judges of the high court and Supreme Court and secure favourable orders in the cases of this education trust pertaining to a recognition of a medical college run by them, whose recognition had been denied by the MCI citing many deficiencies.
The FIR states that a middleman named Biswanath Agarwala from Orissa, was engaged with the purpose of influencing the Judges. It is alleged that these persons secured bail and no effort was made by the CBI to challenge their bail and nothing is known about the progress of the investigation.
Justice Chelameswar's ordered a constitution bench of top five judges to look into the case. He also recorded that the “petitioners seek recusal of CJI (Misra)”, which would have meant Justice Chelameswar himself leading the bench.
What Justice Chelameswar order flouted
The order flouted two norms of the Supreme Court.
First, that no bench can decide the matters which it will hear; it is assigned by the CJI. Secondly, even when a judge refers the matter to a constitution bench, the composition has to be decided by the CJI, who is the master of the roster.
The order was given despite registry handing over a note from the CJI during the hearing, which apprised Justice Chelameswar about the existing norms. It was unusual for such a note to be handed over by the CJI who rose up from the hearing of the constitution bench abruptly.
Did Prashant Bhushan ‘bench hunt’?
It is also important to mention that a similar plea was filed and mentioned by Prashant Bhushan on November 8, which according to Bhushan was supposed to come up for hearing before Justice Chelameswar, but eventually was shifted to the court of Justice Sikri.
The allegation on Bhushan is that he went bench hunting and wanted it to be listed before a specific judge. When he could not get this plea listed as he wanted, he mentioned another plea on November 9 and got an urgent hearing the same day before Justice Chelameswar.
On November 10, the earlier plea filed came before Justice Sikri, who said he was “pained” by the way matter was mentioned and listed despite similar matter pending before another bench. Bhushan defended by saying he was surprised at the last minute change and since the medical admission scam made direct allegations on the CJI, he should not have exercised his discretion on the judicial or on the administrative side in this matter.
After a quick exchange Justice Sikri passed a brief order, which wasn’t audible even to Bhushan who was arguing the matter. Justice Sikri informed Bhushan that the court has directed the matter to be listed before an appropriate bench and tagged with the petition slated to come before the constitution bench.
However, the written order just placed the matter before the CJI without any tagging.
Chief Justice and events of November 10
Just when everyone thought that the matter would now be heard by the constitution bench on November 13, a sudden notice was put out that the constitution bench of seven judges shall assemble in CJI court to hear the plea referred by Justice Sikri.
But only five judges sat on the constitution bench as Justice Sikri reportedly recused himself from the matter, and the coram was settled to five judges.
Then began one of the ugliest ever scenes that one has witnessed in the top court of the country. Prashant Bhushan told the CJI Dipak Misra point-blank that CJI should not hear the matter as the FIR named him. CJI retorted by saying that his name did not feature in the FIR and Bhushan was “liable for contempt”.
Justice Arun Mishra on the bench questioned Bhushan as to how could an FIR be filed against any judge since there is no provision in law. Justice Misra went on to say that the “credibility of judiciary cannot be put in the hands of a sub-inspector”.
‘FIR names CJI’, but ‘no provision in Constitution’
Justice Arun Mishra went on to tell Bhushan: "Can there be an FIR against any judge, it is per se contempt. We are not here to protect any individual. Are we responsible for which lawyer says what in the Supreme Court corridors? FIR against a judge is not contemplated in our constitution. No one is entitled to presume anything. You must take back your statement alleging the CJI. Your comment was not proper."
CJI Misra added that if such allegations were allowed, the institution of the judiciary couldn’t function. CJI said: "We are here to lay down a principle as to who can direct and refer the matter to a bench. You (referring to Bhushan) made wild allegations against me. You said you lost temper. We can’t lose temper, that’s the difference."
SCBA and lawyers versus Bhushan
Supreme Court Bar Association (SCBA) – represented by the senior lawyer Rupinder Singh Suri and Gaurav Bhatia – was of the view that contempt proceedings should be issued against Bhushan and others, who went forum shopping and indulged in impropriety.
During the hearing view of ASG Narasimha was also sought on the matter. Many senior and lesser-known lawyers also gave their views during the hearing. One lawyer told the CJI that he heard Prashant Bhushan and Dushyant Dave making the mentioning. Bhushan made repeated attempts to put his point across but wasn't successful.
Loud voices, short tempers, jeering and a free-for-all theatre of back-and-forth argument – was the scene at the hearing. The tipping point came when Bhushan lost his cool and yelled at the CJI, "You don’t need me in the court, you can pass whatever orders you like," as he walked out of the Court number 1, the CJI court.
CJI, master of the roster
CJI passed orders. He reinstated that the Chief Justice of India was the “master of the roster” and that judges couldn’t assign the matter to themselves. He also said that any order passed in contravention of this rule was annulled, hence junking the order of Justice Chelameswar that referred the matter to the constitution bench. The matter would now come up for hearing before a three-judge bench in two weeks.
CJI reinstated the authority of his office through the order. But what shall go down in the judicial history is how the conduct of some led to disgrace for an institution that sits at the top of our constitutional structure.
Post the National Judicial Appointments Commission (NJAC) judgment, accountability of judiciary is the buzzword and till there is a proper independent mechanism to deal with such complaints, such ugly scenes would continue to erupt time and again, symptomatic of a systemic issue.