SC dismisses Kamini Jaiswal’s petition, says it is ‘contemptuous’
In a judgment dismissing Kamini Jaiswal’s controversial petition seeking constitution of a Special Investigation Team to inquire into an FIR which indicated that some sitting judges of the Supreme Court and High Courts may have been involved in an attempt to fix a judicial proceeding, the Court strongly condemned the actions of the petitioner, calling it contemptuous.
The genesis of the present petition lies in the petitions filed by Prasad Education Trust around August 2017. The medical college run by the Trust was debarred by the government from admitting students for the academic years 2017-18 and 2018-19. The petition, among several others, was heard by a bench headed by Justice Dipak Misra and the Court directed the government to review its decision to debar the concerned medical colleges. The institute challenged the decision before the Supreme Court again. However, on 24th August, 2017, the petition was withdrawn with liberty to move the Allahabad High Court. A writ petition was filed before the Allahabad High Court on 25th August, 2017. On the same day, the High Court passed an order directing that the college shall not be delisted until the next date of hearing which was on 31st August.
The Medical Council of India filed a Special Leave Petition before the Supreme Court challenging the decision of the High Court. On August 29th, the Supreme Court disposed of the SLP after the college submitted that it would not claim any benefit from the decision of the High Court. Two days later, on 31st August, another writ petition was filed before the Supreme Court by the Prasad Education Trust. On 18th September, the Supreme Court ordered that there shall be no renewal for the academic year 2017-18. However, the MCI may make another inspection and take a decision as regards academic year 2018-19. The petition was accordingly disposed of. Both Justice Dipak Misra and Justice A. M. Khanwilkar were part of the Bench that heard and disposed of this petition.
CBI investigation and FIR lodged
While the judicial proceedings were underway, the CBI was conducting an investigation into a possible criminal conspiracy to ensure a favourable order in the matter. According to the FIR, Mr. B. P. Yadav, one of the people in charge in managing the affairs of the Prasad Education Trust contacted Mr. I. M. Quddusi, retired Judge of the High Court of Odisha, and Ms. Bhawana Pandey to help settle the matter favourably at the Supreme Court.
They engaged Mr. Biswanath Agarwala, a resident of Bhubhaneshwar to get the matter settled. Mr. Agarwala claimed huge gratification for inducing public servants by illegal means and that he could get the matter favourably settled. Mr. B. P. Yadav, Mr. Quddusi, Ms. Pandey, Mr. Palash Yadav and Mr. Sudhir Giri (both involved with the management of the Prasad Education Trust) were all likely to meet Mr. Agarwala in Delhi soon to deliver the agreed gratification. The FIR was registered against all the six persons named above.
Developments at the Supreme Court
The Campaign for Judicial Accountability and Reforms (CJAR) filed a Writ Petition before the Supreme Court seeking the setting up of a Special Investigation Team (SIT) to investigate the allegations against sitting judges. The CJAR submitted that since the FIR indicates that there was an attempt to fix proceedings at the Supreme Court, an investigation by the CBI might mean that the government may be able to use its influence to compromise the independence of the judiciary. CJAR therefore requested that an SIT be formed under a retired Chief Justice of India to inquire into the matter.
CJAR’s petition was filed on 8th November and, as told to CJAR’s counsel by the registry, was to be listed before the bench presided by Justice A. K. Sikri and Justice Ashok Bhushan on 10th November. However, it appears that the petitioners were expecting that the petition would be listed before the bench presided by Justice Chelameshwar. Therefore, another similarly worded petition with similar prayers was filed on 9th November by Ms. Kamini Jaiswal, an advocate and member of CJAR. On 9th November itself, the petition by Ms. Kamini Jaiswal was mentioned before Court No.2, presided over by Justice Chelameshwar. Mentioning for fresh listing was made before the Chief Justice. However, since the Chief Justice was presiding over a Constitution Bench, the petition was mentioned before Justice Chelameshwar, the second senior most judge of the Supreme Court. Senior counsel Dushyant Dave mentioned the petition and urged urgency in the matter. Consequently, the Court granted permission for the petition to be heard at 12.45 pm on the same day. When the petition was heard at 12.45 pm, the Court ordered that the matter be listed before a constitution bench consisting of the five senior most judges of the Court on 13th November.
On the other hand, CJAR’s petition was mentioned on 8th November before Court No.2, who directed that the case be listed before an appropriate bench on 10th November. Consequently, the petition was listed before the bench consisting of Justice Sikri and Justice Bhushan. When the case was taken up for hearing on 10th November, the order of the Bench presided by Justice Chelameshwar was brought to the notice of the Bench by Mr. Prashant Bhushan, the counsel appearing for CJAR. Therefore, the bench ordered that the matter be placed before the Chief Justice for passing appropriate orders for listing. The bench also allowed the SCBA to be impleaded as a party respondent to the petition.
Consequent to the above order of Justice Sikri and Justice Bhushan, the Chief Justice of India, Justice Dipak Misra constituted a seven judge bench consisting of himself, Justice R. K. Agrawal, Justice Arun Mishra, Justice Amitava Roy, Justice A. M. Khanwilkar, Justice A. K. Sikri and Justice Ashok Bhushan. However, according to sources, Justices Sikri and Bhushan recused themselves from the hearing. Therefore, the case was heard by the constitution bench consisting of five judges presided by the Chief Justice of India.
The Constitution Bench held that the Chief Justice of India is the master of the roster and therefore has the prerogative to constitute benches of the court and allocate cases to the Benches. It was also held that there cannot be any order or command directing the Chief Justice to constitute a particular bench. As a result, the order passed by Justice Chelameshwar that a constitution bench consisting of the senior most five judges of the court be constituted to hear the case was rendered ineffective. Consequently, Kamini Jaiswal’s petition came to be listed before the bench consisting of Justice R. K. Agrawal, Justice Arun Mishra and Justice A. M. Khanwilkar on 13th November. The Bench heard the petition and reserved its judgment. The judgment was delivered on 14th November.
The Court in its judgment held that the petition was contemptuous but did not initiate contempt proceedings. The main findings of the Court are as follows:
- The power and authority of the Chief Justice
Mr. Shanti Bhushan and Mr. Prashant Bhushan, appearing for the petitioner, Ms. Kamini Jaiswal, argued that the bench was not entitled to hear the matter as it had been constituted by the Chief Justice. It was argued that Justice Chelameshwar’s order of 9th November should prevail and that it could not have been rendered ineffective by the order of the Constitution Bench. The petitioner had submitted that both Chief Justice Misra and Justice Khanwilkar, both, having been members of the Bench which decided the Prasad Education Trust petition, which was the subject matter of CBI’s investigation and the FIR, ought not hear the present petition.
The Court held that it was entitled to hear the case as the issue had been clearly decided by the Constitution Bench in its order on 10th November. As held by the Constitution Bench, the Chief Justice of India is the master of the roster, and any order which had been passed contrary to the order of the Constitution Bench, was held to be ineffective in law and not binding on the Chief Justice of India.
- The applicability of Article 144 of the Constitution of India
The counsel submitted that Article 144 of the Constitution binds the Court and renders it impermissible for any other bench of the Court, including that presided by the Chief Justice, to overrule any order passed by another Bench of the Supreme Court.
The Court held that there was no applicability of Article 142 or Article 144 and that the decision of the Constitution Bench of 10th November was binding on all.
- Forum hunting
The Court observed that CJAR’s petition was mentioned by the same set of counsel on 8th November before Court No.2, presided by Justice Chelameshwar, as the Chief Justice was presiding a Constitution Bench at that time. However, though CJAR’s petition was thereafter listed for 10th before the bench presided by Justice Sikri, an identical petition was filed by Ms.Jaiswal on 9th November and the same was mentioned on that very day before Justice Chelameshwar. The Court held that this was a clear case of forum hunting by the counsel for the petitioners. The court held that at most, the prayer from the petitioner could have been to list the present petition with CJAR’s which was to be heard on 10th November before the bench presided by Justice Sikri.
- CJI’s power to assign cases to appropriate benches even when there is an allegation against him
The Court extensively quoted from D.C.Saxena v. Chief Justice of India, [(1996)5SCC216] and relied on the order of the Constitution Bench on 10th November to hold that the Chief Justice of India was the master of the roster and had the power to assign any case to any Bench as he may deem fit. The Court also held that to suggest that a Bench constituted by the Chief Justice would be biased is contemptuous.
- No FIR against CJI or any other sitting judge
The Court held that since no FIR could be registered against the CJI or any sitting judge of the Supreme Court or High Courts and that no judge of the Supreme Court has been named in the FIR, the averments made in the petition are highly disturbing.
- Request for recusal of Justice Khanwilkar
The Court held that the request for recusal of Justice Khanwilkar was also an attempt at forum hunting. The Court called it an attempt to bring the system into disrepute by casting unwanted aspersions seriously jeopardizing the independence of the judiciary.
The Court therefore dismissed the petition. CJAR’s petition is still pending before the Court. The next computer generated date for the listing of the petition is 27th November.
Read the judgment below: