November Tumult in Supreme Court and its Aftermath

The November tumult in the Supreme Court may appear to have ended rather tamely with the Court deciding to spare the writ petitioners in the medical college bribery case of contempt action, despite finding their action contemptuous.  On a closer analysis, however, there are a few aspects, which raise questions about the Court’s actions, for which there are no official answers.

First, let us take the developments on November 9, when Justice J. Chelameswar, in Court No. 2, passed the order referring Kamini Jaiswal’s writ petition seeking an independent and impartial probe into the scam, to a Constitution bench of the first five Judges of the Supreme Court.  Many have argued that Justice Chelameswar ought not to have done so, when he knew that the first petition, filed by the Campaign for Judicial Accountability and Reforms, has already been listed to be heard at Court No.6 on November 10. 

However, they miss the fact that Jaiswal’s and CJAR’s petitions, though almost identical, were different in one aspect.  Jaiswal’s petition specifically raised the issue as to the competence of the CJI to deal with the matter either on the judicial side or even on the administrative side, because a bench headed by him had heard the case, which involved the bribery allegation.

“Therefore, the present petition can neither be heard by a bench presided by the Hon’ble Chief Justice of India nor can it be assigned to any other bench by his Lordship in his administrative capacity”, Jaiswal said in her petition.

CJAR’s petition, which was mentioned before Justice Chelameswar on November 8, and listed to be heard by Court No. 6, by Justices A. K. Sikri and Ashok Bhushan on November 10,  did not make a similar plea with regard to the CJI’s disqualification from dealing with the case.

While hearing Jaiswal’s petition, therefore, Justice Chelameswar understood the distinction between her and CJAR’s petitions, despite being similar in their prayers.

The second criticism of the observers against Justice Chelameswar is that he ought to have known that the question of recusal is generally decided by the Judge himself, and therefore, his reference of Jaiswal’s petition to the Constitution bench of first five Judges in terms of seniority without placing it before the CJI, seeking his consent, is tantamount to No. 2 court deciding the question of recusal of the CJI.

Here, Justice Chelameswar appears to have made a distinction between the administrative and judicial recusal of the CJI.  As far as the judicial recusal from hearing the case is concerned, Justice Chelameswar has correctly assumed that the CJI is the right person to decide it himself.  In fact, when Dushant Dave, who represented Jaiswal, requested that the CJI should not deal with the case either judicially and administratively, Justice Chelameswar evaded a directly reply on November 9, and pointed to his direction that the first five Judges would hear it.  The first five Judges would include the CJI, and the petitioner would be free to address the bench on the question of recusal of the CJI, before it began hearing the merits of the petition.

On the contrary, the CJI’s recusal on the administrative side left no doubt to Justice Chelameswar, that as No. 2, he had a duty to step in, when the CJI’s competence to decide an issue on the administrative side was doubted.  It is because the petitioner would have no remedy to seek its redressal, or question it, before a decision is taken by the CJI on the administrative side. Although CJAR’s petition did not raise the CJI’s recusal either on the judicial or administrative side, the result was apparent, with the matter being placed before Court No. 6 rather than Court No. 2

The controversial circular

A circular issued by the Court on November 10 said that oral mentioning, in respect of matters which have not already been assigned/listed before any other bench, will be allowed only before the Court presided over by the CJI at 10.30 A.M. The circular is silent on the alternative arrangement, if the CJI is unavailable. It is pointed out that Justice Dipak Misra, when he was in Court No. 2, had himself permitted oral mentioning by lawyers.

A very pertinent question which arises, for which there is no answer, is that if the CJI is indeed the master of the roster, it can result in the Court not hearing the public interest matters, some of which, are taken up suo moto by other Judges.

When suo moto cases are taken up by a Court, the Judges use their discretion, without consulting the CJI, making roster and listing irrelevant. Therefore, it is asked whether the new dictum, pronounced by the Constitution bench on November 10, saying CJI is the master of the roster, could render Rule 12 (1)(a) under the Chapter on PIL of Supreme Court Rules, 2013 invalid.  This rule is clear that a PIL petition may commence as a suo moto petition in pursuance of the order of the CJI or Judge of the Court.

Anomalies in November 10 and 14 Judgments

The judgment of the November 10 Constitution bench and the three-Judge bench in the Kamini Jaiswal matter on November 14 are riddled with several anomalies.  One is that the November 10 judgment has impliedly overruled a two -Judge bench’s order, and any implied overruling has to be formally overruled also in a specific case.  Deepening the mystery, the November 10 Constitution bench, which assembled at short notice, was not seized of the petition filed by Kamini Jaiswal, which was referred by Justices Chelameswar and S. Abdul Nazeer, to the Constitution bench of the first five Judges, which was to assemble on November 13, but which didn’t.  The November 10 Constitution bench was only seized of the petition filed by CJAR, which was referred to the CJI for his administrative decision by Justices Sikri and Ashok Bhushan a few hours earlier on that day.

A constitution bench is not formed without the enunciation of constitutional issues to be resolved by the bench. Justices Sikri and Ashok Bhushan did not raise any such issues for resolution by the Constitution bench.  Nor did it say that it disagreed with Justices Chelameswar and Nazeer, who had referred a similar petition, heard by them, to the Constitution bench of the first five Judges.  In fact, Justices Sikri and Bhushan took note of the formation of the Constitution bench of first five Judges on November 13 to hear the similar case, in their order, and left it at that, so that the CJI, in his administrative capacity, would do the needful.

As the November 14 judgment of the three-judge bench of Justices R. K. Agrawal, Arun Mishra, and A. M. Khanwilkar shows, the CJI imagined a disagreement between Court No. 2 and 6 on the issue, and went ahead to hear and decide it by setting up a Constitution bench of seven, and finally, five Judges.

More significant, the November 10 judgment of the Constitution bench, which assembled at short notice, did not set aside even impliedly, the part of the order of Justices Chelameswar and Nazeer, which directed the CBI to place all the documents it gathered in its investigation of the case in a sealed cover and submit it before the November 13 Constitution bench, which never met.

Therefore, can the registry of the Supreme Court be accused of contempt of court, for its non-compliance with the November 9 order of Court No. 2?  Also, can the three-Judge bench, which gave a clean chit to the CJI and Justice Khanwilkar, who heard and disposed of the medical college case, a day prior to the CBI registering its FIR on September 19, be faulted for reaching its conclusion about their innocence, without even looking at the materials gathered by the CBI, and which Court No. 2 had directed it to submit in a sealed cover?  Is the CBI not liable for contempt of court No. 2 as well, as this direction of the court, has been left untouched by the November 10 Constitution bench?

Well, watch this space.


Cover Image Courtesy: Supreme Court of India website. 


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