Divisions in Supreme Court? Chief Justice Annuls Colleague’s Order

In an unprecedented move, the CJI took up a matter other judges had already ruled on and invalidated their orders.

A five-judge bench of the Supreme Court, headed by Chief Justice of India Dipak Misra, conducted a controversial hearing on Friday, and held that the CJI alone could decide which judges (and how many judges) would hear cases brought before the Court, even if the case involved allegations against the CJI.

As part of their order, the bench held that any directions to the contrary, even by other Supreme Court judges, were invalid. Therefore, in effect, the CJI and his bench reversed an order passed on Sunday by Justices Chelameswar and Abdul Nazeer, which had held that a Constitution Bench of the five senior-most judges of the Supreme Court was needed to decide whether or not to set up a special investigation into allegations of bribery against judges.

Background: CBI Investigates Bribery of the Judiciary

As discussed here, the CBI is investigating allegations of a conspiracy in which retired Orissa High Court judge IM Quddusi promised a medical college, which had been derecognised, that he would help them get a favourable decision from the Supreme Court. When aspects of this case have previously come up before the Supreme Court, they have been heard by benches, which included the current CJI.

Two PILs were recently filed in relation to this issue, one by the Campaign for Judicial Accountability and Reforms (CJAR), and the other by senior advocate Kamini Jaiswal.

Both petitions asked for an independent, deep, and thorough investigation of this Quddusi case by a special investigation team, to be headed by a former CJI and monitored by the court. The petitioners filed the PILs because the case involves allegations of corruption at the highest levels of the judiciary (given the potential involvement of the CJI and other sitting judges of the Supreme Court), and they were concerned with the CBI’s handling of the matter.

These concerns arose in part because the CBI did not oppose the bail applications by Justice Quddusi and the others, which is strange given that the CBI reportedly have some extremely sensitive information regarding the case, in their possession.

As mentioned earlier, Justice Chelameswar and Justice Nazeer passed an order on Thursday, in which they advocated setting up a Constitution Bench to decide the issue on Monday – this was with reference to the petition filed by Ms Jaiswal.

Justice Sikri and Justice Ashok Bhushan heard the CJAR petition in the morning on Friday, and decided to refer it to the same Constitution Bench, given the similarities between the two cases.

Chief Justice Takes up the Issue

After Justices Sikri and Bhushan passed their order on the CJAR petition, it was expected that this would be the end of the matters until Monday. However, a couple of hours later, it became known that the CJI had set up a seven-judge bench to look into the CJAR petition at 3 pm on Friday.

This was entirely unprecedented, since the matter had not been listed for the CJI or those other judges.

This seven-judge bench included Justices Sikri and Bhushan, who then decided to recuse themselves (given they had already passed an order on the matter earlier in the day). This meant that the bench was reduced to five at the last minute, before the hearing began.

For a long period, it was not entirely clear what the legal issues were that the CJI’s bench was supposed to be discussing. Initial arguments seemed to be proceeding on the question of whether taking up the bribery allegations amounted to contempt of court, given that they related to the CJI himself.

The Supreme Court Bar Association (SCBA) came out and argued that the actions of Mr Bhushan (who was arguing for CJAR), as well as Ms Jaiswal (and her advocate Dushyant Dave) had in fact committed contempt, something which was vociferously endorsed by several advocates in the courtroom.

The Relevant Issue: Judicial Propriety

The CJI then clarified that the court was not looking into whether or not there had been contempt of court, but was instead looking into whether or not it was proper for anyone except the CJI to decide which judges and how many judges would sit and look into a case before the Supreme Court.

This was evidently because Justices Chelameswar and Nazeer had held the previous day in Ms Jaiswal’s petition that the case should be decided by a Constitution Bench consisting of the five senior-most judges of the Supreme Court. Even though Mr Dave had wanted the CJI to be excluded from the bench, the two judges did not agree with him, and insisted that the senior-most judges should be on it – which would have automatically included the CJI.

Mr Bhushan sought to argue that it was not appropriate for the CJI to decide the composition of the bench to look into the issue, since the bribery allegations were linked to him. This would appear to run counter to the decisions of the courts, which had upheld the principle of natural justice that “no man shall be a judge in his own cause”.

This led to a heated argument between Mr Bhushan and the judges and the lawyer for the SCBA, which culminated in Mr Bhushan leaving the courtroom in anger as he felt he wasn’t being given a chance to speak. In a highly irregular move, the judges consulted with a number of senior advocates present in the courtroom as well, even though they were not involved in the case.

The judges disagreed with the argument of Mr Bhushan, instead agreeing with the SCBA’s argument that the CJI was the “master of the roster”, in accordance with a previous decision of the Supreme Court.

The Order

Despite the SCBA’s contention that Mr Bhushan, Ms Jaiswal and Mr Dave had committed contempt of court, the CJI held that this would require a separate application. In addition, the bench also refused to place any restrictions on the ability of the press to report on the proceedings in court on Friday, or the issues.

Details of proceedings in the court were live-tweeted by some of the advocates present, notably Vikram Hegde, who got the information out first.

"There cannot be an order directing a matter to be placed before a particular bench"

— vikramhegde (@vikramhegde) November 10, 2017

As “master of the roster”, the bench held that only the CJI had the power to decide which judges heard the matter. As a result, any order passed by anyone else directing a case to be placed before a particular set of judges was held to be invalid – thereby reversing what Justices Chelameswar and Nazeer had done, even though the bench wasn’t actually hearing the matter.

The CJI concluded the order by saying that the two petitions would be heard two weeks from now, but did not specify which judges (or how many) would hear the cases.

Ms Jaiswal expressed concerns that the CJI had transferred the matter to himself despite it being heard by another – something which had happened six times in the last month.

Two days ago, for instance, the CJI recalled an order passed by Justices UU Lalit and AK Goel, which sought to follow up with the Centre on the formulation of a Memorandum of Procedure on appointment of judges, something which had been delayed for two years. The CJI dismissed these concerns, saying these matters fell within his prerogative.