The allegations levelled against Chief Justice Dipak Misra are “scurrilous and per se contemptuous”, observed one of the judges hearing petitions by the Campaign for Judicial Accountability and Reforms and advocate Kamini Jaiswal in the Supreme Court in the medical college bribery case. These petitions have caused damage to the court, said Justice Arun Mishra in an oral observation during the hearing by a three-judge Bench on Monday.
“The petitions [have] scandalised this great institution. The damage has already been done. Everybody is doubting the Supreme Court that too, merely on the basis of rumours spread. How do we repair this damage?” he said.
Justice Mishra is part of a Special Bench led by Justice R.K. Agrawal, and also comprising Justice A.M. Khanwilkar, which heard Ms. Jaiswal’s petition for an SIT investigation into an alleged conspiracy to bribe Supreme Court judges for a favourable outcome in a pending case of a debarred private medical college. Ms. Jaiswal’s petition draws its facts from an FIR registered by the CBI in the case.
“The court is in a crisis,” Attorney-General K.K. Venugopal agreed with Justice Mishra. Clarifying that he represented neither the Centre nor the CBI, Mr. Venugopal said the petitions have caused deep distress in the Supreme Court. They have created a split in the judiciary and in the Bar. “There is a crisis of confidence,” he said. The only way to repair the damage, he added, would be for Ms. Jaiswal to apologise and withdraw the petition. The Bench reserved its order on the maintainability of Ms. Jaiswal’s petition and indicated it would pass an order on November 14 itself.
On November 9, a two-judge Bench led by Justice J. Chelameswar had ordered a Constitution Bench of the “first five judges in the order of seniority” to convene on November 13 to hear Ms. Jaiswal’s plea.
However, this order prompted Chief Justice Misra to convene a five-judge Constitution Bench on November 10. The Constitution Bench declared that no other Supreme Court judge except the CJI can order Benches to be constituted in the Supreme Court.
The hearing in a jam-packed courtroom saw Ms. Jaiswal’s counsel and senior advocate Shanti Bhushan, assisted by advocate Prashant Bhushan, on the offensive.
Firstly, Mr. Bhushan asked Justice Khanwilkar to recuse from the Bench, saying the judge was part of the Bench which had heard and decided the medical college bribery case. Justice Khanwilkar refused.
Secondly, Mr. Bhushan invoked Articles 142 and 144 in reference to Justice Chelameswar’s order of November 9. He submitted that under Article 142 the Supreme Court could pass any judicial order to secure “complete justice.” Under Article 144, all civil and judicial authorities, including the CJI, were bound to act in aid of the Supreme Court. He termed the Constitution Bench order, which in effect nullified Justice Chelameswar’s order, as “totally illegal.”
'Court bound to respond'
Besides, Mr. Bhushan said, the Constitution does not say that only the CJI has authority to constitute Benches. He said the court was bound to respond to these arguments from the petitioner.
But the Bench said the issue about the November 9 order passed by Justice Chelameswar’s Bench was fait accompli as the Constitution Bench had already, on November 10, laid down the law that the CJI is the master of the roster.
Noting the K. Veeraswami case judgment that an FIR cannot be registered against a sitting judge without the President’s sanction, Justice Mishra observed that the primary issue involved in these petitions was that of propriety.
“What was the necessity to mention this petition (by Ms. Jaiswal) before court number 2 (Justice Chelameswar’s Bench) when another petition (CJAR’s) was already listed before a two-judge Bench led by Justice A.K. Sikri? Both these petitions are similarly typed...We are serious about forum-shopping...These are similar petitions by persons who are members of the same organisation (CJAR),” Justice Mishra observed.
Justice Mishra lashed out at the petitioners, saying, “It seems you wanted your petition to be heard by court number 2. Why were you involving court 2 unnecessarily? You see, we (Supreme Court judges) are all the same...we are all courts.”
Referring to the D.C. Saxena judgment of 1996 on “scurrilous” allegations against the CJI, Justice Mishra observed that it was anyway “sheer contempt” to demand that the CJI be kept out of the case.
Justice Mishra said the November 10 Constitution Bench was “unprecedented” because the November 9 order itself was unprecedented.
“Do you know what ‘first five judges’ means? Suppose I am judge number three. How can I put myself on a Bench?” Justice Mishra asked.