Chief Justice of India Dipak Misra, heading a five-judge Constitution Bench, overcame his “dilemma” and declared his dominance as the master of the roster in order to protect the Supreme Court from “anarchy” in a raucuous hearing marked by exchange of harsh words, heckling, brutal accusations of terrorising judges, forum-shopping and repeated warnings of contempt of court.
In short, the Constitution Bench declared that it is the prerogative of the Chief Justice of India to decide what case has to be heard by which judge.
This judicial order renders ineffective an order passed by a two-judge Bench led by Justice J. Chelameswar merely a day ago to constitute a Bench of the five seniormost Supreme Court judges to hear a corruption case on November 13, 2017 .
The FIR in the corruption case, investigated by the CBI, alleged that a conspiracy was hatched by certain persons, including a former Odisha High Court judge and a hawala dealer , to bribe Supreme Court judges hearing the case of a debarred private medical college. Chief Justice Misra himself was leading the Bench which had heard and decided the case of the medical college in question.
"Judicial institution would crumble"
In effect annulling Justice Chelameswar's order, the Constitution Bench held that “there cannot be any kind of command directing the CJI to constitute a Bench”. That is the convention of the court. The Bench held that no judge can take up or post matters on his own. That authority is the Chief Justice's exclusive domain.
Senior advocates, including Additional Solicitor General P.S. Narasimha, said the judicial institution would crumble if every judge acts like the Chief Justice of India.
There needs to be judicial discipline, the Constitution Bench agreed with the government law officer. "Judges have to act within their parameters set down by rules and precedents of the Supreme Court to protect judicial integrity and decorum," it said.
In its order, the Constitution Bench recorded that the CJI is indeed the first among equals on the judicial side, but on the administrative side, he is the master of the roster.
As litigants, junior lawyers and the media watched on, a large group of lawyers urged the Bench to “restrain” the Press from reporting the hearing. Chief Justice Misra however declared that he held the freedom of speech in the highest regard and will not restrain reporters as long as they stay within their territories.
Chain of events
The chain of events concerns two similar but separate petitions filed by Supreme Court advocate Kamini Jaiswal and NGO Campaign for Judicial Accountablity and Reforms. Both petitions had sought an SIT probe into the corruption case. Both pleas said Chief Justice Misra should not be part of any proceedings, both administrative and judicial, in the case.
Justice Chelameswar's Bench, which heard Ms. Jaiswal's petition, found the allegations in the FIR “disturbing” and ordered a five-judge Constitution Bench to convene on November 13. The Bench had ordered materials and evidence in the corruption case to be sealed and produced before the Constitution Bench on November 13.
On Friday, November 10 2017, the second petition by CJAR came up for hearing before a two-judge Bench of Justices A.K. Sikri and Ashok Bhushan. This Bench referred the petition to the CJI to pass “appropriate orders” even as Justice Sikri orally remarked that “anybody and everybody, however high, has to be subject to the rule of law. The hearing also saw advocate Bhushan telling the Bench that the CBI FIR was “squarely directed against the Chief Justice of India”.
Constitution of the five-judge Bench and contempt of court accusations
Shortly thereafter, Chief Justice Misra constituted this five-judge Bench comprising, besides himself, Justices R.K. Agrawal, Arun Mishra, Amitava Roy and A.M. Khanwilkar to hear the CJAR case. The hearing began at 3 p.m.
The session witnessed officebearers of the Supreme Court of Bar Association accuse the petitioner — lawyers Prashant Bhushan, Kamini Jaiswal and Dushyant Dave — of contempt of court for directly accusing Chief Justice Misra in the corruption case.
Office-bearers of the powerful Supreme Court Bar Association — led by its president and senior advocate R.S. Suri, some senior advocates, and other lawyers — accused the trio of browbeating the court with their petitions. “They file multiple petitions till they get favourable orders. This is forum-shopping. This is getting favourable orders by terrorism. Your Lordships should make them liable for contempt. The dignity of the judicial institution is at stake,” Mr. Suri said.
Chief Justice Misra said no advocate can say that the CJI should not hear a case. “Is this is not contemptuous?” Justice Misra asked the gathered lawyers.
Chief Justice Misra also said there was no procedure in law to name the CJI in an FIR. Rumours and unsubstantiated allegations cannot be used against judges; such practices will cripple the judiciary and are a threat to its existence, he said. Justice Misra also asked Mr. Bhushan, who was present, to take back his remarks about the CJI.
Chief Justice Misra challenged Mr. Bhushan to read from the FIR the part which directly accuses him in the corruption case. When Mr. Bhushan read out a paragraph, Chief Justice Misra observed: “Mr. Bhushan, I am really sorry but now you are liable for contempt. But you are not worthy of even contempt.”
“You made wild allegations against me. Now you can afford to lose your temper, but we cannot lose our temper. That is the beauty of this system,” Chief Justice Misra addressed Mr. Bhushan.
Mr. Bhushan accused the Bench of not giving him a chance to speak. He finally lost his cool and shouted at the Bench, “If you do not want to hear me before passing your order, then do whatever you want”. He was led out of the courtroom by his juniors as some of the other lawyers gathered in the courtroom shouted back at him.