On Friday, 10th November, in what is a shockingly unconstitutional order, a five-judge bench of the Supreme Court (SC), hurriedly constituted and headed by the Chief Justice of India (CJI) Dipak Misra, annulled an order passed by another SC bench of Justice Jasti Chelameswar and Justice Abdul Nazeer. A brief timeline of the story, as it unfolded, is as follows.
On the morning of 8th November, a writ petition by the committee for judicial accountability and reforms (CJAR) was mentioned before a bench headed by Justice Chelameswar, the senior-most judge after the CJI, for urgent listing.
Usually, out-of-turn listings are obtained by mentioning matters before the CJI, as he/she (India has never had a ‘she’ as a CJI, yet…) is in charge of the roster, i.e., determines the composition of various benches, the matters to be listed before the various benches and the dates on which such matters should be listed.
However, when the CJI heads a Constitution bench, i.e., a bench of five judges or more, urgent mentioning is usually done before the bench headed by the next senior-most judge.
On this day, the CJI was heading a five-judge bench that was hearing the matter relating to the powers of the Delhi’s lieutenant governor under the Constitution and, therefore, the mentioning before Justice Chelameswar was normal, as he is the next senior-most judge. The bench headed by Justice Chelameswar ordered the matter to come up before an appropriate bench on 10th November.
This writ petition by CJAR had sought a court-monitored probe by a special investigation team (SIT) headed by any former CJI into allegations pertaining to bribery and corruption in a medical college recognition matter which, at one point, was heard by a bench headed by the current CJI and a retired judge of the Orissa High Court.
In September, the Central Bureau of Investigation (CBI) had arrested, and later released on bail, the retired High Court judge on charges of corruption and conspiring to settle a Supreme Court case. The writ petition contended that, because the CJI is a potential investigation target in the matter, CBI, which reports to the executive, cannot be expected to handle the case as that would mean the independence of judiciary would be greatly compromised.
In the afternoon, it appears that the counsel for the petitioners were told that by the registry of the Supreme Court that the CJI had directed the listing of the petition before a bench headed by Justice AK Sikri on 10th November.
This was somewhat surprising for the petitioners, given that the CJI was expected to recuse himself from the case and not even pass administrative orders such as listing before a particular bench, etc.
On the morning of 9th November, senior advocate Dushyant Dave mentioned another writ petition with the same cause of action, filed by Kamini Jaiswal (she is an advocate-on-record in the Supreme Court and a patron of CJAR!), before the bench comprising Justice Chelameswar and Justice Nazeer.
Inexplicably, it appears that the advocates for the petitioners, Dushyant Dave and Prashant Bhushan, did not bring it to the notice of the bench that the previous CJAR matter had been listed before another bench on 10th November. This time round, the bench appears to have taken this as an urgent matter to be listed before itself on the same day at 12.45pm.
The news reached the CJI and, astonishingly, the Constitution bench that he was heading rose abruptly at 12 noon, ostensibly for CJI to consider further steps in the light of the developments before Justice Chelameswar’s bench. At 12.45pm, Justice Chelameswar’s bench ordered that the petition be listed before a Constitution bench consisting of the five senior-most judges of the Supreme Court on Monday, 13th November.
During the hearing, an officer of the registry also handed over a letter, purportedly from the CJI, ordering that all same-day urgent listings can only be mentioned before the CJI. Justice Chelameswar’s order also took note of the letter and annexed that letter along with the order to list on Monday.
On 10th November, the CJAR matter came up before a bench comprising Justice AK Sikri and Justice Ashok Bhushan which, without tagging the matter with Ms Jaiswal’s petition, referred it to a Constitution bench. The bench headed by Justice Sikri also allowed an oral request by the president of the Supreme Court Bar Association (SCBA), RS Suri to implead SCBA as a party respondent in the matter.
Later in the day, at 3pm, the CJAR petition was initially listed before a seven-judge bench headed by the CJI and comprising also Justice AK Sikri, Justice
AM Khanwilkar, Justice Arun Mishra, Justice Amitava Roy and Justice Ashok Bhushan. At the last minute, Justice AK Sikri and Justice Ashok Bhushan were no longer on the bench and, instead, a five-judge bench headed by the CJI took up the case.
What followed was total chaos with the CJI seeking opinions from advocates who were not representing any party in the case, and the advocate for the petitioner, Prashant Bhusan barely being heard. Additional solicitor-general, PS Narasimha, representing the Union of India, RS Suri, president of SCBA, and several other advocates were in favour of issuing contempt notices against Prashant Bhushan and Ms Jaiswal and CJAR. However, the bench led by CJI was more intent on undoing the order of the bench led by Justice Chelameswar passed on 9th November. Accordingly, the five-judge bench, shockingly, proceeded to annul a judicial order passed by a different bench.
Conclusion: This is the story of a tragedy of errors by everyone involved. It was clearly out of the norm for Justice Chelameswar’s bench to entertain the petition and not tag it along with the previous petition, when it was listed before another bench. It was also clearly out of the norm for that bench to, then, directly refer to a Constitution bench of its choosing without making it as a recommendation to the CJI which would have clearly had its force. It was also, clearly, improper for the second petitioner not to have the matter listed along with the CJAR petition before the Justice Sikri’s bench on 10th November.
The order of Justice Sikri’s bench was also irregular in allowing an oral impleadment of SCBA when its president mentioned it (without due authorisation from SCBA’s executive council being placed on the file), without hearing CJAR on that point. However, what was most shocking was the order passed by the bench led by the CJI on 10th November.
The CJI is the first among equals. While he is the master of the roster, one must not lose sight of the fact that he cannot be an appellate authority or a revisional authority over orders passed by other puisne judges who are his equals. All Supreme Court judges, including puisne judges, even have suo motu powers to take up matters for hearing, even when there is no formal petition.
Further, judicial propriety demands that whenever another bench’s orders are sought to be recalled or reviewed on any ground, it must include the judges that passed the original order—unless it is impossible to do so because of any of them having retired, etc. What happened in this case is, ostensibly, an unconstitutional assertion of the administrative precedence of CJI to annul a judicial order passed by a brother judge.
The Supreme Court is not only merely one branch of the State with the legislature and the executive being the others. It also is guardian of the Constitution itself, which is supreme; on its supremacy rests the legitimacy of all actions of the State. Competing orders of Court No.1 and Court No.2 (of the Supreme Court), resembling an open power tussle, have created a crisis of legitimacy and, therefore, the authority of the Supreme Court. The Supreme Court will take time to heal.
(A Delhi-based lawyer & a constitutional law enthusiast and commentator. @prasanna_s)