Institutional integrity of Supreme Court

Amritananda Chakravorty Mihir Samson

Last week the Supreme Court witnessed one of the most controversial events in itsentire history. The Chief Justice of India, Mr. Dipak Misra, annuled an order of the second seniormost judge of the Court, Justice J. Chelameshwar and Justice Abdul Nazeer passed on 9th November, 2017, thereby bypassing constitutional and judicial norms and propriety.
The present controversy is traced to a FIR filed by CBI in September, 2017 against some accused, including a retired High Court judge from Orissa, Justice I.M. Quddissi, on the basis that they allegedly conspired to get favourable orders from the High Courts and Supreme Court for a Lucknow-based organisation called Prasad Educational Trust. This organisation’s application for opening a medical college was twice rejected by Medical Council of India (‘MCI’), and twice the Supreme Court bench, which was hearing the matters headed by Justice Misra, asked the MCI to reconsider their application by conducting fresh inspection. Some accused were arrested by CBI and later released on bail.
In light of this, the Campaign for Judicial Accountability and Reforms (‘CJAR’) and Advocate Kamini Jaiswal filed two separate writ petitions pertaining to corruption allegations amongst highest levels of the judiciary, and seeking the setting up of Special Investigation Team (‘SIT’) by the Apex Court for an independent and fair investigation. Kamini Jaiswal’s petition was mentioned before Justice Chelameshwar on 9th November, 2017, who heard it with Justice Abdul Nazeer, and passed an order referring the matter to be heard by a Constitution Bench of five senior-most Judges of the Supreme Court, since it raised many critical issues regarding judicial corruption and accountability.
On 10th November, 2017, the CJAR’s petition came up before Justice A.K. Sikri who was unhappy about the other petition being taken up by J. Chelameshwar, and sent CJAR’s petition before Chief Justice of India for appropriate orders, and also impleaded Supreme Court Bar Association in the case. In the afternoon, the CJI suddenly set up first a seven judge bench, and then five judge bench to hear the CJAR’s petition, which almost led to a ‘constitutional crisis’. For almost 90 minutes, the CJI, along with Justice R.K. Agrawal, Justice Arun Mishra, Justice Amitava Roy, and Justice A.M. Khanwilkar, heard arguments from lawyers not connected with the matter, but the Petitioner’s advocate, Mr. Prashant Bhushan was not allowed to argue. The CJI was visibly upset with J. Chelameshwar’s order of setting up of a Constitution bench of five senior most judges, on the ground that CJI was the master of roster and was the sole authority to decide which bench will hear which matters or to set up a Constitution Bench. While SCBA and even Additional Solicitor General of India emphasised the sole authority of CJI to be the master of roster on the administrative side, other lawyers in fact demanded contempt proceedings against Prashant Bhushan and Kamini Jaiswal for bringing ‘disrepute’ to the institution of Supreme Court. It was quite evident that the entire chaos was orchestrated, in order to deviate from the real issue whether the CJI could hear a matter or even set up the bench if his name itself was involved in the case.
The CJI insisted that no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice.The Constitution bench then proceeded to annul the order of Justice Chelameshwaron the basis that “no judge can take up the matter on his own, unless allocated by the Chief Justice of India, as he is the master of the roster.” The CJI then directed the CJAR’s petition to be heard by a Constitution bench to be set by him.
The entire episode has left a bitter taste in the mouth of everyone, especially those fighting for judicial accountability and transparency, and has shaken the confidence of public in the administration of justice. The propriety of J. Chelameshwar’s order may be debatable, but clearly, the conduct of CJI leaves a lot to be desired, and the crisis of faith that was being earlier whispered in the corridors of the highest court is now out in the open. [Campaign for Judicial Accountability and Reforms v Union of India and Ors., Writ Petition (Criminal) No.169 OF 2017, date of order: 10.11.2017]

Major legal decisions

i. Petitions related to demonetisation referred to Constitution bench - The Supreme Court has referred 14 petitions relating to demonetisation for the consideration of the Constitution Bench. Some petitions have challenged the constitutional validity of demonetisation, whileothers seek more time to deposit the demonetized notes.The Centre has also clarified that no punitive action will be taken against the Petitioners who have sought more time to depsoit the demonetised notes, owing to delay in the disposal of the petitions. [Sudha Mishra v Union of India, Writ Petion (Civil)124/2017, date of order: 03.11.2017]

ii. Arguments on the status of NCT of Delhi currently being heard before Constitution Bench– A five judge bench of the Supreme Court has begun hearing on the matter pertaining to the relationship of NCT of Delhi with Central Government. Earlier a two judge bench had referred the matter to a constitution bench to hear the appeal filed by the Delhi Government against the decision of the Delhi High Court declaring the Lieutenant Governor of Delhi as the ‘administrative head’ of Delhi. The counsel for the Delhi government highlighted that such a conclusion was against the spirit of the Constitution. He further argued that daily governance had been paralysed because of the friction with the Governor, the ministers had to plead with civil servants to get simple tasks done. [Govt. of National Capital Territory of Delhi Vs. Naresh Kumar, Special Leave Petition (Civil) No. 026470/2016] (IPA/To be continued)

Saturday, 18 November, 2017