Bench hunting or forum shopping is when lawyers try to get a matter listed before a certain bench anticipating favourable orders. The undercurrent or allegation is that things in the Supreme Court can be “fixed” and order can be “arranged”.
Keeping these concerns in mind, by convention, the administrative responsibilities are solely the domain of the Chief Justice of India. CJI decides the bench, composition and if needed the strength of the bench. Neither the bench can refer the matter to itself, nor can any bench decide the composition of a constitution bench.
The tussle within top judiciary on November 10th came to the fore with the Supreme Court overturning the order of a two-judge bench to set up a larger bench to hear a graft case allegedly involving judges, asserting that Chief Justice of India was the “master of the roster”.
The showdown was over the issue of supremacy of constituting a bench in which the authority of Chief Justice Dipak Misra was allegedly undermined by a bench of Justices J Chelameswar and S Abdul Nazeer, which had yesterday set up a five-judge bench to hear a case of alleged bribery of judges in which a retired judge of Orissa High Court, Justice Ishrat Masroor Quddusi, is an accused.
Justice Chelameswar, who is the senior-most judge after the CJI, had ordered setting up of the five-judge bench of top judges of the apex court as a petition by an NGO and an advocate had claimed there were allegations against Justice Misra.
The bench, comprising CJI Misra and Justices R K Agrawal, Arun Mishra, Amitava Roy and A M Khanwilkar, said, “As far as the roster… the CJI is the master of allocation of work as well as deciding the composition and number of judges on a bench. We make it clear without any hesitation that this is followed as a convention to maintain judicial discipline and decorum.”
It added, “Once the CJI is recognised as the master of the roster, neither a two-judge bench nor a three-judge bench can allot a matter to itself or order constitution of a larger bench as if it is a direction to the CJI. Such an order cannot be passed. It is not in accordance with law and is irresponsible. An institution has to function within certain parameters and that is why there are rules. There cannot be a direction to the CJI to constitute a particular bench.”
Making it amply clear that the order of Justices Chelameswar and Nazir was null and void, the five-judge bench stressed, “If any such order is passed by any bench, that should not hold the field as this will be counter to the order of the decision of this Constitution Bench of the SC. Needless to say, no judge can take up matters on his own without it being referred to the CJI.”
The five-judge bench said the two petitions alleging a judge-middlemen nexus would be listed before an appropriate bench. Both petitions were based on common information — a CBI FIR that led to the arrest of a retired Orissa HC judge and several others in connection with a conspiracy to obtain favourable orders for private medical colleges from constitutional courts by offering illegal gratification to public servants and judges — and sought identical relief in setting up of an SIT to probe this under the supervision of a retired CJI.
Justices Chelameswar and Nazir had acceded on Wednesday to advocate Prashant Bhushan’s request and ordered listing of a petition by Campaign for Judicial Accountability and Reforms (CJAR), which had alleged that the CBI FIR relating to admissions to a Lucknow-based private medical college had detailed how a judge-middleman nexus was being used to obtain orders favouring medical colleges debarred from admitting students.
The CJI had ordered listing of this petition on Friday before a bench of Justices A K Sikri and Ashok Bhushan.
However, on Thursday, senior advocate Dushyant Dave mentioned a petition by advocate Kamini Jaiswal, identical to CJAR’s plea, for urgent hearing before a bench headed by Justice Chelameswar. Dave’s persistent plea that the petition must be heard by Justice Chelameswar’s bench, and not by the CJI as the latter had been hearing medical college cases, bore fruit with Justice Chelameswar’s bench agreeing to hear the matter. It ordered the petition to be listed before a bench comprising the first five senior judges on Monday.
On Friday, the bench of Justices Sikri and Bhushan referred the CJAR petition to the CJI for listing before an appropriate bench. The CJI seized this opportunity and the registry took out a notification at 2.42 pm saying the matter would be heard by a seven-judge bench at 3 pm.
However, at 2.52 pm, another notification said the CJAR petition would be heard by a five-judge bench at 3 pm.
Word spread rapidly and the CJI’s courtroom was packed with lawyers anxious to witness the unfolding events. Bhushan and Kamini Jaiswal were swamped by a sea of lawyers who demanded contempt of court action against them for making wild allegations moments after Bhushan said the CBI FIR in the medical scam mentioned the CJI’s name.
The five-judge bench repeatedly questioned Bhushan as to how a lawyer of his standing could make such an irresponsible statement. “Can an FIR be registered against a magistrate, a district judge, an HC judge, an SC judge or the CJI? There is a procedure. You must withdraw this irresponsible statement. What will happen if the judiciary is put at the mercy of a sub-inspector who can register an FIR?” it asked.
Simultaneously, Supreme Court Bar Association leaders Rupinder Singh Suri, Gaurav Bhatia, Ashok Bhan, R P Bhat and others kept insisting on initiation of contempt proceedings against Bhushan. Additional solicitor general P S Narasimha said it was a settled principle that the CJI was the master of the roster and he alone had the power to order listing of cases before a bench.
Cases getting withdrawn from some other court or an apparent negation of the authority of a CJI have been unprecedented developments at the highest court of the land whose credibility must remain unimpeached for keeping up the faith of the people.
The opaqueness of the system also generates several questions about procedures and practice being followed in distribution of important cases equitably between all the benches of the Supreme Court where the CJI is “the first among equals” only in terms of his administrative authority.
The extraordinary events in the last days demand concerted efforts by the fellow judges and senior lawyers to play the role of conscience-keepers and make sure the glory of the institution remains intact. They must rise to the occasion being the equal stakeholders in the institution. Their silence and abstinence at such a time of crisis may in fact prove too costly.