CJI recalls 2-judge bench order directing constitution of 5-judge bench; New bench to be formed

Court number 1 of the Supreme Court witnessed a high voltage drama when a 7-judge bench headed by the Chief Justice of India, Justice Dipak Misra, assembled for reviewing the 2-judge bench order calling for constitution of a Constitution Bench of the first five judges of the Supreme Court to hear the matter wherein it was alleged that attempts were made to bribe some Supreme Court Judges in the matters relating to Medical admission scam. The bench of J Chelameswar and S. Abdul Nazeer, JJ given the said order on 09.11.2017 and had listed the matter on November 13, 2017.

As per the petition filed by advocate Kamini Jaiswal highlighted that a case was registered by the Central Bureau of Investigation against Retired Orissa High Court Judge, Justice IM Quddusi containing serious allegations implicating the said Judge under Section 8 and Section 120-B of the Prevention of Corruption Act, 1988. Also, in another related matter mentioned before the bench of Dr. AK Sikri and Ashok Bhushan, JJ, Advocate Prashant Bhushan brought the order dated 09.11.2017 to the notice of the Court and hence, the Court ordered that the matter be placed before the Chief Justice for passing appropriate orders for listing this matter.

The 7-judge bench excluded Chelameswar, J, the senior most judge of the Supreme Court. Sikri and Bhushan, JJ also recused themselves from the bench and hence, the matter was then heard by a 5-judge bench of CJI along with RK Agrawal, Arun Mishra, Amitava Roy and AM Khanwilkar, JJ.

The order of the 5-judge bench read:

“There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers.”

The bench relied upon the decision of a three-Judge Bench in State of Rajasthan vs. Prakash Chand, (1998) 1 SCC 1, wherin it was held that the Chief Justice of the High Court is the master of the roster and there is no justification not to treat the Chief Justice of India, who is the Chief Justice of the Apex Court, to have the same power.

It was added:

“Needless to say, neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible.”

Amitava Roy, J, said:

“You are supporting the cause of accusing a sitting Chief Justice on his face!”

Advocate Kamini Jaiswal, who filed the petition before the Court said that in the last one month, the CJI has taken up 6 matters that were before other benches.

To this, CJI responded:

“Yes! That is my prerogative. The MoP matter ought not to have been heard on the judicial side.”

Responding to the demands of certain advocates who said that the proceeding of the matter must be carried in camera and press should not be allowed to print it, CJI said:

“All of us collectively believe in freedom of speech as long as it is within limits. But I am always of the view that Freedom of Expression must be respected. I will not restrain the press.”

CJI, hence, directed that the matter be placed before him for forming an appropriate bench. The matter is now listed after 2 weeks. [Campaign for Judicial Accountability and Reforms v. Union of India, WRIT PETITION (CRL.) NO.169 OF 2017, order dated 10.11.2017]

With inputs from: https://twitter.com/vikramhegde

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