Hot Off The PressNews

In an unprecedented move, the 4 senior most judges of the Supreme Court felt the need to address the nation in an effort to preserve not only the sanctity of the judicial institution but also the democracy. Justice J. Chelameswar, along with Justice Ranjan Gogoi, Justice Madan B. Lokur and Justice Kurian Jospeh, held a press conference at his residence to put an end to the speculations making rounds over the differences between the judges and the Chief Justice of India, Justice Dipak Misra, over the assignment of cases.

At the end of the address, the judges released a letter that they had written, addressed to the Chief Justice of India. Below is the text of the letter:

“Dear Chief Justice,

It is with great anguish and concern that we have thought it proper to address this letter to you no as to highlight certain judicial orders passed by this Court which has adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the Office of the Hon’ble the Chief Justice of India.

From the date of establishment of the three chartered High Courts of Calcutta, Bombay and Madras, certain traditions and conventions in the judicial administration have been well established. The traditions were embraced by this Court which came into existence almost a century after the above mentioned chartered High Courts. These traditions have their roots in the anglo saxon jurisprudence and practice.

One of the well settled principles is that the Chief Justice is the master of the roster with a privilege to determine the roster, necessity in multi numbered courts for an orderly transaction of business and appropriate arrangements with respect to matters with which member/bench of this Court (as the case may be) is required to deal with which case or class of cases is to be made. The convention of recognizing the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the Court is a convention devised for a disciplined and efficient transaction of business of the Court but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues.

It is too well settled in the jurisprudence of this country that the Chief Justice is only the first amongst the equals – nothing more or nothing less.

In the matter of the determination of the roster there are well-settled and time honoured conventions guiding the Chief Justice, be the conventions dealing with the strength of the bench which is required to deal with a particular case or the composition thereof.

A necessary corollary to the above mentioned principle is the members of any multi numbered judicial body including this Court would not arrogate to themselves the authority to deal with and pronounce upon matters which ought to be heard by appropriate benches, both composition wise and strength wise with due regard to the roster fixed.

Any departure from the above two rules would not only lead to unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution. Not to talk about the chaos that would result from such departure.

We are sorry to say that off late the twin rules mentioned above have not been strictly adhered to. There have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of this Court selectively to the benches “of their preference” without any rationale basis for such assignment. This must be guarded against at all costs.

We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent.

In the above context, we deem m it proper to address you presently with regard to the Order dated 27th October, 2017 in R.P. Luthra vs. Union of India to the effect that there should be no further delay in finalizing the Memorandum of Procedure in the larger public interest. When the Memorandum of Procedure was the subject matter of a decision of a Constitution Bench of this Court in Supreme Court Advocates-on-Record Association and Anr. vs. Union of India [(2016) 5 SCC 1] it is difficult to understand as to how any other Bench could have dealt with the matter.

The above apart, subsequent to the decision of the Constitution Bench, detailed discussions were held by the Collegium of five judges (including yourself) and the Memorandum of Procedure was finalized and sent by the then Hon’ble the Chief Justice of India to the Government of India in March 2017.

The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalized by the Collegium has been accepted by the Government of India on the basis of the order of this Court in Supreme Court Advocates-on-Record Association (Supra). There was, therefore, no occasion for the Bench to make any observation with regard to the finalization of the Memorandum of Procedure or that that issue cannot linger on for an indefinite period.

On 4 July, 2017, a Bench of seven Judges of this Court decided In Re, Hon’ble Shri Justice C.S. Karnan [(2017) 1 SCC 1]. In that decision (referred to in P.P. Luthra), two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the Memorandum of Procedure.

Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices’ Conference and by the Full Court. Such a matter of grave importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench.

The above development must be viewed with serious concern. The Hon’ble Chief Justice of India is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the Collegium and at a later stage, if required, with other Hon’ble Judges of this Court.

Once the issue arising from the order dated 27th October, 2017 in R.P. Luthra vs. Union of India, mentioned above, is adequately addressed by you and if it becomes so necessary, we will apprise you specifically of the other judicial orders passed by this court which would require to be similarly dealt with.

With kind regards,

J. J. Chelameswar

J. Ranjan Gogoi

J. Madan B. Lokur

J. Kurian Joseph”

To read the details of the press conference, click here.

Case BriefsSupreme Court

Supreme Court: Dismissing the petition seeking a writ of mandamus or any other writ or direction of similar nature to constitute a Special Investigation Team (SIT) headed by a retired Chief Justice of India to investigate in the matter of alleged conspiracy and payment of bribes for procuring favourable order in a matter relating to Medical admissions, the 3-judge bench of RK Agarwal, Arun Mishra and AM Khanwilkar, JJ imposed the cost of Rs. 25 lakhs on the petitioner i.e. Campaign for Judicial Accountability and Reforms (CJAR) represented by Advocate Prashant Bhushan and directed that the sum be deposited before the Registry of this Court within six weeks whereafter the said amount shall be transferred to Supreme Court Bar Association Advocates’ Welfare Fund.

Prashant Bhushan had submitted before the Court that the purpose of filing this petition is not to name any Judge of this Court but to protect the independence of the judiciary and in order to arrive at an impartial investigation, this Court may appoint a SIT headed by a retired Chief Justice of India. He had brought to the Court’s notice that in the FIR names of various persons have been mentioned as suspected accused along with other unknown public servants and private persons and that one does not know how many public and private persons are involved in it and the matter relates to huge gratification for inducing public servants in a matter pending before this Court.

Attoney General KK Venugopal, on the other hand, said that the present petition was an abuse of the process of court as the same bench had recently dismissed the petition filed on the same premise by advocate Kamini Jaiswal.

The Court, calling the petition wholly frivolous, contemptuous and unwarranted, said that the petition:

“aims at scandalizing the highest judicial system of the country, without any reasonable basis and filed in an irresponsible manner, that too by a body of persons professing to espouse the cause of accountability.”

The Court, hence, dismissed the petition with exemplary costs on CJAR in order to ensure that such attempt is not repeated in future. [Campaign for Judicial Accountability and Reforms v. Union of India,  2017 SCC OnLine SC 1406, decided on 01.12.2017]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RK Agarwal, Arun Mishra and AM Khanwilkar, JJ reserved verdict on the petition filed by Campaign for Judicial Accountability and Reforms (CJAR) wherin it was alleged that attempts were made to bribe some Supreme Court Judges in the matters relating to Medical admission scam.

Earlier, the same bench had dismissed the petition filed by advocate Kamini Jaiswal stating that there was no question of registering any FIR against any sitting Judge of the High Court or of this Court as it is not permissible as per the law laid down by a 5-judge Constitution Bench in K. Veeraswami v. Union of India, (1991) 3 SCC 655 ,wherein this Court observed that in order to ensure the independence of the judiciary the apprehension that the Executive being largest litigant, it is likely to misuse the power to prosecute the Judges.

The bench was formed after the Court of CJI witnessed huge ruckus after, 09.11.2017, a 2-judge bench of J Chelameswar and S. Abdul Nazeer, JJ had said that the petition filed by Kamini Jaiswal be heard by the Constitution Bench of the first five Judges.

On 10.11.2017,  Dr. AK Sikri and Ashok Bhushan, JJ, in the present case, ordered that the matter be placed before the Chief Justice for passing appropriate orders for listing this matter. When the CJI took note of the issue, he, along with 4 other judges, recalled the 2-judge bench order in Kamini Jaiswal matter that had placed the matter before a Constitution bench of the first five judges of the Supreme Court. The 5-judge bench said:

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.”

The order will be pronounced on 01.12.2017. [Campaign for Judicial Accountability and Reforms v. Union of India, Writ Petition (Crl) No. 169/2017, order dated 27.11.2017]

Case BriefsSupreme Court

The 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, 2017 SCC OnLine SC 1302, order dated 10.11.2017]

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