Drama in Supreme Court as chief justice annuls order on case casting aspersions on judiciary

There was high drama in the Supreme Court for the second consecutive day on Friday, with the Chief Justice of India Dipak Misra constituting a special five-judge bench to hear a case casting aspersions on the judiciary and, at the same time, annulling an order passed by a two-judge bench of the apex court on Thursday, listing the case for hearing by a Constitution Bench of the five-senior most judges of the court, minus the Chief Justice himself.

The drama wasn’t restricted to the scrapping of the day-old order, though. It also included criticism of that order, an exchange between the chief justice and lawyer Prashant Bhushan – with the latter asking the former to recuse himself from the case and the former refusing to do so, and a demand by a group of lawyers for a contempt petition against Bhushan for casting aspersions on the Chief Justice.

At the heart of the controversy that is roiling the country’s top court, and forcing judges and lawyers to take sides, is a case filed by the Prasad Education Trust seeking relief from a government order barring it from admitting students to its medical college in 2017-18 and 2018-19. The trust sought relief from the Supreme Court and the Allahabad high court. On September 18, a bench of the Supreme Court headed by the Chief Justice denied it relief for 2017-18 and asked the Medical Council of India to reassess the college regarding its admission of students for 2018-19.

Around the same time, the Central Bureau of Investigation filed a case against Justice (retired) IM Quddusi and a certain Bhavna Pandey under the anti-corruption law. The two were accused of assuring the college representative of getting favourable orders from the top court.

On Wednesday, a Public Interest Litigation by activist group Campaign for Judicial Accountability and Reforms, asking for the CBI investigation to be handed over to a court monitored Special Investigation Team came up before a bench headed by Judge Jasti Chelameswar. He listed it for hearing on Friday.

On Thursday, a similar petition filed by Kamini Jaiswal was brought before him again, and after expressing his concern over the seriousness of the issue, Justice Chelameswar listed it for hearing by a Constitution Bench. He also acceded to a request by the petitioner’s lawyer that the Chief Justice not be part of the bench because he had heard the Prasad Education Trust case previously.

On Friday, the CJAR petition was heard by a bench headed by Justice AK Sikri, who referred it to the Chief Justice for listing and to resolve the issue of a similar petition already having been referred to a Constitution Bench by Justice Chelameswar. The Chief Justice constituted a special five-judge bench which heard the case the same afternoon and, setting aside the order of Justice Chelameswar, said that only the Chief Justice could decide on the constitution of benches. “There cannot be a command or order directing Chief Justice of India to constitute a particular kind of a bench.”

Justice Arun Mishra, part of the special bench, took pot shots at Justice Chelameswar’s order and asked: “Can a 2 judge bench refer a matter to particular 5-judge bench? Are other judges incompetent and are you doubting everybody’s integrity in this court.”

Interestingly, when the bench led by Justice Chelameshwar heard the matter on Thursday, he received a note from the Chief Justice’s office, the contents of which are not known.

At the Friday afternoon hearing by the special bench headed by the Chief Justice, charges flew thick and fast.

When Prashant Bhushan, the lawyer for CJAR, asked the Chief Justice to recuse himself, the latter wanted to know what the charges against him were. He added that he could not be held accountable for what “XYZ talks about me somewhere”.

Members of the Supreme Court Bar Association led by its president RS Suri supported the Chief Justice and sought institution of contempt proceedings against Bhushan, who according to them had made frivolous charges against not just the CJI but also the Supreme court.

Bhushan left the court midway and said the court “can pass any orders its wants.’

Senior advocate Dushyant Dave – who argued the matter for Jaiswal on Thursday – said: “What happened today reflects ultimate fall of this great institution . It has destroyed its credibility on its own.”

The special bench, he said, was unconstitutional and violated all cannons of norms and decency. “The CJI could not have presided over the bench.”

“Let us hope and pray that other judges including those in collegium will take lead and show the nation the good face of this great court,” Dave added.