"It is hereby notified for the information of the Members of the Bar and the Parties appearing in person that hencefoth oral mentioning, in respect of matters which have not already been assigned/listed before any other bench, will be allowed only before the Court presided over by Hon’ble Chief Justice of India at 10.30 am."
Was this brief, even terse, circular, issued by the Supreme Court registry on 10 November, a harbinger of the calamitous events of Friday, 12 January, 2018, when Justice Jasti Chelameswar led a mutiny of sorts against the Chief Justice of India? Justice Chelameswar described the press conference as an "extraordinary" step without adequately explaining the "extraordinary situation" that he and three other senior colleagues said they were forced to respond to.
After much prodding and probing by the media, Justice Chelameswar, Justice Ranjan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph reluctantly cited events before and after 10 November as possible triggers for the explosion. But there was no mention of this extraordinary circular which, on the face of it, was merely underscoring an existing practice but, between the lines, effecting a major change.
Justice Gogoi confirmed that the immediate provocation was the allotment of the case pertaining to the death of Justice BH Loya to a “junior” bench that very morning of 12 January. A letter they released referred to an incident on 27 October when a two-judge bench passed orders in a case that has now come to known as the RP Luthra versus Union India case. Here, too, the judges expressed their objection to the CJI for setting up a new “preferred” bench to hear issues arising out of the Memorandum of Procedure (relating to the appointment of judges) when a constitutional bench was already seized of the matter.
Neither of the two incidents adequately explained why matters spiralled downwards so alarmingly within eight weeks (27 October – 12 January) so as to render four of the country’s senior most judges helpless enough to call upon the “nation to decide” how to restore order in the highest court of the land.
The Luthra case is not the first instance of disagreement over allotment of cases. Preferrential allotment is a practice older perhaps than even the Supreme Court of India. It is not going to end with the Loya case either now that all hell has broken loose. (The exclusion of the senior four from the Constitution bench to hear seven cases from 16 January is enough proof of that.)
So the press conference of 12 January left many gaps in understanding the issue at hand. What was the big departure by the CJI from convention that the four judges were complaining so bitterly about? In an institution where convention is as much revered as the Constitution, why were they themselves breaking a convention (that judges don’t speak to the media)?
The little noticed 10 November circular helps fill critical gaps in our understanding of the extraordinary situation that the four judges were responding to equally extraordinarily.
First, let’s take a look at the circular:
Oral mentions, as a rule, are heard by the CJI, and don't quite merit reiteration. But this 55-word innocuous-looking circular was anything but ordinary. Without explicitly saying so CJI Misra was cutting out Justice Chelameswar, his senior-most brother judge, completely from the responsibility of hearing oral mentions.
This was a drastic departure from a time-honoured convention. Until the circular came along, the senior most judge of the court would hear oral mentions when the CJI was busy with matters of a Constitution bench. In fact, on two consecutive days - 8 November and 9 November - preceding the circular, Justice Chelameswar had heard oral mentions and passed orders that put the CJI in a difficult spot (more on this later).
This circular was the CJI’s comeback; his way of ensuring that his senior-most colleague did not slip one past him while he was busy on a Constitution bench. That’s why the circular said oral mentions could be made only before the Chief Justice at 10.30 am. The CJI effected a proceedural change in his court as well to be always available for oral mentions. He would now take up oral mentions every day at 10.30 am for one hour and only then convene the Constitution bench, effectively excising Justice Chelameswar’s role in hearing oral mentions.
The first question that comes to mind then is why did CJI Misra immobilise his senior-most colleague with respect to oral mentions? The answer is as simple as it is sad: A complete break down of trust between the top two judges of India. This was amply demonstrated in a string of judicial proceedings on three successive days (8, 9 and 10 November) relating to the MCI bribery case, which more than any other matter, seems to be the centrepiece of this sorry judicial joust.
A brief idea about the Medical Council of India vs the Prasad Education Trust case is in order here. A three-judge bench led by CJI Misra was intermittently hearing cases arising out of the MCI denying permission to the Trust to open a medical college and for moving to encash the Trust’s Rs 2 crore bank guarantee. Late in August 2017 the bench had held back MCI from encashing the bank guarantee. On 18 September it again upheld the stay on encashing the bank guarantee and asked MCI to conduct a fresh inspection to see if the Trust could admit students for academic session 2018-2019. That is where the case stands now.
But the next day (19 September) the Central Bureau of Investigation (CBI) lodged an FIR against six persons, including a former judge of the Orissa High Court, IM Quddusi and two managers of Trust for trying to influence the outcome of the case in the Supreme Court.
On 8 November, Prashant Bhushan of the Campaign for Judicial Accountability and Reforms (CJAR) moved a petition for urgent hearing in the MCI matter. The burden of his plea was that a Special Investigation Team (SIT) under the direct charge of the Supreme Court should take over the probe from the CBI. He contended that since aspersions were being cast on a bench headed by the CJI the court should monitor the investigations directly - given that CBI, being a government organisation, could be manipulated.
Since CJI Misra was conducting the hearings of a Constitution bench that day, Bhushan’s petition came up for oral mention before Justice Chelameswar, who then admitted Bhushan’s petition and posted it for hearing two days later (on 10 November) before his own bench, knowing well that the MCI case was being heard by a bench headed by the CJI. Notably, this happened 12 days after the Luthra case, wherein the four senior-most judges were upset (as revealed in the letter they released to the media) that it was allotted to a new bench even though a Constitution bench was seized of the matter.
CJI Misra moved quickly. Later that day (8 November) he reassigned the case to another bench comprising AK Sikri and Ashok Bhushan who would take it up on 10 November. Effectively, the case was wrested from Justice Chelameswar’s court by the CJI.
The very next day (9 November) another advocate, Kamini Jaiswal, filed a fresh petition in the MCI matter. She also contended that since the CBI investigation suggested that attempts were being made to influence the Supreme Court bench hearing the MCI case, the matter needed to be handed over to an SIT and that CJI Misra should not be part of the bench dealing with it. Her lawyer, Dushyant Dave made an oral mention for urgent hearing at 10.30 am. The Chief Justice was again busy with matters of the Constitution bench. So the oral mention took place before Justice Chelameswar (along with Justice Abdul Nazeer). They agreed to hear the petition at 12:45 pm the same day.
Meanwhile, the Constitution bench of the Chief Justice, which normally breaks at 1 pm for lunch, abruptly concluded proceedings just past noon. And when Justice Chelameswar’s bench took up Jaiswal’s petition for hearing at 12:45 pm, an official from the Supreme Court registry handed over a note from the CJI suggesting that since the CJI had already assigned a similar case to another bench Justice Chelameswar should refrain from passing orders on this matter.
Justices Chelameswar and Nazeer brushed aside the advice and admitted Jaiswal’s petition. Unlike on the previous day when they assigned it to a two-member bench, this time they not only referred it to a Constitution bench but also dictated its composition (first five judges in the order of seniority) and posted the case to 13 November. Convention is that the CJI decides the composition of Constitution benches but Justice Chelameswar broke it.
The bench of Justices Sikri and Bhushan took up the case on 10 November morning and referred the issue to a Constitution bench. Within hours the Chief Justice constituted a seven-member bench headed by himself and not including Justice Chelameswar. Two judges recused themselves so a five-member bench took up the matter at 3 pm. It was an ugly spectable wherein Prashant Bhushan repeatedly asked the CJI to recuse himself from the hearing because "the FIR is directly against you" and the CJI responded with "there's not a word against me in the FIR".
Prashant Bhushan stormed out of the court complaining that he was not being allowed to make his submissions. A little later CJI Misra pronounced the bench’s ruling. It reiterated that the CJI is the master of the roster and annuled Justice Chelameswar’s order of the previous day setting up a Constitution bench. It said both the petitions – Bhushan’s and Jaiswal’s – would be taken up by a new bench to be constituted by the CJI in two week’s time.
This unfortunate run of events wherein one bench of the Supreme Court tried to trip another and vice versa provided the background for the unprecedented circular in question. Having snuffed out two attempts by his senior-most colleague to put him in a tight spot, CJI Misra ended the day by ensuring he would no longer have to look over his shoulder to see what his seniormost colleague was up to. He just cut him out of oral mentions altogher.
That is why the central theme of the letter they wrote to the CJI recognised him as the master of the roster, but pointed out that it was “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”.
CJI Misra and the four judges had their first meeting on Tuesday but could not break the ice. They are slated to meet again this afternoon for a second attempt at reconciliation. But unless they fix the broken trust amongst themselves, a lasting solution is unlikely. And as long as the circular remains in force, it will serve as a grim reminder of the lows that the Supreme Court hit in the last couple of months.
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Updated Date: Jan 17, 2018 18:37 PM