Press Note on an unprecedented hearing before a Constitution Bench at 3p. m. on the 10^th of November, 2017

10^th November 2017

Today the Campaign for Judicial Accountability and Reforms writ petition seeking a SIT to investigate the CBI FIR and allegations of conspiracy and payment of bribes for procuring a favourable order in a matter pending before the Supreme Court, was listed before Court No. 6. After some hearing the court directed it to be tagged along with the Kamini Jaiswal writ petition in a related matter.

The Supreme Court yesterday referred the case of Kamini Jaiswal, seeking a SIT in the CBI FIR alleging conspiracy to bribe apex court judges in a medical college case, to a Constitution Bench of the senior 5 judges. In that order the court refers to an administrative note issued by the Chief Justice which has been ordered to be annexed to the order. The note was handed over to Justice Chelameswar’s bench, across the bar, by a registrar in the course of hearing. The order of the court uploaded on the website yesterday did not contain this administrative note which was directed to be annexed. However a copy of that was made available with the certified copy of the order passed by the court yesterday.

The note purports to be a note put up by the registrar to the Chief Justice seeking some directions from the Chief Justice. At the end of para one of the note it says:

“Your Lordship has been pleased to direct that in future whenever such directions are issued, the matter(s) be listed before the Bench presided over by Hon’ble Chief Justice of India at 3p.m. or at such time as may be indicated by Your Lordship, on the same day or before such Bench as directed by the Hon’ble Chief Justice of India.”

Thereafter the note seeks the directions of the Chief justice on two questions:

“ (A) When Hon’ble the Chief Justice of India is in the Constitution Bench and any matter(s) upon oral mentioning is directed to be listed on the same day before the appropriate Bench, such matter(s) be listed, with an appropriate office report, before the Bench presided over by Hon’ble the Chief Justice of India on the same day at 3p.m. or at such time as may be indicated by Hon;ble the Chief Justice of India or before such Bench as directed by the Hon’ble Chief Justice of India.

or

(B) Any other direction as Your Lordship may deem fit to pass”

This note is purported to be dated 6^th November and purportedly signed by the Chief Justice of India on 6^th November itself in which he has favoured option A above. It is curious as to why the Registrar should be seeking reiteration of pre-existing standing directions of the Chief Justice of India on the said subject matter. It is also curious that if these directions were issued on 6^th of November and they are obviously directed at Court No. 2 which hears mentionings of urgent matter when the Chief Justice is in a Constitution Bench, why Court no. 2 was not made aware of these instructions ealier. and were only hand over across the table by the Registrar when the hearing of the Kamini Jaiswal case was in progress.

There is a further twist to this tale. On 9^th of November when Justice Chelameswar’s bench on mentioning of Kamini Jaiswal’s matter ordered the case to be listed before him at 12:45 p.m, the Chief Justice’s Constitution Bench was suddenly made to rise at noon and did no sit thereafter till post lunch.

At 2p.m. the Chief Justice mentioned that he had to rise early to attend to some family matters.

Read the order in the Kamini Jaiswal matter yesterday

Strangely at 2:45p.m. Prashant Bhushan received a call from the registry that a seven judge bench is being constituted to sit in Court no. 1 at 3p.m. and that he should come to court. At this point it is important to point out that the court did not list the related matter which was filed in the name of Kamini Jaiwal before this bench, with which this matter was tagged in the morning as per the proceedings dictated in open Court no. 6. A list setting out the constitution of the 7 judges bench was posted on the notice board but when Mr. Prashant Bhushan entered the court, to his surprise there was a bench of 5 hand picked junior judges, presided by the Chief Justice, as opposed to the order dated 9^th November 2017, that considering the importance of the issues raised, the matter should be raised before the 5 senior most judges.

The hearing began to a full court where the office bearers of the Supreme Court Bar Association seemed to have been invited to address the court. Mr. P.S. Narasimhan Additional Solicitor General also addressed the court. The hearing was unprecedented since the atmosphere of the court was most unbecoming of the Chief Justice’s Court of the Supreme Court. The proceedings progressed in an atmosphere that was chaotic and like a fish market with sloganeering. The Counsel for the petitioner was neither called upon nor permitted to put forward his case and there was a constant cry for hauling him, along with the others who have taken up this issue, for contempt. Despite several attempts to to make himself heard, at every point, counsel for the petitioner was shouted down and interrupted which ultimately forced him to leave the court.

At the end without hearing counsel for the petitioner, order dated 9^th November 2013 has been rendered void thought the said matter was not before the court. A detailed order has been passed without addressing the issue of conflict of interest raised by the petitioner directing that the Chief Justice of the High Court and the Supreme Court were the master of the Roster, which issue was not challenged or raised by the petitioner at any point of time.

It is unfortunate that even though very uncharitable comments were made against the Bench of the Supreme Court which had passed the order on 9^th November 2017, the same was not commented upon or any attempt made to silence or discourage the members of the bar from making these comments. Today’s proceeding mark a complete fall in the standards of proceedings and advocacy in the Apex Court of the Country.