A tightly-packed Supreme Court room on Friday, November 10, witnessed a dramatic clash of two titans of the Indian judiciary, when the Chief Justice of India (CJI) Dipak Misra reportedly engaged in a shouting match with Public Interest Lawyer Prashant Bhushan, who later stormed out of the hearing.The events on Friday occurred in relation with another matter which was heard in Court 2 of Justice Chelameswar on Thursday, November 9. The case presented to Justice Chelameswar was in relation to an FIR filed by the CBI in the case of Prasad Institute of Medical Science, Lucknow, which alleged corruption against a retired judge of the Orissa High Court, Justice Quddusi, and other unknown public servants. This petition was filed by Advocate on Record, Kamini Jaiswal, and argued by Senior Advocate Dushyant Dave, who is also the former President of the SC Bar Association.
The FIR invokes Section 8 of the Prevention of Corruption Act (PCA), 1988, which deals with provisions involving “Taking gratification, in order, by corrupt or illegal means, to influence public servant.” In the case of the medical institute, the bench that which was hearing the matter was headed by the Chief Justice Dipak Misra himself.
Justice Chelameswar, the second-most senior judge of the Supreme Court, had referred the case of the medical institute on Thursday, November 9, to be heard by a five-judge bench of the senior-most members of the apex court. He had, however, not expressly excluded the Chief Justice from hearing the case as no provision or precedent exists to do so, despite pleas made on behalf of the petitioner by Dushyant Dave.
“Perhaps implicit in the fact that the CJI was not excluded from the bench constituted by Justice Chelameswar, is the recognition of the fact that it is the CJI who is master of the rolls,” said Nikhil Borwankar, Advocate in the Supreme Court.
The petition by Prashant Bhushan on Friday, November 10, sought an independent investigation into the case of the medical institute, that allegedly involves corruption at the highest levels of judiciary, including Supreme Court judges.
The petition heard on November 10 was filed on behalf of the Campaign for Judicial Accountability and Reform (CJAR), and came about as an urgent hearing of seven judges of the Supreme Court at 3 pm. Prashant Bhushan was informed of the said hearing at 2:45 pm.
While the initial bench to hear the petition by Prashant Bhushan comprised of seven judges in the CJI court, two members of the bench were later removed and the matter was finally heard by a five-judge bench comprising Chief Justice Dipak Misra himself, Justice Arun Mishra, Justice R. K. Agarwal, Justice Amitava Roy and Justice Khanwilkar.
In the course of proceedings, Bhushan enquired from the CJI Bench as to which matter was listed and what was the purpose of the hearing. The Chief Justice requested lawyers who were present in the courtroom to read the orders he had passed in the matter of the medical institute.
According to reports, Bhushan submitted repeatedly that Chief Justice Misra should be excluded from hearing the matter since his name was included in the FIR. The Chief Justice shouted, “What nonsense, my name is nowhere in the FIR. This is contempt of court.” To which Bhushan said “Alright, please issue contempt notice against me.”
Bhushan then stormed out of the courtroom and tweeted about the incident, accusing the Chief Justice of “very serious misconduct” and pointing out a “conflict of interest.” He also said that the CJI has “violated basic principle of natural justice, that you can’t be judge in your own cause.”
Extraordinary proceedings in SC today in the case seeking SIT Investigation in medical college bribery case involving the CJI! CJI presided over a hand picked bench to override yesterday's order referring this case to top 5 judges.This despite having a direct conflict of interest https://t.co/BYCJ3zxr4Y
— Prashant Bhushan (@pbhushan1) November 10, 2017
In another tweet, Bhushan said, “The brazenness with which the CJI has ridden roughshod over this has brought SC to disrepute.”
The Chief Justice of India,for the first time,has violated the most basic norm of any decision-making authority,that no one shall be a judge in his or her own case.The brazenness with which the CJI has ridden roughshod over this has brought SC to disreputehttps://t.co/P3RbNlzaYk
— Prashant Bhushan (@pbhushan1) November 11, 2017
Commenting to Indus Dictum on the clash between the Chief Justice and Prashant Bhushan, Senior Advocate Jana Kalyan Das said, “The entire situation is highly unfortunate. It reflects badly on the judicial system not only in the country but also internationally.”
“Why did the Chief Justice Misra insist on hearing the matter? What was wrong with Justice Chelameswar’s order referring the matter to the five senior-most judges of the Supreme Court? What is the fear and why the panicky haste? And why violate the basic principle of law: Nemo judex in causa sua, that no one should be a judge in his own case? Certainly, today was a black day in the history of the Supreme Court as its institutional credibility took a hit,” wrote Neha Rathi, a lawyer in the Supreme Court, as published in Newslaundry. The bar within itself is debating these issues.
After a 90-minute hearing where Bhushan was reportedly not allowed a fair opportunity to present his case, the five-judge constitution bench ultimately held that the CJI was the “Master of Rolls”, citing a 1998 judgement stating that the Chief Justice of a High Court is the master of roll and that same applied to the top court, adding that he alone can assign cases to different benches and decide composition of benches.
By setting up a second bench of seven judges, the Chief Justice effectively reviewed Justice Chelameswar’s order by exercising judicial and administrative powers. The controversy arose from the alleged conflict of interest, as the CJI was part of the bench that delivered the verdict in the case of the medical institute, and may himself be a subject of the investigation.
This is an ongoing story.
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