SC events betray power struggle

The quick turn of events in the Supreme Court last week has betrayed what seems to be an internal tussle in the 'temple of justice'. It was surely not the first time and perhaps will not be the last when the judges of the apex court, particularly the Chief Justice of India (CJI), faced such a situation. A direct charge - maybe unfounded - made on the inte grity of judges and the alacrity with which it was sought to be examined has added fuel to the fire.

It all started with the filing last month of a writ petition by NGO Campaign for Judicial Accountability and Reforms. Senior advocate Dushyant Dave on November 8 pressed the petition for hearing before a bench of Justices J Chelameswar and S Abdul Nazeer of court number 2. He wanted the plea to be examined by court no. 2 as the CJI, according to him, disabled him from considering it, either judicially or administratively, since the matter pertained to a CBI FIR, talking about securing a favourable order with regard to a medical college in Uttar Pradesh from the CJI's court.

A former Orissa HC judge had already been arrested in the matter. Court no. 2 understood the importance of the matter and agreed to grant urgent hearing. However, the petition was put up for consideration before "an appropriate bench" on November 10.

Perhaps in desperation and fearing the obvious, "the same set of lawyers" on November 9 convinced court no. 2 to grant an urgent hearing on an identical petition, demanding a court-monitored SIT probe, headed by a former CJI, into the CBI FIR. They were successful to the extent that the court directed for an examination of the matter by a Constitution bench of the 'first five judges in the order of seniority' on November 13.

In between, on November 9, the CJI, sitting in a five-judge combination to hear the Delhi versus Lieutenant Governor case, took a break one hour before lunch. A note issued on November 6 was sent to court no. 2 in the midst of the hearing, stating that a same-day listing on mentioning any matter could be granted at 3 pm before the CJI when he is presiding over a Constitution bench. Court no. 2, for its part, went ahead and passed its order, signifying an unprecedented power tussle.

The previous petition came up for hearing before a two-judge bench in court no. 6 on November 10. While the bench agreed that the charges were serious and had to be examined, it expressed pain over the need for the petitioner to file another plea. The court said it was a reflection on the bench.

Taking note that a similar petition had earlier been referred to the Constitution bench, court no. 6 ordered that the NGO's petition be put before the CJI. The petitioners, for their part, remained under the impression that their plea had been tagged and would be put up before the Constitution bench on November 13.

Courtroom drama

On a day of twists and turns, hectic activity started in the CJI's court in the afternoon. A notice was put up on the board that a seven-judge bench would assemble to consider the NGO's petition at 3 pm. Minutes later, the notice was replaced with another, declaring that a five-judge bench would hear the petition.

The "unprecedented" proceedings that followed witnessed much drama, shouting and jostling between two groups of lawyers. The five-judge bench, presided over by the CJI, declared that the order passed by the two-judge bench on Thursday could not be countenanced in law.

Further, the bench asserted that the CJI is the master of roster, a two or three-judge bench cannot decide on setting up a Constitution bench. This principle that the CJI alone can constitute a bench is followed for the sake of judicial discipline and decorum.

Otherwise, there would be confusion, it was held. The bench also said that no judge can take up any matter on his own unless assigned by the Chief Justice of a High Court or the CJI. The CJI described the charges against him as "factually incorrect." The bench also maintained that no judge can be investigated without sanction and, in fact, no CBI probe was going on against any judge of the top court.

With this, the order passed by the two-judge bench was declared a nullity. But the unsavoury controversy does not seem to end. On Friday, another circular was issued stating that henceforth, mentioning a matter for listing would be allowed before the CJI's court at 10.30 am. The NGO's petition has been put up for consideration after two weeks. The second petition, however, would come up for hearing on Monday before a three-judge bench.

The bigger question still remains, however, whether the CJI could have exercised his judicial and administrative power in a matter concerning his own self. Do these events help in any manner in fortifying public faith in the institution of the Supreme Court? Could it have undermined the dignity of the CJI's office if the matter was allowed to be settled by brother judges?

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