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NEW DELHI: Allegations about a judge-middleman nexus favouring medical colleges to admit students appeared to split the Supreme Court as well as the bar on Friday, with a five-judge Constitution Bench led by Chief Justice Dipak Misra annulling Thursday’s order of a two-judge bench led by Justice J Chelameswar referring the matter to the first five senior SC judges.
The Constitution Bench termed the CJI the “master of the roster” and emphasised that no judge other than the CJI could list petitions before self or refer petitions to a bench or determine the number of judges on it. It said the order passed by Justices Chelameswar, the senior-most judge after the CJI, and S Abdul Nazir was an illegality.
The bench, comprising CJI Misra and Justices R K Agrawal, Arun Mishra, Amitava Roy and A M Khanwilkar, said, “As far as the roster… the CJI is the master of allocation of work as well as deciding the composition and number of judges on a bench. We make it clear without any hesitation that this is followed as a convention to maintain judicial discipline and decorum.”
It added, “Once the CJI is recognised as the master of the roster, neither a two-judge bench nor a three-judge bench can allot a matter to itself or order constitution of a larger bench as if it is a direction to the CJI. Such an order cannot be passed. It is not in accordance with law and is irresponsible. An institution has to function within certain parameters and that is why there are rules. There cannot be a direction to the CJI to constitute a particular bench.”
Making it amply clear that the order of Justices Chelameswar and Nazir was null and void, the five-judge bench stressed, “If any such order is passed by any bench, that should not hold the field as this will be counter to the order of the decision of this Constitution Bench of the SC. Needless to say, no judge can take up matters on his own without it being referred to the CJI.”
The five-judge bench said the two petitions alleging a judge-middlemen nexus would be listed before an appropriate bench. Both petitions were based on common information — a CBI FIR that led to the arrest of a retired Orissa HC judge and several others in connection with a conspiracy to obtain favourable orders for private medical colleges from constitutional courts by offering illegal gratification to public servants and judges — and sought identical relief in setting up of an SIT to probe this under the supervision of a retired CJI.
Justices Chelameswar and Nazir had acceded on Wednesday to advocate Prashant Bhushan’s request and ordered listing of a petition by Campaign for Judicial Accountability and Reforms (CJAR), which had alleged that the CBI FIR relating to admissions to a Lucknow-based private medical college had detailed how a judge-middleman nexus was being used to obtain orders favouring medical colleges debarred from admitting students.
The CJI had ordered listing of this petition on Friday before a bench of Justices A K Sikri and Ashok Bhushan.
However, on Thursday, senior advocate Dushyant Dave mentioned a petition by advocate Kamini Jaiswal, identical to CJAR’s plea, for urgent hearing before a bench headed by Justice Chelameswar. Dave’s persistent plea that the petition must be heard by Justice Chelameswar’s bench, and not by the CJI as the latter had been hearing medical college cases, bore fruit with Justice Chelameswar’s bench agreeing to hear the matter. It ordered the petition to be listed before a bench comprising the first five senior judges on Monday.
On Friday, the bench of Justices Sikri and Bhushan referred the CJAR petition to the CJI for listing before an appropriate bench. The CJI seized this opportunity and the registry took out a notification at 2.42 pm saying the matter would be heard by a seven-judge bench at 3 pm.
However, at 2.52 pm, another notification said the CJAR petition would be heard by a five-judge bench at 3 pm.
Word spread rapidly and the CJI’s courtroom was packed with lawyers anxious to witness the unfolding events. Bhushan and Kamini Jaiswal were swamped by a sea of lawyers who demanded contempt of court action against them for making wild allegations moments after Bhushan said the CBI FIR in the medical scam mentioned the CJI’s name.
The five-judge bench repeatedly questioned Bhushan as to how a lawyer of his standing could make such an irresponsible statement. “Can an FIR be registered against a magistrate, a district judge, an HC judge, an SC judge or the CJI? There is a procedure. You must withdraw this irresponsible statement. What will happen if the judiciary is put at the mercy of a sub-inspector who can register an FIR?” it asked.
Bhushan wanted to explain and repeatedly requested the bench to hear him out. But the bench questioned him and his arguments incessantly.
Simultaneously, Supreme Court Bar Association leaders Rupinder Singh Suri, Gaurav Bhatia, Ashok Bhan, R P Bhat and others kept insisting on initiation of contempt proceedings against Bhushan. Additional solicitor general P S Narasimha said it was a settled principle that the CJI was the master of the roster and he alone had the power to order listing of cases before a bench.
Tired of keeping cool in trying circumstances, Bhushan raised his voice an hour after the hearing commenced and said, “You (the bench) want to pass orders without hearing me. Go ahead and pass any order you want.” This invited a din of protest from the other side and Bhushan stormed out of the courtroom.