“Why are you involving Court 2 unnecessarily?”, Arun Mishra J to Prashant Bhushan

The Supreme Court today reserved its order in the petition filed by advocate Kamini Jaiswal seeking an SIT probe into the medical college bribery matter. Senior Advocate Shanti Bhushan, along with Advocate Prashant Bhushan, appeared for the petitioner..The matter was heard from 3.30 pm to 5 pm by a Bench of Justices RK Agrawal, Arun Mishra and AM Khanwilkar..The petitioners refused to argue on the merits of the case, citing the presence of Justice AM Khanwilkar on the Bench, since he was one of the judges who had heard the controversial medical college case..Recusal of Justice AM Khanwilkar.The first major argument put forth by the petitioner was to seek recusal of Justice AM Khanwilkar..Shanti Bhushan began his arguments by citing presence of Justice AM Khanwilkar on the Bench. He sought Justice Khanwilkar’s recusal citing the fact that he had heard the medical college case..“The FIR by CBI says that huge money was collected to influence public functionaries to settle a case which was pending in the Supreme Court. One of the judges, who was hearing that case, is currently on this Bench. Hence, I request Your Lordship to recuse”, submitted Bhushan..Justice Khanwilkar, however, proceeded to hear the matter..On the order of Justice Jasti Chelameswar and Articles 142 and 144.This was one of the most important legal submission advanced by Shanti Bhushan. He began by saying that the order passed by Justice Jasti Chelameswar on November 9 directing that the petition be heard by the first five judges “is an appropriate order”..He then proceeded to cite Article 144 which enjoins all authorities, civil and judicial, to act in aid of the Supreme Court..“Judicial authorities would include all other Benches of the Supreme Court. So, if an order is passed by a Bench, it is binding on all other Benches including the Chief Justice of India who has to act in furtherance of that judicial order”..The crux of Bhushan’s argument was that the Constitution Bench which was constituted by CJI Dipak Misra on Friday ran contrary to the direction issued by Justice Chelameswar and was consequently, illegal..Further, he placed reliance on Article 142..“That CJI alone can constitute a Bench is not part of the Constitution. At best, it could be part of some Supreme Court Rules or convention. Article 142 permits Justice Chelameswar to constitute a Bench”, was Bhushan’s argument..Bhushan said that the matter should be referred to a Constitution Bench to hear and decide on these issues pertaining to Articles 142 and 144..On propriety.The Bench’s first reaction was regarding the intent behind filing this petition when an identical petition had been filed and listed before another Bench. Further, the Bench also pointed out the fact that petitioner Kamini Jaiswal was a member of Campaign for judicial Accountability and Reforms (CJAR), which was the petitioner in the first case..“You are on propriety. A similar petition was filed by CJAR and mentioned and a bench was assigned by the CJI. First petition was filed by CJAR and this one by Kamini Jaiswal, who is a member of CJAR. .That petition was mentioned in court 2 and was listed and an order was passed on the same day. Was it not forum hunting? When a petition with similar grounds, prayers and annexures is filed by a member of the same organisation which had filed the first petition, will it not amount to forum shopping? Why do you want to mention and get it listed the same day”, asked Mishra J..Advocate Prashant Bhushan then chose to respond leading to an exchange with Justice Arun Mishra..“When CJAR’s petition was mentioned in court 2 on Wednesday, an oral order was passed that it would be listed on Friday in the same court i.e court 2. However, I got a call from the Registry that afternoon saying that the CJI has already assigned that matter to another Bench for Friday..This was a case which CJI should not have dealt with on the judicial or administrative side. Your Lordships have held so in many cases”, explained Bhushan..However, Arun Mishra J. was unimpressed..“So you wanted it to be heard by court 2 only? Why are you involving court 2 unnecessarily? Ultimately, it is the same court though we sit in different Benches”, said Mishra J..“If so, then what was the need to interfere in Justice Chelameswar’s order? This matter would have been heard today by a Bench of five senior-most judges”, asked Prashant Bhushan..“The second petition has caused great damage. Everybody is doubting our credibility”, Mishra J. said..“What was the hurry to constitute a Constitution bench on Friday”, asked Prashant Bhushan..“What was the hurry to file a second petition”, was the response of Mishra J..Shanti Bhushan then made it clear that he will not argue on the merits of the matter since Justice Khanwilkar was on the Bench..“As per Article 142, which order is binding on the Registry (Justice Chelameswar’s judicial order or CJI Misra’s administrative order). Decide that first, we don’t want to address (the court) on merits”, said Shanti Bhushan..Withdraw the petition – AG KK Venugopal.Attorney General KK Venugopal argued in his personal capacity. He went on to describe the chain of events as a crisis situation..“So far as this court is concerned, it is facing a crisis. This petition has resulted in driving a wedge between judges and judges and within the Bar.”.He also said that there are many instances when people take money in the name of judges..“Such people keep the money, if the result of the case is favourable. If they lose, then they return the money”, he said hinting that the judge might not even be aware of it..Venugopal also referred to the order passed by the Supreme Court in the medical college case saying that it was not in favour of those who are alleged to have tried to influence the judges..“Can a party be grateful to a judge for an adverse order”, asked the Attorney General..Justice Arun Mishra then proceeded to ask how the damage done to the institution can be undone..“Damage can be undone only by petitioners withdrawing this petition unconditionally”, was Venugopal’s response..No allegation against the CJI in the petition.Prashant Bhushan made it clear that the petition does not make any allegation against the CJI..“The matter was being investigated by the CBI. But since the CBI is under the administrative control of the government, we felt that an independent body should investigate the allegations, so that government cannot use the investigation against the judiciary. Hence the prayer is for an SIT probe…..There is no allegation against the CJI in the petition. The FIR speaks about the case which was being heard by the CJI and of attempt to influence the outcome of the case. Hence, it was felt very sincerely that the CJI should not deal with the matter on the administrative and judicial side”, Bhushan said..The Bench proceeded to ask SCBA President RS Suri if he had anything to say. “I have made all my submissions before the CJI. I have nothing to add except that I am embarrassed at the current state of affairs”, said Suri. .The Court then proceeded to reserve its order..Advocate Kartik Seth, who is assisting the petitioner’s counsel in the matter, confirmed to Bar & Bench that the judgment will be pronounced at 2 pm tomorrow.

“Why are you involving Court 2 unnecessarily?”, Arun Mishra J to Prashant Bhushan

Murali Krishnan

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