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Background

A few months ago, an FIR was filed with respect to a case relating to a medical college. It was alleged that the bench dealing with the matter was being bribed for manipulating the decision. The FIR invoked Section 8 of the Prevention of Corruption Act (PCA), 1988, which section deals with provisions against “Taking gratification, in order, by corrupt or illegal means, to influence a public servant”. Subsequently, CBI started to investigate the matter, and the case of taking gratifications was to be heard by the Supreme Court. The bench deciding this case included CJI Dipak Misra, or, so to speak, was headed by him.

Justice Chelameswar, who is the second in terms of seniority in the Supreme Court, had referred and recommended that the case is heard by a five-judge Bench comprising of the senior-most members of the Apex court. However, the loophole was that he did not expressly exclude the CJI from hearing this case, despite a lot of pleas on behalf of Dushyant Dave, Senior Advocate, and Petitioner in the given case. In a statement given by Nikhil Borwankar, Advocate in the Supreme Court, “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.”

The Constitution of the Bench

There was a petition made by Mr. Prashant Bhushan on November 10 asking for an independent investigation in this case of the medical institution, allegedly involving corruption in the Supreme Court, the Apex court of justice in India.

The case filed on behalf of the Campaign for Judicial Accountability and Reform (CJAR) came up as a matter of urgent hearing by a seven-judge bench of the SC, two of whom were later removed. Henceforth, the bench comprised of only five judges (a Constitution Bench), comprised of CJI Dipak Misra, and Justices Arun Mishra, R.K. Agarwal, Amitava Roy and Khanwilkar.

The whole controversy arose when Justice Misra took charge of the case, there is a clear conflict of interest, as the CJI was indeed the head of the bench which delivered the verdict in the case of the medical institute, and could be subject to the investigation himself.

What went wrong on the day of hearing

On November 10, 2017, the altercation between Justice Deepak Misra, the current Chief Justice of India, and Mr. Prashant Bhushan, a Public Interest lawyer, led to an intense clash between two of the mightiest of Indian Judiciary.

It is relevant to note here that the altercation was a result of another matter heard in Justice Chelameshwar’s courtroom the previous day. The case presented before Justice Chelameshwar was regarding an FIR filed by the CBI against Justice Quddusi, a retired judge of the Orissa High Court, and others, on charges of corruption in the case of Prasad Institute of Medical Science, Lucknow. The petition for this case was filed by Kamini Jaiswal, Advocate-on-Record, and was argued by Senior Advocate Dushyant Dave, who has also been the President of the Supreme Court Bar Association.

It is claimed that Mr. Bhushan was not provided with a fair opportunity to present his case before the five-judge Constitutional Bench. By citing a judgment of 1998, it was ultimately held by the bench that the CJI is the “Master of Rolls”. According to that judgment, the Chief Justice of a High Court is the Master of Rolls, and hence the same principle shall be applicable to the Supreme Court as well. The CJI also stated that the power to assign cases to different benches and to decide the composition of benches rests solely with him.

The argument between the two arose when Mr. Bhushan insisted that the CJI be barred from hearing the matter since he was a party in the case and had his name included in the FIR. On this, the Chief Justice threatened Mr. Bhushan to charge him with contempt of court, to which Mr. Bhushan reciprocated by welcoming the notice against him, and stormed out of the courtroom.

In furtherance, Mr. Bhushan also shared his views on a social media platform and accused the CJI of ‘very serious misconduct’, indicating a ‘conflict of interest’ in the current cases against him. He primarily stressed the fact that this hindrance violated the very basic principle of natural justice which states that “no man shall be a judge in his own cause.”

Opinion of the People directly involved in the Case

“He [Mr. Bhushan] was not allowed to make his submissions while all and sundry in this courtroom were given a chance,” Advocate Kamini Jaiswal told the Bench.

“You are the lords and masters of the country. You can pass any orders.” – Senior Advocate Prashant Bhushan yelled at the five-judge Bench led by Dipak Misra, the Chief Justice of India.

The court proceedings were extraordinary in that the CJI was asking all kinds of lawyers who were not parties to say things against the order of Court 2, w/o hearing petitioner. He tried to justify his role in the medical college case & speak against ‘impropriety’ of Court 2- Mr. Bhushan tweeted.

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- Mr. Bhushan tweeted.

Commenting on the clash, 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.”

In another tweet, Mr. Bhushan said, “The brazenness with which the CJI has ridden roughshod over this has brought SC to disrepute.”

Conclusion

If Mr. Bhushan can be attacked inside the Supreme Court of India by fellow advocates, we can only say mobocracy has stormed even the SC. Earlier such ugly scenes were witnessed in District courts. Why wasn’t he allowed to speak? If the counsel- senior, or junior, isn’t allowed to speak, who should? Let’s then go to Audi alteram partem, since nobody is allowed to speak. How can CJI hear a matter where he is a party? It defeats the Principles of Natural justice which are recognized basic laws all over the world.

The very basic norm of any decision that nobody can be a judge in his own case was evidently violated by the CJI. The crisis regarding this politics and bribery comes from an authority responsible for deciding and penalizing others doing such acts. The CJI definitely has the power to decide who is to hear a case but what can at least be expected of that power is that it’s exercised fairly, especially when there is such an obvious and evident conflict of interest.

“Why did 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, an Advocate in the Supreme Court, as published in Newslaundry. The bar within itself is debating these issues.

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