‘No.2 Court Had The Authority Under Article 142 To Refer The Bribery Matter To The Constitution Bench’: Shanti Bhushan
Senior Counsel, Shanti Bhushan, representing Kamini Jaiswal, today submitted before the three-judge bench constituted to hear her petition seeking independent probe into the attempt to bribe Supreme Court Judges in a...
Senior Counsel, Shanti Bhushan, representing Kamini Jaiswal, today submitted before the three-judge bench constituted to hear her petition seeking independent probe into the attempt to bribe Supreme Court Judges in a pending case, that Supreme Court Judges are not bound by the Supreme Court rules and Article 142 permitted them to do complete justice and they can direct anything except something contrary to the Constitution.
Relying on A.R.Antulay and Bhopal disaster cases, Shanti Bhushan argued that under Article 144, all authorities, civil and judicial, in the territory of India, mentioned in the provision, also included every bench of the Supreme Court, and their orders are binding on all civil authorities including the Chief Justice of India. It was his contention that the hurriedly-formed five judge Constitution bench on November 10, violated Article 144 of the Constitution, by annulling the order of Justices J.Chelameswar and S.Abdul Nazeer, to refer Kamini Jaiswal’s petition to be heard by the first five Judges of the Supreme Court, according to seniority, on Monday.
Justice Arun Mishra, who was part of the three-judge bench also comprising Justices R.K.Agrawal and A.M.Khanwilkar, told Shanti Bhushan that they were on the issue of propriety, and asked why Kamini Jaiswal’s petition was mentioned before Court No.2 on November 9, when it was known that a similar petition earlier filed by Campaign for Judicial Accountability and Reforms (CJAR) had already been listed before Justices A.K.Sikri and Ashok Bhushan, for Friday, November 10. We are on maintainability of this petition, Justice Mishra said, adding it amounts to forum-shopping.
Shanti Bhushan also explained that Justice Khanwilkar, who had heard along with the CJI and Justice D.Y. Chandrachud, the case filed by Prasad Education Trust, allegedly sought to be influenced by bribery, must recuse from hearing the petition. His plea was, however, rejected by the bench.
Prashant Bhushan’s contentions
Prashant Bhushan, while answering Justice Mishra’s questions, explained that Justice Chelameswar, in his oral order, on November 8, had directed that the CJAR’s petition be listed before Court No.2. However, Prashant Bhushan came to know from the Registrar that the case has been listed before Court No.6, before justices Sikri and Ashok Bhushan on November 10, as per the directions of the CJI.
At this point, it was decided to mention Kamini Jaiswal’s petition before Court No.2 on November 9, as it was felt that the CJI could not hear the matter on judicial side or decide which bench should hear it.
Justice Misra asked Prashant Bhushan whether he, rather than the CJI, should be exercising the discretion as to which bench should hear it .
Prashant Bhushan replied that Court No.2 was exercising this authority, not him.
Prashant Bhushan posed a counter question to the bench as to what forced the Constitution bench to interfere with Justice Chelameswar’s order of reference to first five senior-most Judges, on November 10.
When Justice Misra quizzed Prashant Bhushan whether the first five Judges would also include the CJI, he said in his view, the CJI would recuse, and the sixth senior-most Judge would fill in the vacancy.
Justice Misra then said that the constitution bench had to be formed at a short notice, because there was no time left between Friday and Monday, when the bench of first five Judges, directed to hear the petition by Court No.2 was to be formed. But in the whole country, Supreme Court’s image suffered a dent because of a wrong impression, Justice Misra hinted.
Prashant Bhushan asked the bench what would have happened if the first five Judges had met. “Why was the tearing hurry to overturn the order passed by Court No.2”, he asked the bench.
In response, Justice Misra asked what was the tearing hurry to file the second petition on November 9, when it was not maintainable.
Shanti Bhushan reiterated his view that the constitution bench’s order on November 10 was without jurisdiction. Therefore, he told the bench that his prayer is to issue a directive to the Registry to comply with the order passed by Court No.2, on November 9, by listing the case before the first five Judges of the Court. Otherwise, he said, it would appear that “this bench has no confidence in the five senior-most Judges of the Supreme Court”.
AG’s Intervention
Attorney General, K.K.Venugopal, then began his submissions saying that he was doing so under Article 76(3) of the Constitution, which enables him to intervene in any case before any court in the country. “I am here to give a different picture, as the Court is facing a crisis”, he said.
The AG submitted that Jaiswal’s petition resulted in creating a wedge between members of the Bar, and as a result, there is a crisis of the Court. “The writ petition was brought in haste, and wanted the investigation into the bribery to proceed in a particular direction, with a particular result in view.”
Justice Misra asked where we are going, and how could there be an aspersion against the Chief Justice of India. The AG agreed with him just because a broker claimed that he would fix a case, and he hailed from Orissa, to which the CJI also belongs, an inference was drawn by the petitioner, that the needle of suspicion was against him.
When Justice Misra asked the AG to explain the meaning when the petitioner told the bench that it could give whatever order it could, and leave the court, the AG said perhaps the petitioner had no arguments.
Going through the trajectory of the case, the AG said it appears that the bribery was attempted to secure an adverse order, as the outcome of the petition filed by Prasad Education Trust in the Apex Court went against it.
“A deep wound has been caused to the Supreme Court; it would take very long time to heal it”, the AG said.
Justice Misra added that the damage has been done.
The AG said that Jaiswal’s petition should not have been filed, and the five judges bench’s decision has become suspect in the eyes of the people. “We have to build the bar together. The damage caused can be repaired if the petitioner withdraws her petition unconditionally”, the AG said.
The Additional Solicitor General, Tushar Mehta, in his submission, said it is clear that there was deliberate suppression of the first petition by the second petition, filed by Jaiswal.
Prashant Bhushan’s Response
In his response, Prashant Bhushan, explained that the FIR filed in the case did say that a conspiracy was hatched to bribe and influence a judgment pending in the Court. “Investigation may also go into the role and conduct of judges who dealt with this case. As the CBI is under the Government, such a sensitive investigation cannot be left in the hands of the government-controlled agency”, he said, justifying the prayer that investigation must be by a Special Investigation Team, headed by a former CJI.
Prashant Bhushan also said that since this is an important and sensitive matter, it should be dealt by senior-most five judges of the Court. The
nullification of the November 9 order passed by Court No.2 was only implied in the November 10 order of the Constitution bench, he suggested.
“You are aggravating the situation”, Justice Misra told Prashant Bhushan. Prashant Bhushan claimed that the petition does not make any allegation against the CJI. “All that the petition says is that it may eventually involve the CJI. We hope and believe the CJI will not be involved”, he said.
Referring to the averment of the senior counsel, Prashant Bhushan said that the FIR casts a cloud, and since the allegation pertains to a case heard by a bench of the CJI, propriety demanded that he should not take judicial or administrative decisions in the case.