Listing Of Chhattisgarh NAN Scam Matter Before Justice MR Shah's Bench Attracts Controversy

The listing of the petitions filed by the Enforcement Directorate(ED) in relation to the Nagrik Apurti Nigam (NAN) scam in Chhattisgarh has attracted a controversy, with the Chhattisgarh Government taking objection to the bench led by Justice MR Shah hearing it.

The matter was being heard by a bench comprising the previous Chief Justice of India UU Lalit, Justice Ajay Rastogi and Justice S Ravindra Bhat. The previous hearings in the case had created news after the ED made a serious allegation that the accused in the case were in touch with the Chief Minister and a High Court judge. Solicitor General of India Tushar Mehta had also handed over certain sealed cover documents to the bench led by CJI Lalit to corroborate the allegations. On October 20, the said bench could not hear the matter due to the paucity of time and directed for the listing of the matter on November 14 before the "appropriate bench".

On November 14, the matter was listed before a bench comprising Justices MR Shah and Hima Kohli. Senior Advocate Kapil Sibal, appearing for the State of Chattisgarh, raised an objection that the matter should be heard by benches led by either Justices Rastogi or Justice Bhat, who are the remaining members of the previous bench after the retirement of CJI Lalit. The matter was then adjourned to November 21.

In this backdrop, the matter was listed before the Chief Justice of India today by the Solicitor General. CJI Chandrachud then said, "The Registrar J1 says that I have already passed orders orders yesterday assigning the matter to the bench presided over by Justice Ajay Rastogi". If the matter is to be assigned to a combination of Justices Rastogi and Bhat, then two benches will have to be broken, as both of them are heading separate benches, the CJI added.

"I just followed an objective criteria, to assign to the next senior most judge available", CJI stated.

At this juncture, SG said that he wanted to say something. "First of all, I cannot choose a bench, I cannot avoid a bench. I am saying this with a degree of seriousness".

"You know Mr.Solicitor, I could have taken this up, since Chief Justice Lalit was taking it up. But if I take it up, three benches will be broken, my bench, Justice Rastogi's bench and Justice Bhat's bench. So because of these practical issues, I said the second most senior judge available will take it up", CJI said.

"At the outset, I cannot select a bench or avoid a bench. Whatever your lordships have read, prima facie, something was told to the bench...", SG said.

The CJI then replied that he has not read the files and has only seen orders. "No, I just saw the orders. There was absolutely no time to read the files", CJI said.

SG then gave a brief background : "The learned judges said we have not gone into the sealed covers and asked me to point out. When I pointed out, the learned judges put to me how much time will be needed for arguments and I said substantial time needed. The earlier Chief Justice had no time and it was de-listed. So it was listed, possibly after marking, before Court No. 5(bench led by Justice Shah). There a request was made(by respondents) that you should not hear and it should go before the earlier bench. That is not only avoiding the bench but also choosing the bench".

Hearing the SG's statement that the previous CJI might have marked the matter to Court no.5, CJI Chandrachud said : "One second, if it was listed by the former Chief Justice before Court No.5, let me check", CJI stated. "What I will do is this, I will ask the Registrar to check up if there is any order", he added.

Sibal then interjected to say that the order only says "Registry is directed to list the matter before the appropriate bench". CJI said he will ask the Registrar to check if there was any direction by the former Chief Justice to mark the matter to Court No.5. "If there is none, my order will stand", he said.

Solicitor General then said : "Please allow me to say. I have only this forum and no other forum. Even if it does not go in Court 5, I have absolutely no difficulty. My worry is on a larger scale. This is happening too frequently. One order in a political matter not to your liking, you gather NGOs and malign the entire institution that you have no trust in it. One wrong order, articles are written. This is a part of that."

CJI then intervened, "You know Mr.Solicitor, one of the practices of this Court, one good practice, is that when a senior judge retires, the matter goes to the next available senior judge of the bench".

"I have absolutely no issue. I started by saying, I can't choose a bench or avoid a bench", SG replied.

"Now as heading the administration, I try and be as objective as possible by applying a golden yardstick that when the presiding judge retires, matter goes to the next judge and if that judge refuses saying he has no time, it goes to another bench", CJI clarified.

"Some bench will be maligned", SG said. This invited a sharp retort from Sibal who said, "Justice Hima Kohli was in that bench. Did we malign? We just said hold it over".

"Mr.Sibal, I just wanted to check if my l predecessor made any specific assignment to any bench", CJI said. "It could not have been, Justice Shah did not have a criminal roster", Sibal stated.

SG suggested that the matter may be taken up by the combination of CJI, Justice Ajay Rastogi and Justice SR Bhat. "We have no problem with any bench", Sibal said.

"One order of not someone's liking and the entire institution is maligned", SG repeated. "Very very unfair", Senior Advocate Mukul Rohatgi, appearing for respondents, took objection.

"It goes to the second or third bench, and if nobody is available, it goes elsewhere", Rohatgi said.  

As the exchanges were getting heated up, CJI tried to ease the pressure by saying "All of you have a lot of fresh matters to do".

After sometime, the SG again 'mentioned the matter by saying "One way out can be that the bench be of my lord the Chief Justice, Justice Rastogi and Justice Bhat. I cannot choose or avoid any bench. That's not within my domain".

CASE TITLE: ED v. Anil Tuteja And Ors. SLP(Crl) No. 6323-24/2020