The Supreme Court on Friday axed an order passed by a bench headed by Justice J. Chelameswar to set up a constitution bench to hear a plea for a SIT probe into graft allegation involving a retired Orissa High Court judge, amidst high drama involving noted lawyer Prashant Bhushan, Chief Justice Dipak Misra and fellow lawyers.
A five-judge constitution bench of Chief Justice Misra, Justice R.K. Agrawal, Justice Arun Mishra, Justice Amitava Roy and Justice A.M. Khanwilkar said that the CJI was the "Master of Rolls" and he alone can assign cases to different benches and decide composition of benches.
After a 90-minute hearing, the bench cited its 1998 judgement that held that the Chief Justice of a High Court was the master of roll and said that same applied to the top court, adding that there can be no doubt that the CJI is the first amongst the equals, and definitely exercises certain administrative powers.
Referring to convention and top court rules in this respect, the order said that any order passed contrary to this will be "ineffective in law and shall not be binding on the CJI".
It also said that unless the position about the CJI's powers "is clearly stated, there will be utter confusion" and affect the court's smooth functioning.
"..., there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible."
Earlier, complaining that he was not being allowed to speak, an emotional Prashant Bhushan told the bench it can do whatever it wanted, as fellow lawyers heckled him while he was leaving.
The hearing that started with Additional Solicitor General P.S. Narasimha addressing the bench first, saw senior lawyers including SCBA president Rupinder Singh Suri, its secretary Gaurav Bhatia, senior counsel Ajit Sinha, Ashok Bhan, Supreme Court Advocate on Record president Gopal Singh, and other lawyers training their guns at Bhushan for raking up cases hurting the credibility of the Supreme Court as an institution.
However, an unrelenting Bhushan reiterated the plea that Chief Justice Misra should not be part of the bench hearing pleas seeking an SIT probe into the role of a retired Orissa High Court judge and pointed fingers at the CJI.
As Bhushan lost his cool in the initial stages of the hearing and levelled allegations against the CJI, Justice Arun Mishra told him that his "conduct was not proper".
"No condemnation in the court. We are not here for this," Justice Mishra said as some lawyers sought to condemn the conduct of Bhushan.
As some lawyers wanted the bench to haul up Bhushan for contempt, CJI Misra said: "He is not worth contempt." However, he remarked that "the court can't function like this".
The Chief Justice also rejected the suggestion that media be restrained from reporting the proceedings and that it be held in-camera.
"I am not going to pass any order to restrain media. I hold the freedom of speech and expression in the highest regard," he said.
Friday's order came a day after the two-judge bench headed by Justice Chelameswar, the senior-most judge after the Chief Justice, ordered the setting up of a five-judge constitution bench to hear on Monday a corruption case involving former Orissa High Court judge, I.M. Quddusi.
Quddusi, who was the High Court judge between 2004 and 2010, is alleged to have helped a private medical college to admit students to MBBS courses despite the Supreme Court barring the institutes from doing so.
The judge was arrested in September and is lodged in Tihar Jail here after CBI accused him of guiding the private medical college and assuring its management of favourable settlement of their cases in the Supreme Court.
A petition filed by Supreme Court advocate Kamini Jaiswal on Thursday sought an investigation into the case by a court-monitored Special Investigation Team. The petition was taken up for hearing by the bench headed by Justice Chelameswar.
Jaiswal's petition was filed even as a plea by the NGO Campaign for Judicial Accountability and Reforms seeking a similar probe in the case was already listed before the bench headed by Justice A.K. Sikri.
The five-judge bench on Friday said the two petitions will be heard by an appropriate bench after two weeks and there will be no more hearing in the case till then.
Earlier in the day, the bench of Justice Sikri and Justice Ashok Bhushan took exception to the manner in which the second petition by Jaiswal was filed, and was heard by the bench headed by Justice Chelameswar, asking Bhushan as to what was the urgency.
Making it clear that they were not underestimating the seriousness of the matter, the court in its order said let the appropriate order be passed to tag the petition with the one by Jaiswal, which was referred to a five-judges constitution bench on Thursday by the bench of Justice Chelameswar and Justice S. Abdul Nazeer.
Pleading ignorance about the second petition, Bhushan said that since the allegations were in respect of the matter heard by the bench headed by Chief Justice Misra, he should not have exercised his administrative and judicial authority.
Referring to the FIR filed by the CBI in the matter, Bhushan said, "Whole conspiracy was to bribe the bench hearing the (medical college) matter". At this, Justice Sikri said that whether the Chief Justice should have dealt with the matter or stayed away should have been left to him.
Expressing its displeasure, the court on Friday allowed the Supreme Court Bar Association to implead itself in the matter before the five-judges bench.