Can in Supreme Court, a 2-judge bench refer a matter to particular 5-judge bench without referring it to Chief Justice for constituting an appropriate bench to hear a matter was the point on which a high drama was witnessed by the citizens for couple of days in last week in the apex court.
The order passed by a 2-judge bench on November 9 that the matter be listed and heard by a 5-Judge Constitution bench of first five senior most judges in order of seniority on Monday the November 13th to hear a PIL petition by campaign forum in a pending investigation of Prasad Education Trust by CBI in what is known as medical scam case to be transferred to SIT.
A special constitution bench was constituted on Nov 10th to set at not the controversy. The hearing commenced in the midst of passionate and heated arguments in presence of packed court room by the lawyers. The lawyers for the petitioner after being fully heard, screamed and shouting enacted the theatre of absurdity and walked away the court room. The Chief Justice in anguish observed that petitioner forum and its lawyers are not worth even contempt.
The constitution bench clarified and reiterated the position of law by a unanimous judicial order “that Chief Justice is the master of the roaster” and he alone has the authority to assign cases to the benches and for constituting the benches.
What transpired in the Apex court of the country in the last week was not healthy and does not augur well for nation and especially for the bar and the bench. An attempt was made to demean the majesty and dignity of the Judiciary.
The relevant facts to appreciate the present controversy are; FIR was registered on 19.9.2017 and the 1st PIL was filed by Campaign Forum on 30.10.2017 after 40 days. “Mentioning” is done only in matters which are urgent in nature.
The mentioning in the 1st matter was done on 8.11.2017 before Court No 2 and the matter was directed to be listed on 10.11.2017. A second PIL on identical facts and by same Lawyer was filed.
Was there any need to file second identical petition by a lawyer who is part of the petitioner forum that filed the 1st PIL on 9.11.2017? Even if the 2nd petition was filed, it would have been appropriate to tag the 2nd PIL matter with the 1st PIL and both should have been heard on the 10.11.2017 by the same bench which was already constituted to hear the 1st matter.
The test to determine whether an advocate or a litigant has indulged in forum shopping is clear as laid down in Union of India v. Cipla Ltd., it needs to be determined “whether there is a functional similarity in the proceedings between one court and another” and “whether there is some sort of subterfuge on the part of a litigant” or lawyer.
In the instant case there is both, because the 2nd PIL is not only functionally similar to the 1st petition but is identical and by mentioning the 2nd PIL again, when the 1st PIL was listed the following day, there is subterfuge on part of the litigant.
This conduct of the advocates concern amounts to forum shopping which is against professional ethics of advocacy observed the bench. In D.C. Saxena vs Hon’ble The Chief Justice of India,the Supreme Court has held: “26. When imputations were made against the Chief Justice, the petitioner assumed, in our view, “wrongly” that the CJI cannot constitute benches nor should he discharge the functions of Chief Justice until the matter is decided. On appointment by the President by a warrant and on his taking oath of office, the CJI becomes entitled to discharge the functions and duties of that office including constitution of benches and assignment of judicial work to judges as per procedure. This responsibility flows from the office and none including a litigant has right to demand for contra-position. As regards his personal disposition to hear a case by a bench of which he is a member, it is his own personal volition. The Chief Justice’s prerogative to constitute benches and assignment of judicial business would not hinge on the whim of a litigant.”
Therefore since the FIR didn’t name any judge of the Supreme Court of India and couldn’t have in the light of the Veeraswamy judgment this entire controversy was completely avoidable.
Had the 2nd PIL, which was an abuse of the process of law and is also an instance of forum shopping, not been filed, the 1st PIL would have been heard by a bench consisting of 2 or 3 Judges on merits. They would have decided the issue on merits as to whether an SIT probe, as prayed for was warranted or not.
Subsequently, the 2nd PIL has been heard on merits and the Petitioner was given an adequate opportunity to argue his case. The bench that heard the matter was a 3-judge bench and the Chief Justice of India was not part of this bench. Judgment has delivered and some observations of the Bench are:
Having decided that the actions of the advocates amount to contempt of Court and has scandalized the Supreme Court, the bench has exercised restraint, kindness and dignity by deciding not to draw contempt proceedings against the petitioner and the Lawyers.
Notwithstanding in another case where a young lawyer had purportedly made some allegations against the Registry of the Supreme Court, the Supreme Court had held that the allegations amount to contempt of court and barred the lawyer from practicing as an Advocate on Record for a period of one month.
The Supreme Court of India has suffered a setback but the citizens of this country are aware that this great institution has the resilience and intellectual strength to upkeep the majesty and dignity of the institution, in conformity with the trust, confidence and the faith of the people of this country in this great institution.
Author is a senior advocate of Supreme Court of India.