New Delhi: Last week, senior advocate Dushyant Dave raised an objection over one of his cases being listed “wrongly” before a bench of the Supreme Court (SC).
He said it was “wrong” that matters earlier listed before a bench comprising justices Aniruddha Bose and Bela M. Trivedi were being listed before a new bench now — comprising justices Trivedi and Satish Chandra Sharma instead.
The court was hearing a petition filed by the Tamil Nadu director of vigilance and corruption challenging a Madras High Court order. The order had ruled out a fresh inquiry ordered by the state government against former chief minister Edappadi K. Palaniswami in connection with an alleged highway tender scam.
During the last three hearings, the case had been listed before a bench comprising justices Bose and Trivedi. However, on 29 November, the case was suddenly listed before the new bench.
The SC had made the assignment of cases and the roster for judges public in an unprecedented move in February 2018. Over the past month, however, the court has seen controversy arise several times over the listing of cases.
On Tuesday, the petitions challenging the central government’s delay in judges’ appointments were not listed in the SC despite a direction by the court to list it on 5 December in its previous order passed on 20 November. The case was also initially shown on the causelist for Tuesday, but was later deleted.
Advocate Prashant Bhushan, appearing for one of the petitioners in the judges’ appointments case, pointed this out before the bench comprising justices Sanjay Kishan Kaul and Sudhanshu Dhulia, and asserted that it was “strange” that it was deleted.
In response, Justice Kaul clarified that he had neither deleted the matter nor expressed any unwillingness to take it up. When Bhushan suggested that the judge should seek an explanation from the registry, Justice Kaul responded: “I am sure the Chief Justice (D.Y. Chandrachud) is aware of it”.
When Bhushan commented that such a deletion was “very unusual”, Justice Kaul responded: “Some things are best left unsaid”.
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‘Accepted and healthy practice’
After Dave’s objections, the lawyers in the Palaniswami case filed an application before the registrar (listing) of the SC, pointing out the registry’s “omission”. The application cited the court’s Handbook on Practice and Procedure and Office Procedure.
Among other things, the rules say: “If first coram is not available on a particular day on account of retirement, the case shall be listed before the judge constituting the second coram. If second coram is also not available, the case shall not be listed on that day.”
In simple words, the rule means that if the senior judge on the bench retires, only then will the case be listed before the junior judge.
The application also said that the “accepted and healthy practice” followed by the apex court for decades would also require that the matter be listed before the bench presided over by only the senior judge only, and said that “it would not be proper to be listed before the other ld. judge when the senior judge is available”.
“Sir, the healthy traditions of this court and the direction of the Hon’ble Chief Justice of India ought to be respected in letter and spirit,” the application said.
‘We have the matters now’
Similar concerns were raised during the hearing of the bail application filed by former Jawaharlal Nehru University (JNU) student Umar Khalid in the Delhi riots ‘larger conspiracy’ case, as well as petitions challenging provisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA).
On 20 October this year, the bench of justices Bose and Trivedi ordered Khalid’s petition to be tagged with the petition to quash FIRs against 102 people — of whom four were arrested — filed under the UAPA for criticising the handling of the 2021 communal violence in Tripura. The petition also challenges provisions of the UAPA, including its bail provisions.
The latter petition was filed in 2021 and was first listed before a three-judge bench headed by then Chief Justice N.V. Ramana, and was subsequently listed before a bench headed by Chief Justice Chandrachud.
Another petition challenging UAPA provisions filed by the Foundation of Media Professionals was listed before a three-judge bench led by Chief Justice Chandrachud before being tagged with the Tripura petition.
Khalid’s petition and the Tripura petition, along with a few others, were then listed before justices Bose and Trivedi on 31 October. However, subsequently, on 29 November, the entire batch of petitions was listed before a bench comprising Justice Trivedi and Justice Satish Chandra Sharma.
Senior advocate Arvind Datar, appearing for Foundation of Media Professionals, then submitted that since a three-judge bench was hearing the challenge to bail provisions under the Prevention of Money Laundering Act (PMLA), the petitions challenging UAPA’s bail provision should also be heard by a three-judge bench, since the two provisions are similar.
During the hearing last week, Bhushan, appearing for the petitioner in the Tripura case, pointed out, as reported by Live Law, that the matter was earlier being listed before a bench led by Chief Justice Chandrachud but was tagged with Khalid’s bail application.
He then suggested that the matters be placed before the Chief Justice’s bench. However, in response, Justice Trivedi shot back, saying: “Why should we? We have the matters now before us.”
Bhushan persisted, asserting that the bench may place the matter before the Chief Justice for clarification. However, Justice Trivedi said, “These matters have been listed before us. We are bound to hear. If you have any reservation, you can mention before the Chief Justice.”
The PMLA petitions
In July last year, a three-judge bench of the SC upheld the wide and sweeping powers granted to the Enforcement Directorate (ED) under the PMLA. The bench upheld the stringent PMLA, including the provision under which the ED can arrest an individual on the basis of an ECIR (Enforcement Case Information Report) without informing them of its contents.
While a review petition against this judgment was pending, new petitions were filed challenging sections 50 and 63 of the PMLA, which pertain to the ED’s power to summon witnesses, extract confessions and press for punishment for giving false information.
The first such petition was filed by the Leader of the Opposition in the Madhya Pradesh assembly, Dr Govind Singh, against a summons issued to him by the ED in a case related to the PMLA. He also challenged certain provisions of the law in his petition.
On 3 March this year, the court directed the case to be listed before a three-judge bench. The matter was subsequently listed before a three-judge bench on 28 March, and this bench issued notice in the case. The bench was headed by Justice Kaul.
Post this, two more petitions were filed on the same issue, challenging the constitutional validity of the provisions of the PMLA. One of these petitions was filed by Congress leader Girish Chandra Dewangan in April this year and was tagged with the Govind Singh case on 1 May. The bench comprising justices Sanjay Kishan Kaul and Aravind Kumar also issued notice in the case.
Since the matter was tagged with the Govind Singh case, it should have been listed before a three-judge bench. However, on 14 August, Dewangan’s petition was listed before a bench comprising justices Bose and Trivedi instead, even though Justice Kaul’s bench had issued notice in both the cases.
When the case was listed before a three-judge bench, it was headed by Justice Trivedi and also included justices Dipankar Datta and Aravind Kumar.
According to lawyers familiar with the case, certain objections were raised by lawyers involved in a few of these petitions, demanding that the petitions should be listed before Justice Kaul, because he issued notice in the matter. Following this, a special bench comprising justices Kaul, Sanjeev Khanna and Trivedi was constituted to hear the batch of petitions, which also collectively questioned the correctness of the July 2022 SC judgment that upheld the wide and sweeping powers of the ED under the PMLA.
This bench was, however, dissolved late last month, at the end of the second consecutive day of hearing. The decision to dissolve the bench was prompted by the fact that Justice Kaul is set to retire on 25 December this year and the case required detailed hearing.
Satyendar Jain’s bail plea
On Monday, the SC extended the interim bail granted to Aam Aadmi Party (AAP) leader Satyendar Jain till the next date of hearing on 11 December. However, not before its own share of listing controversy.
The SC had granted interim bail to Jain for six weeks on 26 May, on medical grounds, in the money laundering case against him. This interim order has been extended from time to time, while the court is hearing his appeal challenging the Delhi High Court’s refusal to grant him bail.
The case had been partly heard by a two-judge bench comprising justices A.S. Bopanna and Trivedi. However, the case was listed before justices Trivedi and Sharma Monday.
Representing Jain, senior advocate Abhishek Manu Singhvi told the bench that Justice Bopanna’s bench had already heard the matter for two hours, and urged the court to list the case in January, once Justice Bopanna is back.
Justice Bopanna is on leave due to illness.
However, in response, Justice Trivedi remarked that the “interim order cannot continue for that long”.
In response, Live Law quoted Singhvi as saying: “The learned judge who is presiding over this in a bench constituted by the Chief Justice is not sitting owing to illness. The matter has also been heard in part, at length. We have been told he will sit in January. If the bench that is hearing the matter is not sitting, the interim order cannot be touched.”
Justice Trivedi then directed the hearing to be deferred until next Monday to get more clarity, while extending Jain’s interim bail.
(Edited by Nida Fatima Siddiqui)
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