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Fracas in Supreme Court: There’s deep distrust at the top

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In my fifth decade of practice at the Supreme Court, it is difficult to recall any moment as ugly and demoralising as these two days.

As I reflect on the last two very forgettable days in the Supreme Court, I wonder what the next week has in store. For someone who is in the fifth decade of his practice now in this court, it is difficult to recall any moment as ugly and demoralising as these two days. Who would have ever thought that the judiciary needs a ‘Truth and Reconciliation Commission’?

When, on 8 November, the bench presided over by Justice Chelameswar directed the writ petition of the Campaign for Judicial Accountability and Judicial Reforms (CJAR) be listed before an “appropriate bench” within two days, on 10 November, it obviously knew the nature of the case and the urgency involved. This order did not seem to question the Chief Justice of India’s position as ‘master of the roster’, because the appropriate bench, in the normal course of events, would be decided by the Chief Justice.

When the second petition was filed by Kamini Jaiswal and mentioned on the next day, 9 November, before Justice Chelameswar’s bench again, the normal order would have been to direct it to be tagged and heard along with the CJAR petition on the 10th by the bench which was already assigned to hear the case  (Justice A.K. Sikri’s bench). The urgency to hear this case on the same day and by Justice Chelameswar’s bench and not Justice Sikri’s bench (to which the earlier case had already been assigned) on the next day is truly inexplicable.

But what is even more surprising is the reaction of the Chief Justice in suspending his constitution bench for an hour, retiring to his chambers, and ensuring that his general instructions on listing of cases mentioned in courts other than his were brought to the notice of Justice Chelameswar as Jaiswal’s petition was taken up. The transgression of a procedure still did not warrant the rising of a constitution bench.

The next unfortunate decision of Justice Chelameswar’s bench was to direct the listing of the Jaiswal petition before a constitution bench comprising the five senior-most judges. By itself, the idea of a case like this being heard by the five senior-most judges was quite appropriate. Within very recent memory is the case of Justice Karnan, where the seven senior-most judges of the court led by the then Chief Justice heard and decided the case. Since that was the case of a sitting High Court judge committing contempt of the entire judicial institution, the fact that seven senior-most judges of the country sat together to decide the case sent the right message.

The present cases, arising out of the arrest of a former High Court judge for allegedly holding out a promise to influence a decision by the country’s highest court are equally important for the judicial institution and for the country, and deserve to be heard by the five senior-most judges. But this ought not to have been done by Justice Chelameswar’s bench by a judicial order. It could not have been implemented by the Registrar in charge of listing, because he takes his orders from the Chief Justice.

The idea that it ought to be heard by a constitution bench of five senior-most judges ought to have been recorded as a suggestion by Justice Chelameswar’s bench, and on the very first day, i.e. when the CJAR petition was directed to be listed before the “appropriate bench”. Such a suggestion would have had a moral force which a Chief Justice would find difficult to disregard, even as he performed his role as master of the roster.

The order passed by Justice Sikri’s bench on the CJAR’s petition Friday, 10 November, was appropriate. It took note of the fact that Justice Chelameswar’s bench had referred the Kamini Jaiswal matter to the constitution bench, and directed that the CJAR matter be placed before the Chief Justice for passing appropriate orders for listing it.

But the bizarre sequence of events of Friday afternoon before the Chief Justice’s court makes Justice Chelameswar’s excesses now look insignificant. If there was no extra urgency for his bench to take up the Kamini Jaiswal petition on 9 November, there was none either for the Chief Justice to constitute a bench Friday at 3 pm(Justice Sikri’s bench pronounced its order at around 12.45 pm). Even more bewilderingly, a seven-judge bench was first announced, but it was a five-judge bench which sat. We will never know whether Justices Sikri and Ashok Bhushan, who were originally to be part of the seven-judge bench, excused themselves, or were excluded at the last minute. And if a five judge bench was sitting, surely the Kamini Jaiswal petition which was already referred (rightly or wrongly) to a five-judge bench should have also been listed.

One very regrettable feature of the proceedings was that the petitioner’s counsel, Prashant Bhushan, alone was not allowed to speak, while “mass participation” of other lawyers seeking to condemn Bhushan was condoned or encouraged. More shocking was the fact that the order of 9 November of Justice Chelameswar’s bench referring the Kamini Jaiswal case to the five senior-most judges stood quashed without that case being listed before the Chief Justice’s court.

No allegation against CJI

I do not support the view that the Chief Justice should not be part of the bench which hears these two cases. There is no allegation against him in the FIR, and what is alleged is only an attempt to influence the course of proceedings in a case which was before him and two other colleagues.

Now that the position of the Chief Justice as the master of the roster stands affirmed by a five-judge bench presided over by him, a wise and statesmanlike course could have been adopted. Both the Kamini Jaiswal and CJAR cases could have been listed before a five-judge bench presided over by the Chief Justice with his four senior-most colleagues.

But at the time of writing, information comes from the causelist of Monday 13 November that the Kamini Jaiswal case alone is listed before a special three-judge bench, which has neither the Chief Justice nor any of his four senior-most colleagues. The public signal which has now gone out is that there is deep distrust at the top.

Read more: ‘If judiciary can’t get its act together, then god save India’ by Santosh Hegde and ‘CJI’s action on bribery charge is SC’s biggest-ever crisis, and it comes from within’ by Alok Prasanna Kumar


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  1. Is it a bad idea that each judgement is passed with an undertaking that the judgement is delivered without any pressure, bribe, bias and prejudice under lie detector . After all the fate of.the whole nation is decided by an electronic machine (EVM), why not the judgement by another electronic device.

  2. In my view, the judiciary in India is passing through a crisis.

    It all started with Justice JS Verma’s decision that led to the formation of the collegiate system of selection of judges. That is Judges selecting judges.

    The adage “Power corrupts and absolute Power corrupts absolutely” applies on all fours to the present situation.

    I am not saying that there was no purveying of influence on corruption in judiciary in India before or immediately after independence. There have always been black sheep.

    What happened was the proportion has been turned upside down.

    Progeniosis has become rampant. Only the other day I heard stories of money changing hands for becoming a judge. Some of the selections really make you wonder.

    I’m not saying that criticism of individual judges and the judgements is something new. I remember a judge writing in his judgement about “assess braying in different tones from the various rooms and the compound; and the humorous statement by a judge that “the new building is full of cracks – very bad construction” with a wink and a nod.

    But public exhibition of disagreements? Lack of dignity and decorum, these are all new to old bandicoots like me.

    Some people are destroying the institution from inside. They do not realise that if the institution falls so will they.

    I am of the considered view that the present-day institutions neither have the maturity nor the sagacity to handle absolute power. In a democracy absolute powers should be given to none. There should always be checks and balances. The powers were conferred on the courts for the benefit of the people and not to satisfy egos of small people.

    If there’s goes on expected constitutional review Parliament that will whittle away the powers of the courts. I do not think it should happen because that will close the doors of Justice to the long suffering common man.

    I can only take guidance from what my grandfather did. A mere gossip that the date of birth furnished in the school leaving certificate of 1890 or so in a small native state (at a time when there was no proper recording of births) was wrong made in a club made him request for premature retirement. Even though the president determined the date of birth is correct he insisted on his request being accepted because “Caesar’s wife must be above suspicion”.

    Who follows that principle now? Having said this I have to add who can follow this principle? Because the allegations are made with and without basis against anybody and everybody.

    I am not saying this to offend anybody or any institution. If I am hurting anybody’s sentiment I apologise. I think it is time that the indian Juduciary needs a makeover.

  3. I am not a lawyer but it does seem odd that the court randomly consulted assorted lawyers present in the courtroom while giving insufficient time to the senior advocate fighting the case.

  4. Mr Bhushan, you can get justice only if you bribe to clerk for quick dates and finally handsome bribe to judges for desired results. Indian Judiciary knows it, but behave like ostrich. Citizens are compelled to follow the bribing system by torturing them in judicial system (see the pendency of cases). unprivileged lives on hope, riches lives in confidence to win, middle-class lives on compromise. People can change the govt not judiciary. In fact citizens have no control over judiciary, which may lead it to be more lethargic and arrogant.

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