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Justice Mishra to Prashant Bhushan: Because of your act, the whole country is doubting the credibility of this institution

The Chief Justice Dipak Misra-appointed special bench of Justices R K Agrawal, Arun K Mishra and A M Khanwilkar on Monday (November 13), while handling the contentious petition by senior counsel Kamini Jaiswal regarding the UP medical College scam, told senior counsel Prashant Bhushan: “…because of your act, the whole country is doubting the credibility of this institution.”

The issue has exposed the intense power struggle within the apex court that many say is undermining the authority and credibility of the top judicial institution of the country. This special bench was constituted by the quickly-convened constitution bench by the CJI on Friday. That bench – comprising the CJI and Justices R K Agrawal, Arun Mishra, Amitava Roy A M Khanwilkar – had handed the petition of Kamini Jaiswal, originally being handled by Justice J Chelameswar and Abdul Nazeer, to this special bench. Justice Chelameswar had, in fact formed a constitution bench, comprising Justices Chelameswar, Ranjan Gogoi, Madan B Lokur, Kurian Joseph and A K Sikri. That bench was dissolved by the CJI on Friday.

On Monday, senior counsel Shanti Bhushan, who is the father of Prashant Bhushan, asked: “Which bench will be appropriate to hear this petition?”

Justice Arun Mishra said: “Let me clarify. The FIR is against a retired judge. Today we will answer all your queries. We will also let you know why the CJI today is not on this bench.”

While the judges were talking, senior counsel Shanti Bhushan started reading the petition, despite repeated requests from Justice Misra. However, respecting his seniority, age-wise, the judges kept quiet.

Shanti Bhushan said: “Allegations in FIR is implicating corruptions in functioning of this court. Judicial authority includes every authority of the court, including each and every bench of the Supreme Courthttp://www.indialegallive.com/topic/supreme-court. When the order to include five senior-most judges of the Supreme Court was passed, it is binding on every bench including the CJI. Article 142 is binding on the Chief Justice.”

Justice Misra said: “A similar petition was filed by the CJAR and similar grounds are already decided. Can similar petitions be filed by the same person who is the member of same association? Kamini Jaiswal is a member of CJAR.

“Mr Prashant Bhushan, this petition of yours is to taint the image of the current CJI. It is per se contempt.

“Why did you mention this petition on the second day, when the CJAR issue was taken up before the court (on Wednesday and listed on Friday)? You are common advocate in both petitions. Why this multiplicity?”

(Clockwise from top left) Prashant Bhushan, Shanti Bhushan, Chief Justice Dipak Misra and Kamini Jaiswal
(Clockwise from top left) Prashant Bhushan, Shanti Bhushan, Chief Justice Dipak Misra and Kamini Jaiswal

At this Prashant Bhushan said: “I got a call from the registry that the CJAR petition will be taken up by the other bench. On Thursday Ms Kamini Jaiswal mentioned this matter. My only concern was that the assignment of benches should not take place by the judge, who is himself a part of these serious allegations.”

Justice Mishra said: “Why is your focus on Court No. 2 (of Justice Chemleshwar)? Why you are getting so particular about a bench? All the benches are same.

“What do you understand by the bench of five senior-most judges? We all are equal and gems of this institution. I have no grudges towards any of my companion judges. Even the CJI is equal to me.

“Mr Bhushan, because of your act, whole country is doubting the credibility of this institution. You can mention for early hearing, you can ask for early order. But, as per you contention, we judges can’t formulate the bench as per judicial convenience.”

At this Shanti Bhushan interjected: “This matter should be referred to the constitution bench. This bench can’t have the confidence of a constitution bench.”

At this Attorney General K K Venugopal said: “American courts have provisions of contempt for such kind of allegations.”

Justice Mishra, referring to the AG, said: “If such kind of allegations are to be considered in this manner, then no judges on earth will be spared. I admire Prashantji to file these petitions. The aim is to scandalise court No. 1. and get favourable part from court No. 2.

“To ensure the independence of the judiciary, the president shall accord the cases in which FIR is against the CJI. FIR allegations can’t be addressed in such a way.”

The AG said: “This petition should never have been filed.”

Justice Mishra said: “Not only was it filed, but re-filed and again filed.”

Said the AG: “There are advocates, who dupe clients. They assure client that ‘I know this particular judge.’”

Additional Solicitor General Tushar Mehta said: “The second petition didn’t even disclose the sub-judice nature of this matter in some other petition. This is nothing but to scandalise the highly prestigious institution of judiciary.

Justice Mishra said: “This petition has damaged the image of the most important judge, the CJI, of this court. Damages have been done to a great extent.”

Prashant Bhushan said: “The petition is of serious issues. The probe has to be carried out by the SIT, headed by the CJI and monitored by this court. Matter is a sensitive matter, that’s why I requested for the constitution bench of five most senior judges of the court.”

The bench reserved its order. This will be given on Tuesday.

—India Legal Bureau

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