Supreme Court of India
KAMINI JAISWALversusUNION OF INDIA & ANR.
- Citation
- 2017 INSC 1112
- Decided
- 14 November 2017
- Disposal
- Dismissed
Holding
The Chief Justice of India is the master of the roster and may constitutionally constitute benches; Articles 142 and 144 are not applicable, and the petitions constitute forum hunting and contempt, warranting dismissal.
Summary
The petitioners, including a member of the Commission for Judicial Accountability and Reforms, filed successive writ petitions alleging that an FIR implicated senior judicial functionaries and that the Chief Justice of India (CJI) should not hear or assign the matter. They sought a Special Investigation Team and the recusal of a sitting judge, claiming violations of Articles 142, 144 and 145 of the Constitution. The Court examined whether the CJI is the master of the roster, whether Articles 142/144 apply, and whether the petitions amounted to forum hunting and contempt. It held that the CJI’s power to constitute benches is supreme and that the earlier order of the Constitution Bench overrides the conflicting order of Court No.2. The Court found the petitions to be an improper attempt at forum hunting, that the recusal prayer was untenable, and that the allegations were scandalous and contemptuous. Consequently, the petition was dismissed.
Issues considered
- The scope of the Chief Justice of India's authority to constitute benches and allocate cases under the Constitution and Supreme Court Rules.
- Whether Articles 142, 144 and 145 of the Constitution are applicable to the orders in question.
- Whether filing successive, identically worded petitions constitutes forum hunting and contempt of court.
- The propriety of seeking recusal of a judge on the ground of alleged conflict of interest in the present circumstances.
Legislation cited
- Constitution of Indias. Article 142, s. Article 144, s. Article 145, s. Article 32, s. Article 42
- Contempt of Courts Act
- Prevention of Corruption Act, 1988s. Section 120B, s. Section 8
- Supreme Court Rules, 2013
Subjects
Chief Justice of Indiarosterbench constitutionforum huntingcontempt of courtrecusalArticle 142Article 144Article 145Supreme Court RulesPrevention of Corruption Actjudicial independence
Judgment
[2017] 13 S.C.R. 189
KAMINI JAISWAL A
v.
UNION OF INDIA & ANR.
(Writ Petition (Criminal) No.176 of2017)
NOVEMBER 14, 2017 B
[R. K. AGRAWAL, ARUN MISHRA AND
A.M. KIIANWILKAR, JJ.]
Administration of Justice:
Writ Petition u/Art. 32 of the Constitution [W.P. (Cr/.) c
No. 16912017} filed on 8.11.2017 by Commission for Judicial
Accountability and Reforms (CJAR) - Stating that an FIR relating
to criminal conspiracy and of taking illegal gratification to influence
the outcome of a pending case before Supreme Court revealed a
nexus between the middlemen, Hawala dealers and senior public D
functionaries including persons in judicial field - The petition was
mentioned before Court No.2 and thereafter, it was listed for hearing
on 10.11.2017 before a particular Bench - On 9.11.2017 another
similar writ petition (present petition) identically worded, was filed
by the petitioner (a member of (CJAR) and was mentioned before
Court No.2 with a prayer to hear the matter on the same day - The E
Bench (Court No.2) posted the present petition before itself for
hearing on the same day - After hearing, the Bench (Court No.2)
decided to place the matter before Constitution Bench which would
consist of senior most five Judges of the Court - When the WP
(Cr/.) No.169/2017 came up for hearing before another Bench, the
F
Court taking into account the order in the present case, directed to
place the matter before the Chief Justice of India for passing
appropriate orders - The matter was considered on administrative
side by the Chief Justice and he constituted 5-Judge Constitution
Bench - The Constitution Bench (constituted by the Chief Justice)
on 10.11.2017 decided that the Chief Justice is the Master of roster G
and no Bench can direct the composition for constitution of a Bench
- Thereafter, the Chief Justice constituted 3-Judge Bench to hear
the matter on 13.11.2017 - Plea was taken by petitioner that order
dated 9.11.2017 (a/locating the matter to 5 senior most Judges)
could have been passed under Art.142 of the Constitution and the
H
189
190 SUPREME COURT REPORTS [2017] 13 S.C.R.
A order dated 9.JJ.2017 was binding on other courts in view of Art.
144 and hence could not have been rendered ineffective by order
dated 10.11.2017 - Petitioners also took the plea that as the pending
matter (order whereof was alleged to be influenced) was heard by
the Chief Justice, and by one of the Judges in the present Bench, the
matter cannot ~e heard by a Bench constituted by the Chief Justice
B
and that the other Judge should recuse himself from the matter -
Held: Arts. 144 or 142 are not applicable in the present case - In
case they are attracted, it is decision of Constitution Bench (whereby
it decided that Chief Justice is the master of roster) which is binding
- It has been held by Constitution Bench that Chief Justice is the
c master of roster and the present Bench was constituted by the Chief
Justice in his administrative capacity - It was highly improper to
allege conflict of interest that the Chief Justice should not hear on
judicial side or allocate that matter on administrative side - Filing
of two successive petitions are a misconceived venture, amounting
to fonim hunting and has brought the entire judicial system into
D
disrepute for no good cause - Asking for recusal of a particular
Judge from the 1r1atter is another attempt to fonim hunting and also
amounts to contempt of Court - Making such scandalous remarks
also tan/amounts to interference with administration of Justice -
Constitution of India - Arts. 142, 144 and 145 - Supreme Court
E Rules, 2013 - Contempt of Court.
Advocates:
Petition filed by advocate in his/her personal capacity -
Making scandalous remarks against judiciary - Held: Making
scandalous rem&rks ten/amounts to interference with administration
F of justice - An advocate cannot escape the responsibility on the
ground that he/she drafted the same in his/her personal capacity.
Maxim:
"nemo judex in causa sua" - Applicability and scope of -
G Discussed.
Dismissing the petition, the Court
HELD: 1. It cannot be said that this Court cannot hear the
matter as the Bench has been formed by the Chief Justice of
India in exercise of his administrative power. That issue stands
H
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 191
concluded by the decision of 5-Judge Bench of this Court. The A
Constitution Bench of this Court has clearly held that the Chief
Justice of India is the master of the roster, and any order which
had been passed contrary to the order of the Constitution Bench,
was held to he ineffective in law, not binding on the Chief Justice
of India. The Chief Justice of India has constituted a Bench on
B
administrative side after the aforesaid decision of this Court in
which, this precise question, as to the competence of the Chief
Justice to constitute a Bench, has been decided. The decision is
binding. (Para 15] [208-H; 209-A-B)
2. It is not correct to say that Article 144 of the Constitution C
of India binds this Court and, renders it impermissible, for any
other Bench of the Supreme Court, even if it is a Bench presided
by the Chief Justice of India, to overrule an order passed by
another Bench of the Supreme Court. It is also not correct that
all orders passed by the Supreme Court are binding under Article
142 of the Constitution of India, even upon the Chief justice of D
India and other Benches of the Supreme Court. There is no
question of applicability of Articles 144 or 142 of the Constitution
in the present case. In case they are attracted, it is the decision
of the Constitution Bench that is binding on all concerned, as the
precise question has been dealt with by the Constitution Bench
E
of this Court in the case of CJAR. (Para 16] (209-C-D, E-F)
Rupa Ashok Hurra v. Ashok Hurra & Anr.
(2002) 4 SCC 388 : [2002] 2 SCR 1006 - relied on.
3. An unprecedented situation has been created by the
judicial order dated 9.11.2017. The present petition was filed on F
9.11.2017, a similar petition, filed by CJAR, had been mentioned
on 8.11.2017 by same set of counsels before Court No.2, as the
Chief Justice of India was presiding the Constitution Bench.
Obviously, mentioning could have been made before Court No.2;
but, when mentioning had been done in a similar matter filed by
CJAR and the case had been ordered to be listed on Friday, i.e. G
10.11.2017, and the petition filed by CJAR was listed before the
Bench of another Judge, to file and mention this similarly worded
identical petition on the next day with a similar relief; it was
mentioned, by one of the same senior counsel before Court No.2,
requesting to take it up on the same day. That clearly amounted H
192 SUPREME COURT REPORTS [2017] 13 S.C.R.
A to forum hunting. There was absolutely no urgency in the matter
to make the mention again by filing the petition on 9.11.2017
itself. They wanted the matter not to be heard by another Bench
of this Court. [Fara 17] [209-G-H] [210-A-B]
4. Even if second petition could have been filed, being,
B arguendo, within the right of a member of an organisation to file
such separate petition, but, there could still not have been any
forum hunting in the method and manner it has been done to
create ripples in this Court, by indulging in this exercise of filing
the second petition on the very next day, thereafter, mentioning
it on the same day, for the member to exercise her right. It was
c not proper to request Court No.2 to take up the matter when the
other matter filed by CJAR was coming up on Friday before
another Bench. At the most the prayer could have been to list
the said petition along with the matter filed by CJAR which was
coming up for hearing on Friday, 10.11.2017. [Para 17[ [210-E-G]
D 5. On the one hand, the judicial order dated 9.11.2017
included the Chief Justice of India to hear this matter on merits
while, on the other hand, prayer is being made in the application
filed on 13.11.2017 as well as by the counsel appearing on behalf
of the petitioner that the Chief Justice of India should neither
E hear the matter, nor assign it on the administrative side. There
is a contradiction in the order passed by Court No.2 on 9.11.2017
and in their submission. [Para 18] [211-A-B]
6. Even when there is an allegation against the Chief Justice
of India, it is he who has to assign the case to a Bench as
F considered appropriate by him. This has not only been settled by
the Constitution Bench in CJAR case vide order dated 10.11.2017
but also by a 3-Judge Bench of this Court. [Para 19) [211-B-C)
Dr. D. C. Saxena v. Chief Justice of India (1996) 5 SCC
216 : [19961 3 Suppl. SCR 677 - relied on.
G 7. The submission so raised and averments so made in this
petition and the entire scenario created by filing of two petitions
is really disturbing a Jot. The entire judicial system has been
unnecessarily brought into disrepute for no good cause
whatsoever. It passes comprehension how the petitioner
H
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 193
presumed that there is an FIR lodged against any public A
functionary. There is an averment made in the writ petition that
it is against the highest judicial functionaries that FIR has been
recorded. The Court does not find reflection of any name of the
Judge of this Court in the FIR. There is no question of registering
any FIR against any sitting Judge of the High Court or of this B
Court as it is not permissible. There cannot be any registration
of FIR against a High Court Judge or Chief Justice of the High
Court or the Supreme Court Judge without the consultation of
the Chief Justice of India and in case there is an allegation against
Chief Justice of India, the decision has to be taken by the
President, in accordance with the procedure prescribed in the C
said decision. Thus the petitions as filed, are a misconceived
venture inasmuch as the petition wrongly presupposes that
investigation involves higher judiciary, i.e. this Court's
functionaries are under the scanner in the aforesaid case,
independence of judiciary cannot be left at the mercy of the CBI D
or that of the police. There cannot be any FIR even against the
Civil Judge/Munsif without permission of the Chief Justice of
the concerned court and rightly FIR has not been registered
against any sitting Judge; otherwise, on unfounded allegatioins
any honest Judge to the core, can be defamed and reputation can
be jeopardised. [Para 22] [216-E, F, G] [217-A,B, CJ E
K. Veerswami v. Union of India (1991) 3 SCC 655 :
[1991] 3 SCR 189 - relied on.
8. The alleged actions of a retired Judge of a High Court,
allegedly assuring and promising, a 'favourble' decision in the
aforesaid circumstances of the case which was then pending before F
this Court, in the aforesaid circumstances and has assured
favourable orders, begs the question as to what favourable orders
have been passed. There was no favourable order granted by
this Court in favour of the medical college for the current academic
session 2017-18, rather its inspection for considering G
confirmation of letter of permission for the next year 2018-19
had been ordered. The decision will be in the hands of the M<;:I.
After decision has been rendered on 18.9.2017 by this Court, an
FIR has been lodged and it appears that money was yet to be
H
194 SUPRBME COURT REPORTS [2017) 13 S.C.R.
A exchanged. The FIR dated 19.9.2017 reflects that four of the
accused were likely to meet another accused for getting
favourable order at Delhi shortly; whereas this Court has already
decided the matter on 18.9.2017. Thus it is a far fetched and too
tenuous to even assume or allege that the matter was pending in
B this Court for which any bribe was to be delivered to anyone.
[Para 22] [217-D-G]
9. In case Judge is hearing a matter and if he comes to
know that any party is unscrupulously trying to influence the
decision making or indulging in mat practices, it is incumbent
upon the Judge to take cognizance of such a matter under
c Contempt of Courts Act and to deal with and punish such person
in accordance with law as that is not the conflict of interest but
the purpose for which the entire system exists. Such things cannot
be ignored and recusal of a Judge cannot be asked on the ground
of conflict of interest. [Para 23] (217-H] [218-A-B]
D 1O. It was highly improper for the petitioner to allege conflict
of interest in the petition filed that the Chief Justice of India
should not he~r on judicial side or allocate the matter on the
administrative side. It appears that in order to achieve this end,
the particular tequest has been made by filing successive petitions
day after the other and prayer was made to avoid the Chief Justice
E
of India to exercise the power for allocation of cases which was
clearly an attempt at forum hunting and has to be deprecated in
the strongest possible words. Making such scandalous remarks
also tantamount to interfering with administration of justice, an
advocate cannot escape the responsibility on the ground that he
F drafted the same in his/her personal capacity. [Para 23] [218-B-
D]
Shamsher Singh Bedi v. High Court of Punjab &
Haryana (1996) 7 SCC 99 ; Charan Lal Sahu v. Union
of India (1988) 3 SCC 255 : [1988] 1 SCR 441 ;
R. K. Anand v. Delhi High Court (2009) 8 SCC 106 :
G
[2009] 11 SCR 1026 ; Leila David v. State of
Maharashtra (2009) 10 SCC 337 : [2009] 15 SCR
317 ; Amrik Singh v. State (Delhi Admn.) (1971) 3 SCC
215 ; Bal Kishan Giri v. State of U.P. (2014) 7 SCC
280 : [2014] 6 SCR 545 - relied on.
H
KAMINI JAISWAL v. UNION OF INDIA & ANR. 195
Union of India & Ors. v. Mis. CIPLA Ltd. & Anr. A
(2017) 5 SCC 262 : [2016) 7 SCR 523 - referred to.
11. Yet another disturbing feature which aggravates the
sitnation is that prayer has been made that one of the Judges
hearing this petition should recuse from the matter. This is
nothing but another attempt of forum hunting which cannot be B
permitted. Rather this kind of prayer was held to be
contemptuous, aggravating the contempt in the case of *Dr. D C
Saxena case. This is yet another strategy to succeed in the attempt
that the CJI should not take up the matter himself in the judicial
side and administrative side for what may apply to and hold good C
for one of the Judges will be equally applicable to the CJI. Though.
it was submitted that there is no allegation against the said Judge
but since he decided the matter of medical college with respect
to which FIR has been lodged, he should recuse. Rather it is
the duty of the Bench to take up such matter firmly; such
unscrupulous allegations and insinuations cannot be allowed to D
be hurled by oral prayer made on behalf of the petitioner for
recusal. This is simply deprecated and it is another attempt to
bring the system in disrepute, casting of unwarranted aspersions
tantamounts to seriously jeopardizing the independence of the
judiciary. [Para 28) [222-D-G)
E
12. Though it is true that none of the Judges is above law;
no person in the higher echelons is above the law but at the same
time it is the duty of the Bar and the Bench to protect the dignity
of the entire judicial system. Filing of such petitions and the zest
with which it is pursued, has brought the entire system in the last
few days to unrest. An effort was made to create ripples in this F
Court and serious unwanted shadow of doubt has been created
for no good reason whatsoever by way of filing the petition which
was wholly scandalous and ought not to have been filed in such a
method and manner. It is against the settled proposition of law.
Ultimately after arguing at length, at the end, it was submitted by G
the petitioner and her counsel that they were not aiming at any
individual. If that was not so, unfounded allegations ought not to
have been made against the system and that too against the Chief
Justice of this country. In case majesty of judicial system has to
survive, such kind of petitions should not have been preferred
H
196 SUPREME COURT REPORTS [2017) 13 S.C.R.
A that too against the settled proposition of law laid down by this
Court in *Dr. D C Saxena and **K. Veeraswami cases. [Para 29]
[222-A-C, HJ
*Dr. D.C. Saxena v. Chief Justice of India (1996) 5
SCC 216: [1996) 3 Suppl. SCR 677; **K. Veerswami
B v. Union of India (1991) 3 SCC 655 : [1991) 3 SCR
189 - relied on.
13. Heariqg on 10.11.2017 by a Constitution Bench of this
Court, was a fail accompli and circumstances compelled such
hearing as on 9.11.2017 (Thursday) in this case, order was passed
c bypassing the power of the Chief Justice of India to constitute a
5-Judge Bench in order of seniority including the Chief Justice
of India. It was not permissible and hearing of the instant matter
was scheduled for 13.11.2017 (Monday) and 10.11.2017 (Friday)
was the only day available on which the law was required to be
settled otherwise judicial order was binding and it was necessary
D to decide the question as other Bench had requested the Chief
Justice of India to assign this matter to an appropriate Bench. As
the Chief Justice of India had to assign it to a Bench, situation of
dilemma was created for the Chief Justice of India whether to
assign the matter of CJAR to an appropriate Bench or to go by
E the judicial order by constituting a Bench of 5 senior Judges on
13.11.2017. Tl1us a Constitution Bench was required to be
constituted on the day which was available for deciding the issue
so as to decide the issue whether by judicial order case can be
assigned to a particular Bench or it is in the ambit of power of the
Chief Justice of India to assign the case. As that issue has been
F settled by the Constitution Bench decision relying on an earlier
decision in the case of #Prakash Chand, roster making is the
prerogative of the Chief Justice of India was laid down in the
case of #Prakash Chand. Besides the Supreme Court Rules, 2013
also provides that the Chief Justice of India has to assign the
G case. The cases cannot be assigned by judicial order. Such judicial
order is simply to be ignored as it is not open to the Judges to
decide which matter is to be heard by whom as laid down by
Constitution Bench. [Para 30) [223-D-F, G, H; 224-A-B)
#State of Rajasthan v. Prakash Chand & Ors.
(1998) 1 SCC 1: [1997) 6 Suppl. SCR 1 - followed.
H
KAMINI JAISWAL v. UNION OF INDIA & ANR. 197
14. The Court deprecates the conduct of forum hunting that A
too involving senior lawyer of this Court. Such conduct
tantamounts wholly unethical, unwarranted and nothing but forum
hunting. [Para 30] (224-D]
Union of India & Ors. v. Mis. CJPLA Ltd. & Anr. (2017)
5 SCC 262 : [2016] 7 SCR 523 - relied on. B
15. There is no room for the petitioner to infer the bias.
There is no reasonable basis to pray for recusal of one of the
Judges hearing the present case. That tantamount to contempt
of court and an attempt at forum hunting. The maxim nemo judex
in causa sua that no man is to be judge in his own cause, should c
be held sacred and that maxim is not to be confined to a case in
which he is a party but applies to a cause in which he has an
interest. It is far fetched and too tenuous to submit that any Judge
of this Court much less the Judge in particular, has any interest
in the subject matter and for that reason in spite of there being
no allegation in the writ petition, that Judge should recuse. There D
is no room for reasonable suspicion even in remote and argument
is simply too derogatory to be made, probably that has been made
anyhow or somehow to protect the case and to bring disrepute to
this Court. The Court cannot fall prey to such unscrupulous
devices adopted by the litigants, so as to choose the Benches as E
that is the real threat to very existence of the system itself and it
would be denigrated in case the Court succumbs to such pressure
tactics. [Para 31] (224-E-H; 225-A-B]
Ranjit Thakur v. Union of India & Ors. (1987) 4 SCC
611 : (1988) 1 SCR 512 ; Supreme Court Advocates F
on Record Association v. Union of India (2016) 5 SCC
808 - referred to.
Bradely v. Fisher 80 US 335 (1871) - referred to.
Case Law Reference
G
[1997] 6 Suppl. SCR 1 relied on Para 12
(2002] 2 SCR 1006 relied on Para 12
[1996] 3 Suppl. SCR 677 relied on Para 19
H
198 SUPREME COURT REPORTS [2017] 13 S.C.R.
A [1991] 3 SCR 189 relied on Para 22
(1996) 7 sec 99 relied on Para 23
(1988] 1 SCR 441 relied on Para 23
[2009] 1li SCR 1026 relied on Para 24
B [2009] 15 SCR 317 relied on Para 25
(1971) 3 sec 215 relied on Para 25
[2014] 6 SCR 545 relied on Para 25
[2016] 7 SCR 523 referred to Para 26
c [1988] 1 SCR 512 referred to Para 31
.. (2016) 5 sec 808 referred to Para 31
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 176 of2017.
D Under Article 32 of the Constitution of India.
K. K. Venugopal, AG, Tushar Mehta, ASG, Shanti Bhushan,
R.S. Suri, Sr. Advs., Prashant Bhushan, Rohit kumar Singh, Abhimanue
Shrestha, Kartik Seth, Divyesh Pratap Singh, Ms. Rani Mishra, Jatinderpal
Singh, Ms. Shruti Dutt, Suyash Srivastava, Ramesh Kumar Mishra, Raj
E Keshari, Ms. Pyoli, Ms. Cheryl D'souza, Ms. Neha Rathi, Ms. Amiy
Shukla, Shakti Vardhan, Dcvesh Agnihotri, Govind Jee, 0. Kuttan,
R. Balasubramarnian, S. S. Shamshery, Raja! Nair (For Mukesh Kumar
Maroria), Ms. Madhavi Divan, Ayush Puri (For M. K. Maroria), Ajit K.
Sinha, Gaurav Bhatia, Advs. for the appearing parties.
F The following Judgment of the Court was delivered :
JUDGMENT
1. The facts are disturbing in the instant case. By moving two
successive petitions, one on Wednesday (8.11.2017) and the other on
G Thursday (9.11.2017), identically worded similar petitions, one by the
Commission for Judicial Accountability and Reforms (CJAR) and the
other by Ms. Kamini Jaiswal, Advocate of this Court, who is a member
of CJAR. Both the petitions are identically worded. The petition filed on
Wednesday was to be listed on Friday (I 0.11.2017) before a Bench
presided by Hon'ble A.K. Sikri and Ashok Bhushan, JJ. As stated by
H Shri Prashant Bhushan, one of the counsel representing the petitioner,
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 199
the said fact was informed to him by the Registry of the Court on A
8.11.201 7. Learned counsel further states that as the petition had not
been listed before same Bench which ordered its listing for Friday, i.e.
Court No.2, it became necessary to file the present second petition i.e.
W.P. (Cr!.) No.176/2017 by Ms. Kamini Jaiswal,Advocate of this Court.
2. A prayer was made to Court No.2 to hear the matter on the B
same day; urgency in the matter had been urged by Shri Dushyant Dave,
learned senior counsel, who mentioned the matter. Order dated 9.11.2017
passed by Court No.2 is extracted hereunder :
"Issue notice.
Dasti, in addition, is permitted.
c
This matter was taken on Board upon being mentioned in the
morning at 10.30 a.m. On an inquiry from the Bench regarding
the urgency in the matter, it was brought to the notice of the Court
that a certain case is registered by the Central Bureau of
Investigation against a retired High Court Judge of this country
containing serious allegations implicating the said Judge, shown D
as an accused in the FIR No. lO(A) under Section 8 and Section
120 B of the Prevention of Corruption Act, 1988. The FIR
contained certain allegations which are disturbing. The allegations
pertain 2 to the functioning of this Court. On perusal of the FIR
which was placed before us in the morning, we thought it necessary E
and proper to take up the matter immediately. Therefore, permission
was granted to move the matter today at 12.45 p.m. before this
Court. Accordingly the papers are placed before us at 12.45 p.m.
Mr. Dushyant Dave, learned senior counsel makes submissions
highlighting various aspects of the matter, the details of which we
do not propose to make in this order. But, at the same time, we F
are also duty bound to place the developments that when the
hearing of the matter was in progress, the Officer of the Registry
placed a xerox copy of the proceedings purportedly issued by
Hon'ble the ChiefJustice oflndia, a copy of which is annexed to
this Order. Having regard to the totality of the circumstances, we G
deem it appropriate that this matter be heard by the Constitution
Bench of the first five Judges in the order of seniority of this
Court. Having regard to the importance of the matter, we also
deem it appropriate that the matter be listed on Monday, the 13th
November, 2017. Having regard to the nature of the case, it is
H
200 SUPREME COURT REPORTS [2017] 13 S.C.R.
A also necessary to make an interim order regarding the custody of
the case diary and all the materials collected by the second
respondent during the course of the investigation of the above-
mentioned crime. We, therefore, deem it appropriate to direct the
second respondent to produce the entire material collected by the
CBI in the course of3 the investigation of the crime and keep it in
B
a sealed cover and produce the same before the Constitution Bench
on Monday, the 13th November, 2017.
Communicate this order to the second respondent forthwith."
3. In the other matter, i.e. WP. (Cr!.) No.169/2017, filed by CJAR,
c which was liste~ before a Bench presided by Hon'ble A.K. Sikri, J.,
following order was passed by the Bench on Friday, the I Olli November,
..
2017:
"Mr. Prashant Bhushan, learned counsel has brought to our notice
order dated 09.11.2017 passed in W.P.(Crl.) No.176/2017 referring
D the matter to the Constitution Bench. Let the matter be placed
before Hon'ble the Chief Justice for passing appropriate orders
for listing this matter.
Mr. R.S. Suri, senior advocate/President, Supreme Court Bar
Association (SCBA) submits that SCBA also wants to get itself
E impleaded as a party respondent and render assistance. On an
oral request of Mr. Suri, the prayer is allowed and the SCBA is
imp leaded as a party respondent."
4. In the writ petitions, a prayer has been made to constitute a
Special Investigation Team (SIT), headed by retired Chief Justice of
India, to investigate the offences arising out of FIR being RC. IO(A)/
F
2017-AC. III dated 19.9.2017 recorded at New Delhi by the CBI and
those connected therewith and take consequential action thereafter in
accordance with law. A prayer was also made to direct the CBI, to
produce before this Court for its perusal and, preserve and protect, all
evidences/materials collected so far and hand over all the materials/
G evidences collected so far in the FIR to the SIT to be constituted by this
Court.
5. It has been averred in the petitions, filed under Article 32 of the
Constitution of!ndia, that the FIR, relating to criminal conspiracy and of
taking illegal gratification to influence the outcome of a pending case
H
KAMIN! JAISWAL v. UNION OF !NOIA & ANR. 201
before this Court, reveals a nexus between the middlemen, Hawala A
dealers and senior public functionaries, including persons in the judicial
field. The FIR has been registered with respect to case of Prasad
Education Trust at Lucknow. The medical college set up by the Trust
was debarred by the Government from admitting students for the years
2017-18 and2018-19. The FIR lodged by the CBI names a retired Judge
B
of the High Court as an accused, who had allegedly been negotiating
through a middleman to get a favourable order in the petition pending
before this Court. The said petition was heard by a Bench headed by
Hon'ble Chief Justice of India. Thus, taking this as a pretext, in the
instant petition, it has been averred, that the FIR casts a cloud on the
judiciary at the highest level. Thus, the prayer has been made that, c
investigation in relation to aforesaid FIR should be handed over to an
SIT headed by a retired Chief Justice of!ndia and not left to the agency
controlled by the Government; with the averment that in order to restore
the confidence of the public in the judiciary, the agency controlled by the
Government should not be allowed to undertake the said investigation. It
0
is further averred in the petition, that since the matter had been heard by
a Bench presided over by Hon'ble Chief Justice of India, propriety
demands that the Hon'b!e Chief Justice oflndia ought not to deal with
the present petition either on the judicial side, or even on the administrative
side. Therefore, present petition can neither be heard by a Bench presided
by the Hon 'ble ChiefJustice oflndia, nor can it be assigned to any other E
Bench by Hon'ble Chief Justice oflndia in his administrative capacity.
Further, that the petitioner has not made any representation .to the
respondent; because of the extreme urgency in the matter, the writ
petition has been filed. The FIR dated 19.9.2017 has been placed on
record as Annexure Pl.
F
6. It is further averred, that the College had been granted
permission on .L0.8.2016 by the Oversight Committee of the Medical
Council oflndia; on failure to fulfill certain conditions, it got debarred
from admitting the students for two academic sessions i.e. 2017-18 and
2018-19 as infrastructure and other facilities were found to be deficient.
W.P. (C) No.442/2017 was filed in this Court, which was connected G
with WP (C) No.411/2017 in which an order was passed on 1.8.2018, to
provide an opportunity of hearing to the petitioner( s) in that case and
thereafter to pass a reasoned decision de nova. Hearing was granted,
and the Hearing Committee of the Government agreed with the aforesaid
H
202 SUPREME COURT REPORTS [2017] 13 S.C.R.
A decision of the Ministry, not to permit the college for two years. Another
writ petition was thereafter, filed in this Court by the said Prasad Education
Trust; it was withdrawn on 24.8.2017, with liberty to move the Allahahad
High Court. Thereafter, a writ petition was filed on 25.8.2017 in the
High Court at Allahabad; an order was passed on 25.8.2017 itself that
the College shall not be delisted from the list of colleges notified for
B
counseling till theinext date oflisting i.e. 31.8.2017. The Medical Council
of India (MCI) filed an SLP against the said order which was disposed
on 29.8.2017 ancl permission was sought to file a petition before this
Court which was accorded. Petition was filed on 31.8.2017; the case
was listed on 11.9.2017; and, this Court ordered on 18.9.2017, that there
C . shall be no renewal for the academic session 2017-18, however, the
MCI may inspect again for the session 2018-19. No further order was
passed by this Court and accordingly the petition was disposed of. It
was for the MCI to take a decision in the matter not only for continuity
of provisional letter of permission for academic session 2016-17 and
renewal purposes only for 2018-19. No relief was granted for the current
0
academic session 2017-18.
7. On 19.9.2017, an FIR was registered against the following
persons in connection with the case :
1. Shri LM. Quddusi, retired Judge of the High Court of Odisha.
E 2. Smt. Bhawana Pandey r/o GK. New Delhi (private person)
3. Shri B.P. Yadav (private person)
4. Shri Palash Yadav (private person)
5. Shri Sudhir Giri (Private person)
F
6. Shri Biswanath Agrawala, r/o HIG - 136, Phase 1, Kanan
Vihar, Bhubaneshwar, Odisha (Private person)
7. Other unknown public servants and private persons.
8. It was alleged in the FIR, that Mr. B.P. Yadav had requested
G Justice LM. Quddusi and Smt. Bhawana Pandey to get the matter settled
in the apex Court through their contacts. They engaged Mr. Biswanath
Agarwala, a private person and a resident of Bhubaneswar, Orissa for
getting the matter settled in the apex Court. Mr. Biswanath Agrawala
claimed that he would get the matter favourably settled. He demanded
huge gratification for inducing the public servants by corrupt and illegal
H
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 203
means. Further, that Mr. B.P. Yadav, Mr. Palash Yadav, Justice I.M. A
Quddusi, Mrs. Shawana Pandey and Mr. Sudhir Giri were all likely to
meet Mr. Biswanath Agrawala for delivering the agreed illegal
gratification at Delhi shortly. The FIR was recorded on 19. 9.2017 whereas
this Court had already disposed of the matter on 18.9.2017. It is averred
in the petition that the case discloses commission of offence punishable B
under section 8 of the Prevention of Corruption Act, 1988 and section
1208 of the !PC against the named persons as well as against the
unknown public servants and private persons. It is further averred in the
petition that since the matter involves persons placed at the highest
echelons of power including justice delivery system and in subsequent
raids made by the CBI it has recovered close to Rs.2 crores in cash, the C
agency has seized Rs. I crore which the Hawala operator had handed
over to an aide of the retired Judge I.M. Quddusi.
9. There was an order passed by a Bench consisting of Hon 'hie
A.K. Sikri, J. on 10.11.2017 that the matter be placed before Hon'ble
Chief Justice oflndia for listing the matter. The matter was considered D
on administrative side by the Hon'ble Chief Justice of India and he
constituted a 5-Judge Constitution Bench which consisted of and presided
over by Hon'ble Chief Justice of India. The Constitution Bench answered
the question as a piquant. situation had arisen for listing the case by
judicial order before senior-most 5 Judges in order of seniority passed in
the present petition and the aforesaid order dated 10.11.2017 passed in E
the case ofCJAR in WP (Cr!.) No.169/2017 by Hon'ble A.K. Sikri, J.
There was variance between the orders passed by the. two Benches;
one by Court No.2 and the other presided over by Hon'ble A.K. Sikri, J.
The order in this case was passed on 9.11.2017 for listing the matter
before 5 Hon'ble Judges on Monday i.e. 13.11.2017 and Hon'ble A.K. F
Sikri, J. requested the Hon'ble Chief Justice of India to constitute an
appropriate Bench for hearing the other matter which was similar. The
matter was referred to a Constitution Bench of this Court to decide as to
what should be done in such a situation as only working day available
was 10.11.2017. The Constitution Bench held that the Hon'ble Chief
Justice of India is the master of the roster as per the decision of this G
Court in State of Rajasthan v. Prakash Chand & Ors. (1998) 1 SCC
1 wherein this Court had laid down thus :
"I) That the administrative control of the High Court vests in the
Chief Justice alone. On the judicial side, however, he is only the
first amongst the equals. H
204 SUPREME COURT REPORTS [2017] 13 S.C.R.
A (2) That th~ Chief Justice is the master of the roster. He alone
has the prerogative to constitute benches of the court and allocate
cases to the benches so constituted.
(J) That the puisne Judges can only do that work as is allotted to
them by the Chief Justice or under his directions.
B ( 4) That till any determination made by the Chief Justice lasts, no
Judge who is to sit singly can sit in a Division Bench and no Division
Bench can be split up by the Judges constituting the bench
themselves and one or both the Judges constituting such bench sit
singly and take up any other kind ofjudicial business not otherwise
c assigned to them by or under the directions of the Chief Justice.
Xxxxx
( 6) That the puisne Judges cannot "pick and choose" any case
pending in the High Court and assign the same to himself or
themselves for disposal without appropriate orders of the Chief
D Justice.
(7) That no Judge or Judges can give directions to the Registry
for listing any case before him or them which runs counter to the
directions given by the Chief Justice."
10. A Constitution Bench of this Court held that what has been
E
laid down in Prqkash Chand (supra) would apply proprio vigore as
regards the power of the Hon'ble Chief Justice oflndia. Though the
Hon'ble Chief Justice is the first among equals as far as the roster is
concerned, the Hon'ble Chief Justice of India has the prerogative to
constitute the Benches of the Court and allocate cases to the Benches
F so constituted. Following observations have been made by the Constitution
Bench of this Court :
"The aforesaid position though stated as regards the High Court,
we are absolutely certain that the said principle is applicable to
the Supreme Court. We are disposed to think so. Unless such a
G position is clearly stated, there will be utter confusion. Be it noted,
this has been also the convention of this Court, and the convention
has been so because of the law. We have to make it clear without
any kind of hesitation that the convention is followed because of
the principles oflaw and because ofjudicial discipline and decorum.
Once the Chief Justice is stated to be the master of the roster, he
H
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 205
alone has the prerogative to constitute Benches. Needless to say, A
neither a two-Judge Bench nor a three-Judge Bench can allocate
the matter to themselves or direct the composition for constitution
of a Bench. To elaborate, 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 B
the Bench. We reiterate such an order cannot be passed. It is not
countenanced in law and not pennissible.
An institution has to function within certain parameters and
that is why there are precedents, rules and conventions. As far as
the composition of Benches is concerned, we accept the principles
stated in Prakash Chand (supra), which was stated in the context
c
of the High Court, and clearly state that the same shall squarely
apply to the Supreme Court and there cannot be any kind of
command or order directing the Chief Justice of India to constitute
a particular Bench."
11. The order passed by the Division Bench of this Court on D
9.11.2017 in this matter has been rendered ineffective and the Hon'ble
Chief Justice oflndia has constituted 3 Judge Bench to hear the matter
on 13 .11.2017. Thus it has been heard by the Bench as formed by Hon'ble
ChiefJustice oflndia
12. It was urged by Shri Shanti Bhushan, learned senior counsel, E
and Mr. Prashant Bhushan, learned counsel for the petitioner, that, this
Bench could not hear the matter, as it has been constituted by Hon'ble
Chief Justice of India. The order passed by a Constitution Bench of this
Court on 10.11.2017, in the case ofCJAR, that Hon'ble ChiefJustice of
India would assign the present matter to an appropriate Bench - that F
pronouncement cannot be made by a judicial order; that order cannot
hold the field. The order dated 9.11.2017 passed by Court No.2 should
prevail, and the matter is required to be heard by the 5 senior-most
Judges of this Court in the order of seniority. A judicial order cannot be
violated, and it could not have been rendered ineffective by the
Constitution Bench decision of this Court dated I 0.11.2017. Prayer was G
also made that though there is no allegation against one of the Hon'ble
Judges comprising this Bench (one ofus) as Hon'bleA.M. Khanwilkar,
J. was a member of the Bench which disposed of the matter of Prasad
Education Trust vide order dated 18.9.2017, he should recuse from the
matter. No written application has been filed for his recusal from hearing. H
206 SUPREME COURT REPORTS [2017] 13 S.C.R.
A Ms. Kamini Jaiswal has also submitted certain points for consideration
in writing in which,, it has been urged, that the whole intention and objective
of the petition was, and is, to protect the independence, integrity and
reputation of the Institution, the Supreme Court, by seeking constitution
of SIT headed by retired Chief Justice of India. Further, not even a
single allegation l)as been made against any member of the judiciary,
B
leave alone the Hon'ble Chief Justice of India or any Supreme Court
Judge. Explanation has been given as to how a member of CJAR could
file a petition even when her organization had filed a similar petition
before; submitting that a memberofthe organization is entitled to exercise
right separately in her own right to file a petition separate from the
c organization. Further, that Article 144 of the Constitution renders it
impermissible for a different Bench of the Supreme Court, even if it is a
Bench of the Hon''ble Chief Justice of India, to overrule an order passed
by another Bench of the Supreme Court, as orders passed by the Supreme
Court are binding, under Article 144 of the Constitution, even upon the
Hon 'ble Chief Ju~tice oflndia and other Benches of the Supreme Court
D
as held in Rupa Ashok Hurra v. Ashok Hurra & Anr. (2002) 4 SCC
388. She has reiterated that Hon'ble Khanwilkar, J. ought to have recused
himself from hearing this case as he was one of the Judges hearingthe
matter relating to tnedical bribery scam alleged in the FIR registered by
the CBI.
E 13. It was submitted by Shri K.K. Venugopal, learned Attorney
General for India, appearing in his official capacity, that such a petition
as the present one cannot be entertained. The petitioner has unnecessarily
cast doubt on the entire system. If an unscrupulous person does or says
anything irresponsible and illegal, and demands a bribe in the name of a
F Judge, the whole system cannot be brought under disrepute. There is
absolutely no material to link the highest judiciary of the country with the
so called act of Retired Justice J.M. Qudussi and the persons named in
the FIR. Thus the petition being wholly unnecessary, deserves to be
dismissed. Better it was that not to prefer such a petition.
G He has relied upon the decision rendered by the United States
Supreme Court, in the case of Bradley v. Fisher 80 US 335 (1871). It
has been held thus:
''12. Some just observations on this head by the late Chief Justice
Shaw, will be found in Pratt v. Gardner, [ 2 Cushing, 68.] and the
point here was adjudged in the recent case of Fray v. Blackburn,
H
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 207
[ 3 Best & Smith, 576.) by the Queen's Bench ofEngli... u. Line A
of the judges of that bench was sued for a judicial act, and on
demurrer one of the objections taken to the declaration.was, that
it was bad in not alleging malice. Judgment on the demurrer having
passed for the defendant, the plaintiff applied for leave to amend
his declaration by introducing an allegation ofmalice and corruption;
B
but Mr. Justice Compton replied: 'It is a principle of our law that
no action will lie against a judge of one of the superior courts for
a judicial act, though it be alleged to have been done maliciously
and corruptly; therefore the proposed allegation would not make
the declaration good. The public ate deeply-interested in this rule,
which indeed exists for their benefit, and was established in order c
to secure the independence of the judges, and prevent them being
harassed by vexatious actions;' -and the leave was refused. [ In
Scott v. Stansfield (3 Law Reports, Exchequer, 220), a judge of a
county court was sued for slander, and he put in a plea that the
words complained of were spoken by him in his capacity as such
D
judge, while sitting in his court, and trying a cause in which the
plaintiff was defendant. To this plea a replication was filed, that
the words were spoken falsely and maliciously, and without any
reasonable, probable, or justifiable cause, and without any
foundation whatever, and not bon a fide in the discharge of the
defendant's duty as judge, and were wholly irrelevant to the matter E
before him. To the replication the defendant demurred; and the
Court of Exchequer held the demurrer well taken. 'I am of opinion,'
said the Chief Baron, 'that our judgment must be for the
defendant. The question raised upon this record is whether an
action is maintainable against the judge of a county court, which
F
is a court of record, for words spoken by him in his judicial
chatacter, and in the exercise of his functions as judge in the
court over which he presides, where such words would as against
an ordinary individual constitute a cause of action, and where
they are alleged to have been spoken maliciously and without
probable cause, and to have been irrelevant to the matter before G
him. The question arises, perhaps, for the first time, with reference
to a county court judge, but a series of decisions uniformly to the
same effect, extending from the time of Lord Coke to the present
time, establish the general proposition that no action will lie against
a judge for any acts done or words spoken in his judicial capacity
H
208 SUPREME COURT REPORTS (2017] 13 S.C.R.
A in a cumt ufjustice. This doctrine has been applied not only to the
superior courts, but to the court of a coroner, and to a court martial,
which is nut a court of rncord. It is essential in all courts that the
judges who are appointed to administer the law should be permitted
to administer it under the protection of the law, independently and
freely, withcllUt favor and without fear. This provision of the law is
not for the protection or benefit of a malicious or corrupt judge,
but for the benefit of the public, whose interest it is that the judges
should be at liberty to exercise their functions with independence,
and without fear of consequences."
14. Shri Tushar Mehta, learned Additional Solicitor General,
c appearing on behalf of the Government of India, has submitted, that it
was wholly improper to file two successive petitions in this Court seeking
similar relief. No disclosure has been made in the second petition about
filing of the earlier petition for the same cause of action and reliefs.
Similar petitions with the same set of Advocates were filed and
D unfortunately the prayer was made on both days by Shri Dushyant Dave,
learned senior counsel of this Court to list the matters, and such
successive petitions identically worded could not have been filed in this
Court. It was clearly a case of forum hunting. The fact that case of
CJAR was already listed before a Bench presided by Hon'ble A.K.
Sikri, J., it was highly improper to file another petition and seek its hearing
by Court No.2 on the said very day i.e. 9.11.2017 at 12.45 p.m. There
was ::10 tearing urgency in the matter to do so. Unnecessarily, the
Institution has been brought to be scandalized for no good cause. The
petition and entire, conduct aims at bringing disrepute to this Court without
any rhyme or reason. The President of the Supreme Court Bar
F Association (SCBA), Mr. Suri, was also present. They have submitted
that the SCBA has already placed its point of view while its case was
heard by a Constitution Bench of this Court, in that they have opposed
filing of such petitions. That petition brings disrepute to this Court, and it
was a contemptuous act. Their stand was that, such petition ought not to
have been preferred and, action be taken against the concerned
G indiv•duals.
15. Firstly, we consider the question whether we can hear the
matter as the Bench has been formed by Hon 'ble Chief Justice of India
in exercise of his administrative power. That issue stands concluded by
the decision of5-Judge Bench of this Court. The Constitution Bench of
H
KAMINJ JAISWAL v. UNION OF INDIA & ANR. 209
this Court has clearly held that Hon'ble Chief Justice of India is the A
master of the roster, and any order which had been passed contrary to
the order of the Constitution Bench, was held to be ineffective in law,
not binding on the Hon'ble Chief Justice of India. The Hon'ble Chief
Justice of!ndia has constituted a Bench on administrative side after the
aforesaid decision of this Court in which, this precise question, as to the
B
competence of the ChiefJustice to constitute a Bench, has been decided;
as such, the submission made by Shri Shanti Bhushan, learned senior
counsel, is hereby rejected. We cannot reopen this issue. The decision is
binding.
16. It was submitted, thatArticle 144 of the Constitution of India
binds this Court and, renders it impennissible, for any other Bench of the
c
Supreme Court, even if it is a Bench presided by Hon'ble ChiefJustice
of India to overrule an order passed by another Bench of the Supreme
Court. All orders passed by the Supreme Court are binding under Article
142 of the Constitution oflndia, even upon the ChiefJustice of India and
other Benches of the Supreme Court, as held in Rupa Ashok Hurra D
(supra). The submission so raised is totally devoid of substance, as a
Constitution Bench of this Court has decided the question that no such
order, constituting a particular Bench, can be passed; that would include
the order dated 9.11.2017, passed by Court No.2, in WP (Cr!.) No.176/
2017. It cannot hold the field in view of the decision of Constitution
Bench of this Court, which expounds that the Hon'ble Chief Justice of E
India has the prerogative to constitute a Bench, notwithstanding any
judicial order passed to the contrary. As a matter of fact, there is no
question of applicability of Article 144or142 in this case. In case they
are attracted, it is the decision of the Constitution Bench that is binding
on all concerned, as the precise question has been dealt with by the F
Constitution Bench of this Court in the aforesaid case ofCJAR.
17. An unprecedented situation has been created by the judicial
order dated 9.11.2017. The present petition was filed on 9.11.2017, a
similar petition, filed by CJAR, had been mentioned on 8.11.2017 by
same set of counsels before Court No.2 as the Hon'ble ChiefJustice of G
India was presiding the Constitution Bench. Obviously, mentioning could
have been made before Court No.2; but, when mentioning had been
done in a similar matter filed by CJAR by Mr. Dnshyant Dave, learned
senior counsel and Mr. Prashant Bhushan, learned counsel, as is apparent
from the order of mentioning, and the case had been ordered to be listed
H
210 SUPREME COURT REPORTS [2017] 13 S.C.R.
A on Friday, i.e. 10.11.2017, and the petition filed by CJAR was listed
before the Bench ofHon'ble Sikri, J., to file and mention this similarly
worded identical petition on the next day with a similar relief; it was
mentioned, by one of the same senior counsel, Mr. Dushyant Dave,
before Court No.2, requesting to take it up on the same day. That clearly
amounted to forum hunting. There was absolutely no urgency in the
B
matter to make the mention again by filing the petition on 9.11.2017
itself. They wanted the matter not to be heard by another Bench of this
Court presided by Hon'bleA.K. Sikri, J. Reasons were asked for by us
as to why two p~titions were filed. Shri Prashant Bhushan, learned counsel
has explained the filing of second petition thus : that the Registry had
c informed him that the matter was not to be listed before Court No.2 on
Friday, but before Hon'ble A.K. Sikri, J., as per the administrative
instructions ofHon'ble Chief Justice of India. Therefore, fresh petition
was filed by Ms. Karnini Jaiswal. This could not have been the valid
reason to file a fresh writ petition identically worded as suggested by
Shri Prashant Bhushan, learned counsel appearing on behalf of the
D
petitioner though Ms. Kamini Jaiswal, learned counsel, in the written
note, which she has submitted after hearing was over, has tried to explain
that a member of an organization is entitled to exercise her right to file a
petition separately from the organisation. Be that as it may. Even if
petition could have been filed, being, arguendo, within the right of a
E member of an organisation to file such separate petition, but, there could
still not have been any forum hunting in the method and manner it has
been done to create ripples in this Court, by indulging in this exercise of
filing the second petition on the very next day, thereafter, mentioning it
on the same day, for the member to exercise her right. Even the petitioner
is member of organization CJAR is not relevant or material but the fact
F
remains that similar identically worded petition has been filed by petitioner.
It was not proper to request Court No.2 to take up the matter when the
other matter filed by CJAR was coming up on Friday before another
Bench. At the most the prayer could have been to list the said petition
along with the matter filed by CJAR which was coming up for hearing
G on Friday, 10.11.2017 before Hon'ble Sikri, J.
18. Prayer has been made before us that Hon'ble Chief Justice
of India should not have assigned the matter to 3-Judge Bench, and
there was a judicial order of formation of Bench of 5 Judges in order of
seniority which would include Hon'ble Chief Justice oflndia also. On
H
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 211
the one hand, the judicial order included Hon'ble the Chief Justice of A
India to hear this matter on merits while, on the other hand, prayer is
being made in the application filed today i.e. 13.11.2017 as well as by
learned counsel appearing on behalf of the petitioner that Hon 'ble the
Chief Justice of India should neither hear the matter, nor assign it on the
administrative side. There is a contradiction in the order passed by Court B
No.2 on 9.11.2017 andin their submission.
19. As a matter of fact, this controversy has been set at rest that
even when there is an allegation against Hoa'ble Chief Justice of India,
it is he, who has to assign the case to a Bench, as considered appropriate
by him. This has not only been settled by the Constitution Bench in
CJAR (supra) vide aforesaid order dated 10.11.2017 but, this question c
also arose in the matter of Dr. D C Saxena v. Chief Justice of India
(1996) 5 SCC 216, decided by a 3-Judge Bench of this Court wherein;
the petitioner Dr. DC Saxena, filed a public interest litigation which was
heard by Hon'ble Chief Justice of India and two other Judges. The then
Chief Justice oflndia and the two other Judges summarily dismissed the D
petition which triggered the petitioner to file another petition; that got
posted before a Bench of 3 Judges. Scandalous averments were made
in the petition against the Hon'ble Chief Justice oflndia. The second
writ petition was also dismissed and, thereafter, this Court issued a show
cause notice after dismissing the writ petition as to why contempt
proceedings should not be initiated against him, as the persistent E
contumacious conduct of the petitioner had been to scandalize the court.
It was submitted by the petitioner that contempt could not be initiated as
the constitution of the Bench by the ChiefJustice oflndia was in violation
of principles of natural justice as no one can be a Judge in his own
cause. The often cited proposition that, Justice should not only be done F
but should manifestly and undoubtedly seem to have been done, and that
nothing is to be done which creates a suspicion that there has been
improper interference in the course of justice, had been raised by the
petitioner in an unsuccessful attempt to take refuge under these
propositions for his conduct. In spite of the objection Hon 'ble Chief
Justice of India not to constitute a Bench, the Chief Justice of India G
chose to constitute a Bench, with the Hon'ble Chief Justice himself as
the presiding Judge. According to the petitioner the order passed by the
Bench of Hon'ble Chief Justice of India was required to be ignored.
This Court has laid down that the assertion that the first writ petition
H
212 SUPREME COURT REPORTS (2017] 13 S.C.R.
A was not dismis$ed in the eye of law, tends to question the authority of
the court. This Court has observed thus :
"51. It would, thus, be seen that when the first writ petition was
dismissed by this Court, as a responsible citizen, the petitioner
should have kept quiet. When the result animated by the petitioner
B was not achieved, he embittered to foul at the process of this
Court and emboldened to file the second writ petition with
imputation made against this Court, in particular targeting the Chief
justice of india, Justice A.M. Ahmadi. As stated hereinbefore and
need not 'be reiterated once over that it is the duty of the Court to
hear and decide any matter posted for admission. Therefore, there
c is nothing improper for the first Court presided over by the Chief
justice of india to hear and decide the matter. When it came up
for admission, the Court appears to have 'been persuaded to
ascertain the correctness of the allegations made in the writ
petition. This Court obviously before issuing notice had sent for
D and directed the Solicitor General to obtain the information from
the Government as to the correctness of the allegations made
before deciding whether the Court would exercise its prerogative
power under Article 32 to issue directions as sought for. In
furtherance thereof, the Solicitor General admittedly placed before
the Court the record. On perusal thereof, the first Court had
E declined to exercise the power as enumerated and obviously stated
by the petitioner that the exercise of the power under Article 32
was not appropriate since the Government in the Defence
Department could recover from the Prime Minister's Secretariat
or from the Congress Party, as the case may be, all the arrears, if
F any, due and payable by the respective entities. It is not obligatory
for this Court to give reasons for dismissing the writ petition. Day
in and day out in countless cases, while refusing to interfere with
the orders this Court dismisses the petitions be they filed under
Article 32 or 136 of the Constitution in limine. It is also seen that
though the case was adjourned for two weeks, no doubt, it was
G not posted on that day but it was listed sometime thereafter. In
the proceedings of the Court recorded by the staff, it was recorded
that the Solicitor General for India appeared in the Court in his
official capacity. Shri Dipankar Gupta as Solicitor General or in
personal capacity obviously acted as amicus on behalf of the Court.
H
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 213
Being the Solicitor General for India, he was directed to have A
consultation with Government Departments and to obtain needed
information. In appropriate cases this procedure is usually adopted
by the Comi. Recording of the proceedings by the Court generally
is not noted by the Court. Is it improper for the Chief Justice to
hear the case? Was the dismissal totally unjust and unfair for not
B
recording the reasons? The petitioner obviously with half-baked
knowledge in law mixed up the language as "improper for Chief
justice of india to hear it", "Dismissal of the 'grouse' of the
petitioner was totally unjust, unfair, arbitrary and unlawful, flagrant
violation of mandate of Article 14", "Violation of the sacred oath
of office" and to "declare Justice A.M. Ahmadi unfit to hold the c
office as Chief justice of india". When these imputations were
pointed out to the petitioner by a three-Judge Bench presided over
by brother Verma, J. while dismissing the second writ petition, to
be scandalous and reckless, he had stated that he "stood by" those
allegations. He reiterated the same with justification in his
D
preliminary submissions. He has stated that the accusations made
were truthful and 'carefully' worded. In this backdrop scenario,
the effect of these imputations is obviously reckless apart from
scandalising this Court, in particular the Chiefjustice of india and
was intended to foul the process of the Court or lower or at any
rate tends to lower the authority of the Court in the estimate of E
the public and tends to undermine the efficacy of the judicial
process. It would, therefore, be clear that the accusations are
gross contempt. At the height of it, he stated that since the first
writ petition was not disposed of by a Bench ofnot less than five
Judges, the writ petition was not dismissed in the eye of law and
F
the order of dismissal is non est and it is "not decided and disposed
of constitutionally''. This assertion of the petitioner flies in the
face of the judicial finality of the order of this Court and the
assertion tends to question the authority of the Court. It creates
tendency to obstruct the administration ofjustice and, therefore, it
would be an outrageous criminal contempt." G
20. This Court also considered the allegation whether the Chief
Justice could not constitute the Benches, where imputations were made
against him; this was also held aggravate the contempt. This Court has
laid down that when imputations were made against the Chief Justice, it
H
214 SUPREME COURT REPORTS [2017] 13 S.C.R.
A is the prerogative of the Chief Justice to constitute the Benches and
assign judicial business, and it would not hinge on the whim of the litigant.
This Court has observed :
"26. When imputations were made against the Chief Justice, The
petitioner assumed, in our view, "wrongly" that the CHIEF
B JUSTIC.Et OF INDIA 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 CHIEF JUSTICE OF INDIA becomes entitled
to discharge the functions and duties of that office including
constitution of benches and assignment ofjudicial work to judges
c 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
D
..
Justice's prerogative to constitute benches and assignment of
judicial business would not hinge on the whim of a litigant.
27. The ~ecisions of different benches are the decisions of the
Court. For the convenient transaction of business, the senior Judge
among the members composing the bench gets the privilege to
preside otver the bench but the decision is that of the Court. The
E members composing the bench collectively speak for the Court
and would bear collective responsibility for the decision unless
separate opinions are expressed by individual members composing
the bench. Majority opinion is the law as envisaged under Article
145(5) ofthe Constitution. Their opinion or order thus is the opinion
or order of the Court. The minority opinion also would form part
F of the judgment or order but remains the minority view. The Chief
Justice is first among the colleagues."
"52. Omission to record reasons, according to the petitioner, is
violative of the principles of natural justice. The Chief justice of
india has committed impropriety in deciding the matter. As stated
G earlier, the decision is that of the Bench on behalf of the Court
and the Chief Justice, being the seniormost among the members
constituting the Bench, had spoken on behalf of the Bench.
Therefore, the attribution of improper motives scandalises the
efficacy ofjudicial adjudication and per se contumaciously lowers
or at any rate tends to lower the dignity or authority of the Court.
H
KAMIN! JAISWAL v. UNION QF INDIA & ANR. 215
The prayer for prosecution of the Chief Justice, though sought in A
Item 14(a) and (d) to be withdrawn, which would be of no
consequence, is, therefore, unbelievably outrageous contempt.
61. Item 13 relates to the interference with the judicial management
of the Court and the duty of a Judge. When an accusation is
made against the presiding Judge, by implication, until the matter B
is decided, the Presiding Officer has to desist from discharging
the judicial duties by his proceeding on leave and the seniormost
puisne Judge would assume the office of the Chief Justice. This
is a deliberate interference in the judicial management tending to
sow disaffection in the efficacy of dispensation of justice. The
further accusation that the Chief Justice of India should not C
constitute a Bench of the Judges appointed during his tenure so
that "he (Chief Justice oflndia)" "may not directly or indirectly
influence any of the Judges hearing the matter". It would, thus,
be in unequivocal loud expression that the conternnor attributed
motives to the Chief Justice of India that the Judges appointed D
during his tenure as Chief Justice are amenable to his influence in
judicial adjudication and would decide the causes by pressure or
influence directly or indirectly brought by the Chief Justice of
India. Equally, it is a corollary that these Judges are amenable to
influence and thereby they do not decide the cases posted before
them legally and objectively. The Court is subject to pressures E
and decides cases under influence. These accusations are
flagrantly outrageous to scandalise the Court. Though the
contemnor has sought leave to modify this statement, ultimately,
in his amended statement, he did not touch upon this aspect of the
matter. In other words, as stated earlier, he stood by his averments F
calculatedly made. His justification that Justice P.N. Bhagwati
(as he then was) decided first S.P. Gupta case when allegations
against Chief Justice of India Chandrachud were made has no
application. In a judicial proceedings taken by this Court, the office
of the Chief Justice of India was directly involved in appointment
of additional Judges or extension of their tenure as additional Judges G
or their transfer. The ChiefJustice oflndia reclused himself from
the Bench; resultantly, the senior most puisne Judge came to
preside over that Bench. Thus, the contemnor has committed the
contempt of this Court under Article 129 of the Constitution."
H
216 SUPREME COURT REPORTS [2017] 13 S.C.R.
A 21. This Court has also laid down in Dr. DC Saxena (supra) that
it was the duty of the Chief Justice to assign judicial work to brother
Judges. By doing so, he did not become a Judge i11 his own cause. It is
contempt to imply that the Chief Justice would assign it to a Bench
which would not pass an order adverse to him. It is also contempt to
imply that the Judges would be so amenable to comply that the Bench
B
which heard the second writ petition could not have heard it. This Court
has laid down these allegations aimed at bringing the administration of
justice in disrepute. This Court has observed:
"81. It is the duty of the Chief Justice of a court to assign judicial
work to his brother Judges. It was, therefore, the duty of the
c respondent to assign the second writ petition to a Bench to hear
it. By doing so he did not, as is alleged, become a Judge in his own
cause. It is contempt to imply, as the alleged contemnor does, that
the respondent would assign it to a Bench which would not pass
an order adverse to him. It is also contempt to imply that Judges
D would be so amenable. To plead that the Bench that heard the
second writ petition could not have heard it and, therefore, could
not have dismissed it and that it is deemed to be still pending is to
add to the contempt. These allegations are also aimed at bringing
the administration of justice into disrepute."
E 22. The submissions so raised, and averments so made, in this
petition, and the entire scenario created by filing of two successive
petitions, are really disturbing a lot. The entire judicial system has been
unnecessarily brought into disrepute for no good cause whatsoever. It
passes comprehension how it was, that the petitioner presumed, that
there is an FIR lodged against any public functionary. There is an averment
F made in the writ petition that it is against the highest judicial functionaries;
that FIR has been recorded. We do not find reflection of any name of
the Judge of this Court in the FIR. There is no question of registering
any FIR against any sitting Judge of the High Court or of this Court as it
is not permissible as per the law laid down by a Constitution Bench of 5
G Hon'ble Judges of this Court in the case of K. Veeraswami v. Union of
India (1991) 3 SCC 655 wherein this Court observed that in order to
ensure the independence of the judiciary the apprehension that the
Executive being largest litigant, it is likely to misuse the power to prosecute
the Judges. Any complaint against a Judge and investigation by the CBI
if given publicity, will have a far reaching effect on the Judge and the
H
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 217
litigant public. The need, therefore, is of judicious use of action taken A
under the Act. There cannot be registration of any FIR against a High
Court Judge or Chief Justice of the High Court or the Supreme Court
Judge without the consultation of the Hon'ble Chief Justice oflndia and,
in case there is an allegation against Hon 'ble Chief Justice of India, the
decision has to be taken by the Hon'ble President, in accordance with
B
the procedure prescribed in the said decision. Thus, the instant petitions,
as filed, are a misconceived venture inasmuch, as the petition wrongly
presupposes that investigation involves higher judiciary, i.e. this Court's
functionaries are under the scanner in the aforesaid case; that
independence of judiciary cannot be left at the mercy of the CBI or that
of the police is a red herring. There cannot be any FIR even against the c
Civil Judge/Munsif without permission of the Chief Justice of the
concerned court; and rightly, FIR has not been registered against any
sitting Judge. Otherwise, on unfounded allegations, any honest Judge to
the core, can be defamed, and reputation can be jeopardized. No Judge
can be held responsible for what may, or has happened in the corridors,
D
or for 'who purports to sell whom'. The alleged actions of a retired
Judge of a High Court, allegedly assuring and promising, a 'favourable'
decision in the aforesaid circumstances of the case which was then
pending before this Court, in the aforesaid circumstances and has assured
favourable orders, begs the question, and we wonder, as to what
favourable orders have been passed. As is apparent from the aforesaid E
narration of facts, there was no favourable order granted by this Court
in favour of the medical college for the current academic session 2017-
18, rather its inspection for considering confirmation ofletter of permission
for the next year 2018-19 had been ordered. The decision will be in the
hands of the MCI. After decision has been rendered on 18.9.2017 by
F
this Court, an FIR has been lodged and.it appears that money was yet to
be exchanged. The FIR dated 19.9.2017 reflects that Mr. B.P. Yadav,
Justice Quddusi, Ms. Bhawana Pandey, and Mr. Sudhir Giri were likely
to meet Mr. Biswanath Agarwala for getting favourable order at Delhi
shortly; whereas this Court has already decided the matter on 18.9.2017.
Thus it is a far fetched and too tenuous to even assume or allege that the G
matter was pending in this Court for which any bribe was to be delivered
to anyone.
23. There is no conflict of interest in such a matter. In case Judge
is hearing a matter and if he comes to know that any party is
H
218 SUPREME COURT REPORTS [2017] 13 S.C.R.
A unscrupulously trying to influence the decision making or indulging in
ma! practices, it is incumbent upon the Judge to take cognizance of such
a matter under Contempt of Courts Act and to deal with and punish such
person in accordance with law as that is not the conflict of interest but
the purpose for which the entire system exists. Such things cannot be
ignored and recusal of a Judge cannot be asked on the ground of conflict
B
of interest, it would be the saddest day for the judicial system of this
country to ignore1such aspects on the unfounded allegations and materials.
It was highly improper for the petitioner to allege conflict of interest in
the petition filecl that the Hon 'ble Chief Justice of India should not hear
on judicial side or allocate the matter on the administrative side. ltappears
c that in order to achieve this end the particular request has been made by
filing successive petitions day after the other and prayer was made to
avoid the Hon'ble Chief Justice of India to exercise the power for
allocation of cases which was clearly an attempt at forum hunting and
has to be deprecated in the strongest possible words. Making such
scandalous remarks also tantamount to interfering with administration
D
of justice, an advocate cannot escape the responsibility on the ground
that he drafted the same in his/her personal capacity as laid down in
Shamsher Singh Bedi v. High Court of Punjab & Haryana ( 1996) 7
SCC 99. In Charan Lal Sahu v. Union ofIndia (1988) 3 SCC 255, this
Court has observed that in a petition filed under Article 32 in the form of
E PIL attempt of mudslinging against the advocates, Supreme Court and
also against the other constitutional institutions indulged in by an advocate
in a careless manner, meaningless and as contradictory pleadings, clumsy
allegations, contempt was ordered to be drawn. The Registry was directed
not to entertain any PIL petition of the petitioner in future.
F 24. In R. K. Anand v. Delhi High Court (2009) 8 SCC 106, this
Court observed that there could be ways in which conduct and action of
malefactor was professional misconduct. The purity of the court
proceedings has to be maintained. The Court does not only have the
right but also an obligation to protect itself and can bar the malefactor
from appearing before the Court for an appropriate period of time. There
G is a duty cast upon an Advocate to protect the dignity of this Court not to
scandalize the very institution as observed in the said decision.
25. In Leila David v. State of Maharashtra (2009) 10 SCC 337
this Court observed that making of scandalous remarks against High
Court Judges and seeking their punishment on the allegation of their
H
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 219
being party to genocide petition was dismissed and incumbent was A
pnnished. Scandalous allegation cannot be made against the Judges as
observed in Amrik Singh v. State (Delhi Admn.) ( 1971) 3 SCC 215. In
Bal Kishan Giri v. State of U.P (2014) 7 SCC 280 this Court has
observed that the allegation that the accused had the links with 3 Judges
of the High Court who would favour in getting the bail, this Court held B
that such allegations are too serious, scandalous and admittedly sufficient
to undermine the majesty oflaw and dignity of the court amounting to
contempt. Plea by conternnor a practicing lawyer that he was misguided
by another advocate is an afterthought. He must since have been fully
aware of the consequence of allegations made by him. Sentence of
simple imprisonment was imposed by the High Court and the same was c
confirmed by this Court. This Court has also observed that the power
for contempt is a rule specified which by very nature calls for exercise
with great care and caution and such power ought to be exercised only
where silence is nothing but an option. The power to punish for contempt ·
is to secure public respect and care for judicial process.
D
26. This Court considered various categories of forum shopping
in Union of India & Ors. v. Mis. CJPLA Ltd. & Am: (2017) 5 SCC
262. Even making allegations of a per se conflict of interest require the
matter could be transferred to another Bench, has also been held to be
another form of forum hunting. This Court has considered various
decisions thus : E
"146. The learned Solicitor General submitted that Cipla was guilty
of forum shopping inasmuch as it had filed petitions in the Bombay
High Court, the Kamataka High Court and also an affidavit in the
Delhi High Court as a member of the Bulk Drug Manufacturers
Association and had eventually approached the Allahabad High F
Court forreliefresulting in the impugned judgment and order dated
3-3-20041. It was submitted that since Cipla had approached
several constitutional courts for relief, the proceedings initiated in
the Allahabad High Court clearly amount to forum shopping.
147. We are not at all in agreement with the learned Solicitor G
General. Forum shopping takes several hues and shades and
Cipla's petitions do not fall under any category of forum shopping.
148. A classic example of forum shopping is when a litigant
approaches one Court for relief but does not get the desired relief
220 SUPREME COURT REPORTS [2017] 13 S.C.R.
A and then approaches another Court for the same re lief. This
occurred in Rajiv Bhatia v. Govt. (NCTofDelhi). The respondent
mother of a young child had filed a petition for a writ of habeas
corpus in the R.ajasthan High Court and apparently did not get the
required relief from that Court. She then filed a petition in the
Delhi High Court also for a writ of habeas corpus and obtained
B
the necessary relief. Notwithstanding this, this Court did not
interfere with the order passed by the Delhi High Court for the
reason that this Court ascertained the views of the child and found
that she did not want to even talk to her adoptive parents and
therefore the custody of the child granted by the Delhi High Court
c to the respondent mother was not interfered with. The decision of
this Court is on its own facts, even though it is a classic case of
forum shopping .
.149. In Arathi Bandi v. Bandi Jagadrakshaka Rao this Court
noted that jurisdiction in a court is not attracted by the operation
D or creation of fortuitous circumstances. In that case, circumstances
were created by one of the parties to the dispute to confer
jurisdiction on a particular High Court. This was frowned upon by
this Court by observing that to allow the assumption ofjurisdiction
in created circumstances would only result in encouraging forum
shopping.
E
150. Another case of creating circumstances for the purposes of
forum shopping was World Tanker Carrier Corpn. v. SNP
Shipping Services (P) Ltd. wherein it was observed that the
respondent/plaintiff had made a deliberate attempt to bring the
cause of action, namely, a collision between two vessels on the
F high seas within the jurisdiction of the Bombay High Court.
Bringing one of the vessels to Bombay in order to confer
jurisdiction on the Bombay High Court had the character of forum
shopping rather than anything else.
151. Another form of forum shopping is taking advantage of a
G view held by a particular High Court in contrast to a different
view held by another High Court. In Ambica Industries v. CC Ell
the assessec was from Lucknow. It challenged an order passed
by the Customs, Excise and Service Tax Appellate Tribunal
("CESTAT") located in Delhi before the Delhi High Court. Cestat
H had jurisdiction over the State of Uttar Pradesh, NCT of Delhi
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 221
and the State of Maharashtra. The Delhi High Court·did not A
entertain the proceedings initiated by the assessee for want of
territorial jurisdiction. Dismissing the assessee 's appeal this Court
gave the example of an assessee affected by an assessment order
in Bombay invoking the jurisdiction of the Delhi High Court to
take advantage of the law laid down by the Delhi High Court or B
an assessee affected by an order of assessment made at Bombay
invoking the jurisdiction of the Allahabad High Court to take
advantage of the law laid down by it and consequently evade the
law laid down by the Bombay High Court. It was said that this
could not be allowed and circumstances such as this would lead
to some sort of judicial anarchy. c
152. Yet another form of forum shopping was noticed in
Jagmohan Bahl v. State (NCT of Delhi) wherein it was held
that successive bail applications filed by a litigant ought to be heard
by the same learned Judge, otherwise an unscrupulous litigant
would go on filing bail applications before different Judges until a D
favourable order is obtained. Unless this practice was nipped in
the bud, it would encourage unscrupulous litigants and encourage
them to entertain the idea that they can indulge in forum shopping,
which has no sanction in law and certainly no sanctity.
153. Another category of forum shopping is approaching different E
courts for the same reliefbymaking a minor change in the prayer
clause of the petition. In Udyami Evam Khadi Gramodyog
Welfare Sanstha v. State of U.P. it was noticed by this Court that
four writ applications were filed by a litigant and although the
prayers were apparently different, the core issue in each petition
centred round the recovery of the amount advanced by the bank. F
Similarly, substituting some petitioners for others with a view to
confer jurisdiction on a particular court would also amount to forum
shopping by that group of petitioners.
154. Finally and more recently, in Supreme Court Advocates-
on-Record Assn. v. Union of India (Recusal Matter) Khehar, G
J. noticed yet another form of forum shopping where a litigant
makes allegations of a perceived conflict of interest against a
Judge requiring the Judge to recuse from the proceedings so that
the matter could be transferred to another Judge.
H
222 SUPREME COURT REPORTS [2017] 13 S.C.R.
A 155. The decisions referred to clearly lay down the principle that
the Court is reGjuired to adopt a functional test vis-a-vis the litigation
and the litigant. What has to be seen is whether there is any
functional similarity in the proceedings between one court and
another or whether there is some sort of subterfuge on the part of
a litigant. It is this functional test that will determine whether a
B
litigant is indulging in forum shopping or not."
27. In view of the aforesaid it is clear that the submission raised
that Hon'ble Chief Justice oflndia should not hear the matter or should
not assign it on administrative side is highly improper. In our opinion
there was no impropriety in assigning this matter to this Bench rather it
c was a constitutional, imperative as per the mandate of the 5 Judge Bench,
Supreme Court Rules, 2013 as well as the decision in Dr.DC Saxena
(supra). It was an attempt of choosing a forum by submitting that Hon'ble
Chief Justice of India should not have formed the Bench. Even Court
No.2 in its order dated 9.11.2017 did not exclude Hon'ble Chief Justice
D of India from hearihg the matter.
28. Yet anotl)er disturbing feature which aggravates the situation
is that prayer has been made, that one ofus, Justice A. M. Khanwilkar,
should recuse from the matter. This is nothing but another attempt of
forum hunting which cannot be permitted. Rather this kind of prayer
E was held to be contemptuous, aggravating the contempt in the case of
Dr. D C Saxena (supra). This is yet another strategy to succeed in the
attempt that the Hon 'ble CJ! should not take up the matter himself in the
judicial side and administrative side for what may apply to and hold
good for one ofus will be equally applicable to Hon 'ble CJ!. Though it
was submitted that there is no allegation againstJ usticeA. M. Khanwilkar
F but since he decided the matter of medical college with respect to which
FIR has been lodged, he should recuse. In our opinion, rather it is the
duty of the Bench to take up such matter firmiy; such unscrupulous
allegations and insinuations cannot be allowed to be hurled by oral prayer
made on behalf of the petitioner for recusal. This is simply deprecated
G and we find that it is another attempt to bring the system in disrepute,
casting of unwarranted aspersions tantamounts to seriously jeopardizing
the independence of the judiciary.
29. Though it is true, that none ofus is above law; no person in the
higher echelons is above the law but, at the same time, it is the duty of
H
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 223
both the Bar and the Bench, to protect the dignity of the entire judicial A
system. We find that filing of such petitions and the zest, with which it is
pursued, has brought the entire system in the last few days to unrest. An
effort was made to create ripples in this Court; serious and unwanted
shadow of doubt has been created for no good reason whatsoever by
way of filing the petition which was wholly scandalous and ought not to
B
have been filed in such a method and manner. It is against the settled
proposition oflaw. Ultimately after arguing at length, at the end, it was
submitted by the petitioner and h~r counsel that they were not aiming at
any individual. If that was not so, unfounded allegations ought not to
have been made against the system and that too against the Hon'ble
Chief Justice of this country. In case majesty of our judicial system has c
to survive, such kind of petitions should not have been preferred that too
against the settled proposition of law laid down by this Court in the
aforesaid decisions of this Court in Dr. D C Saxena (supra) and K.
Vt?eraswami (supra). '
30. Submission was also made that unprecedented hearing was D
done on Friday by a Constitution Bench of this Court. It was a fait
accompli and circumstances compelled hearing on 10.11.2017 as on
Thursday in this case, order was passed bypassing the power ofHon'ble
Chief Justice oflndia to constitute a 5-Judge Bench in order of seniority
including the Hon'ble Chief Justice of India. It was not permissible as
held by this Court in CJ AR and hearing of the instant matter was E
scheduled for Monday, i.e. 13.11.2017, and Friday was the only day
available on which the law was required to be settled otherwise judicial
order was binding and it was necessary to decide the question as other
Bench had requested the Hon'ble Chief Justice of India to assign this
matter to an appropriate Bench. As Hon'ble Chief Justice of India had F
to assign it to a Bench, situation of dilemma was created for Hon'ble
Chief Justice of India whether to assign the matter of CJAR to an
appropriate Bench or to go by the judicial order by constituting a Bench
of 5 senior Judges on 13.11.2017. Thus as per the judicial order matter
was required to be heard on Monday i.e. 13.11.2017. No other working
day was intervening on which this issue was required to be settled. Thus G
a Constitution Bench was required to be constituted on the day which
was available for deciding the issue so as to decide the issue whether by
judicial order case can be assigned to a particular Bench or it is in ambit
of power of Hon'ble Chief Justice of India to assign the case. As that
H
224 SUPREME COURT REPORTS [2017] 13 S.C.R.
A issue has been settled by the Constitution Bench decision relying on an
earlier decision in the case of Prakash Chand (supra), roster making is
the prerogative of Hon'ble Chief Justice of India was laid down in the
case of Prakash Chand (supra). Besides the Supreme Court Rules,
2013 also provides that the Hon'ble Chief Justice oflndia has to assign
the case. The cases cannot be assigned by judicial order. Such judicial
B
order is simply to be ignored as it is not open to the Judges to decide
which matter is to be heard by whom as laid down by Constitution Bench.
Prayer made that the decision of the Constitution Bench is to be ignored
by us, is wholly lJilfounded and we must go by the order of the Division
Bench passed on 9.l l.2017 and we should refer the matter to 5
c seniormost Judg~s is preposterous that would include the Hon 'ble Chief
Justice oflndia also. The prayer is per se very contradictory in its nature
and has no legs to stand. Let the good sense prevail over the legal
fraternity and amends be made as lot of uncalled for damage has been
made to the great Institution in which public reposes their faith. We
deprecate the conduct of forum hunting that too involving senior lawyer
D
of this Court. Such conduct tantamounts wholly unethical, unwarranted
and nothing but forum hunting, as discussed by this Court in the case of
Cipla (supra) .
31. On behalf of the petitioner for recusal of Hon 'ble A M
Khanwilkar, J., reliance has been placed on the decision in Ranjit Thakur
E
v. Union of India & Ors. (1987) 4 SCC 611 in which it has been laid
down that reasonableness of the apprehension or bias in the mind of the
party has to be seen. We find that there is no room for the petitioner to
infer the bias. There is no reasonable basis to pray for recusal ofHon'ble
A.M.Khanwilkar, J. In our opinion that tantamount to contempt of court
F and an attempt at forum hunting. Reference has also been made to the
decision in Supreme Court Advocates on Record Association v. Union
of India (2016) 5 SCC 808 in which maxim nemo judex in causa sua
has been considered, that no man is to be judge in his own cause, should
be held sacred and that maxim is not to be confined to a case in which
he is a party but applies to a cause in which he has an interest. It is far
G fetched and too tenuous to submit that any Judge of this Court much less
Hon'ble A.M. Khanwilkar, J. has any interest in the subject matter and
for that reason in spite of there being no allegation in the writ petition,
Shri Justice A. M. Khanwilkar should recuse. There is no room for
reasonable suspicion even in remote and argument is simply too derogatory
H
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 225
to be made, probably that has been made anyhow or somehow to protect A
the case and to bring disrepute to this Court. We cannot fall prey to such
unscrupulous devices adopted by the litigants, so as to choose the
Benches, as that is a real threat to very existence of the system itself
and it would be denigrated in case we succumb to such pressure tactics.
32. The petition is liable to be dismissed and is hereby dismissed. B
Kalpana K. Tripathy Petition dismissed.
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