Reserving the order to be pronounced on Tuesday, the bench of Justice R.K. Agrawal, Justice Arun Mishra and Justice A.M. Khanwilkar on Monday described the conduct of the petition lawyer Kamini Jaiswal as "reckless and short on propriety which has damaged the institution".
"Damage has been done. Everybody is doubting this court," said Justice Arun Mishra, taking exception to the "urgency" and the "haste" with sending a petition with exactly the same wording as was filed earlier.
The question is "How to repair the damage", Justice Mishra asked in a poser to the counsel present in the court room.
The situation can be redeemed, Attorney General K.K. Venugopal said, by the "unconditional withdrawal of the petition" by the petitioner advocate.
The hearing lasted for an hour-and-a-half.
Referring to the petition filed by Jaiswal, the bench said, "It was a deliberate attempt to scandalise the judiciary."
Telling noted lawyer Prashant Bhushan that no FIR can be filed against a judge of a High Court or that of the top court without the consent of the Chief Justice of India and no FIR can be filed against the Chief Justice of India without a nod from the President, the bench said: "These kind of allegations are reckless and per say contemptuous", referring to an earlier three-judge bench judgment.
"We are very much concerned with the conduct and the propriety of the person who insisted that the case be heard by the bench headed by Justice J. Chelameswar."
The court on Monday told Bhushan that he was aggravating the situation, as he later tried to defend the filing of the second petition and the prayer seeking probe by a SIT headed by a former Chief Justice of India and that Chief Justice Dipak Misra should not deal with the case both in his administrative and judicial authority.
Both senior counsel Shanti Bhushan and son Prashant Bhushan on Monday defended the order passed by the bench headed by Justice Chelameswar, saying that "heavens would not have fallen" if a constitution bench of the five senior-most judges of the top court had heard the petition by Jaiswal.
Apparently contesting the position that CJI alone was the 'Master of Rolls', Shanti Bhushan said that any order passed by any bench of the top court was binding on everyone.
The NGO Campaign for Judicial Accountability and Reforms had moved the top court on November 8 seeking probe by a SIT headed by a former Chief Justice of the top court to probe the allegation of graft involving retired judge of the Orissa High Court, I.M. Quddusi, and middlemen for getting a favourable order to a Lucknow-based medical college.
The college was barred from admitting students for two academic years. Quddusi, who was Orissa High Court judge between 2004 and 2010, is alleged to have helped the private medical college admit students to MBBS courses despite the Supreme Court barring the institutes from doing so.
The petition by NGO Campaign for Judicial Accountability and Reforms was mentioned before the bench headed by Justice J. Chelameswar for an early hearing on November 8. Directing the listing of the matter on November 10 (Friday), Justice Chelameswar assigned the matter to himself.
However, by afternoon on November 8, he was informed that Chief Justice Dipak Misra had already assigned the matter to the bench of Justice A.K. Sikri and Justice Ashok Bhushan for hearing on November 10.
On November 9, another petition was filed by advocate Kamini Jaiswal which was mentioned for an early hearing by senior counsel Dushyant Dave. The said petition was taken up by the bench headed by Justice Chelameswar for hearing on November 9 itself at 12.45 p.m. and the court passed an order referring the entire matter to a constitution bench of five senior-most judges of the top court for hearing on November 13.
The order of the bench headed by Justice Chelameswar was annulled by a five-judge constitution bench that sat on Friday afternoon and ruled that the Chief Justice was the 'Master of Rolls' and he alone can decide on the composition of the different benches and the matters to be assigned to them.
It said that any order contrary to this was inactive in law and not binding on the Chief Justice of India.
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