# KAMINI JAISWAL v. UNION OF INDIA & ANR

- **Citation:** [2017] 13 S.C.R. 189
- **Court:** Supreme Court of India
- **Decided:** 2017-11-14
- **Bench:** R. K. Agrawal, Arun Mishra, A.M. Kiianwilkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kamini-jaiswal-v-union-of-india-anr-31792
- **Pages:** 37

## Headnote

Administration of Justice:
Writ Petition u/Art. 32 of the Constitution [W.P. (Cr/.)
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
A
B
c
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
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
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)
E
F
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
189
H
190
A
B
c
D
E
F
SUPREME COURT REPORTS
[2017] 13 S.C.R.
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
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
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
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
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
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.
H
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

## Text

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[2017] 13 S.C.R. 189
KAMINI JAISWAL
v.
UNION OF INDIA & ANR.
(Writ Petition (Criminal) No.176 of2017)
NOVEMBER 14, 2017
[R. K. AGRAWAL, ARUN MISHRA AND
A.M. KIIANWILKAR, JJ.]
Administration of Justice:
Writ Petition u/Art. 32 of the Constitution [W.P. (Cr/.)
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
A
B
c
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
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
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)
E
F
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
189
H
190
A
B
c
D
E
F
SUPREME COURT REPORTS
[2017] 13 S.C.R.
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
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
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
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
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
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.
H
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
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
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)
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
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.
E
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.
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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
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E
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it on the same day, for the member to exercise her right. 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 on Friday, 10.11.2017. [Para 17[ [210-E-G]
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
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
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.
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7. The submission so raised and averments so made in this
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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
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
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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]
c
D
E
F
G
H
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
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]
1 O. 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
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
drafted the same in his/her personal capacity. [Para 23] [218-BD]
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 :
[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.
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
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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)
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
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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
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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
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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.
c
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
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
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Chief Justice of India to assign the case. As that issue has been
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)
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#State of Rajasthan v. Prakash Chand & Ors.
(1998) 1 SCC 1: [1997) 6 Suppl. SCR 1 - followed.
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
[1997] 6 Suppl. SCR 1
(2002] 2 SCR 1006
[1996] 3 Suppl. SCR 677
relied on
relied on
relied on
Para 12
Para 12
Para 19
G
H
..
198
A
B
c
SUPREME COURT REPORTS
[1991] 3 SCR 189
relied on
(1996) 7 sec 99
relied on
(1988] 1 SCR 441
relied on
[2009] 1li SCR 1026
relied on
[2009] 15 SCR 317
relied on
(1971) 3 sec 215
relied on
[2014] 6 SCR 545
[2016] 7 SCR 523
[1988] 1 SCR 512
(2016) 5 sec 808
relied on
referred to
referred to
referred to
[2017] 13 S.C.R.
Para 22
Para 23
Para 23
Para 24
Para 25
Para 25
Para 25
Para 26
Para 31
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.
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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
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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
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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
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.
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
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
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
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
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
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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 abovementioned 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
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,
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
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
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)/
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/
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
KAMIN! JAISWAL v. UNION OF !NOIA & ANR.
201
before this Court, reveals a nexus between the middlemen, Hawala
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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
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,
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
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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
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.
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
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
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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
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the College shall not be delisted from the list of colleges notified for
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
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renewal purposes only for 2018-19. No relief was granted for the current
academic session 2017-18.
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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.
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)
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
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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
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KAMIN! JAISWAL v. UNION OF INDIA & ANR.
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means. Further, that Mr. B.P. Yadav, Mr. Palash Yadav, Justice I.M.
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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
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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
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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
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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
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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.
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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
Court in State of Rajasthan v. Prakash Chand & Ors. (1998) 1 SCC
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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.
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(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.
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(J) That the puisne Judges can only do that work as is allotted to
them by the Chief Justice or under his directions.
( 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 of judicial business not otherwise
assigned to them by or under the directions of the Chief Justice.
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( 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
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
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
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
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 of judicial discipline and decorum.
Once the Chief Justice is stated to be the master of the roster, he
KAMIN! JAISWAL v. UNION OF INDIA & ANR.
205
alone has the prerogative to constitute Benches. Needless to say,
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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
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
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,
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
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
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.
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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,
leave alone the Hon'ble Chief Justice of India or any Supreme Court
Judge. Explanation has been given as to how a member of CJ AR 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
organization.