SC wonders how its two-judge bench usurped powers of CJI

New Delhi: The Supreme Court on Friday wondered how could two of its judges usurp the power of the Chief Justice of India to set up a bench, while some lawyers alleged that an NGO and an advocate were indulging in "forum shopping".

The issue at hand was yesterday's order of the two-judge bench of Justice J Chelameswar and S Abdul Nazeer setting up a five-judge constitution bench of senior most judges of the apex court to hear a plea relating to a graft case in which a retired judge of the Orissa High Court Justice Ishrat Masroor Quddusi is an accused.

Aspertions were also cast on Chief Justice Dipak Misra, prompting him to hurriedly constitute a five-judge bench to scrutinise the decision of the bench of Justice Chelameswar.

"Have you ever seen a two-judge bench directing that a bench will be constituted like this? A two-judge bench cannot refer a matter like this to a constitution bench. It will be my discretion," the CJI said.

"How can power of the CJI be overridden? No bench can direct constitution of a constitution bench like this," the bench, also comprising Justices R K Agrawal, Arun Mishra, Amitava Roy and A M Khanwilkar, said.

When advocate Prashant Bhushan, representing the petitioner NGO, argued that the CJI should recuse himself from hearing the case as his name has allegedly figured in the CBI's FIR, Additional Solicitor General P S Narsimha said no party can decide who should recuse or who should hear a matter.

Some advocates present in the courtroom referred to Justice Chelameswar's order and that it has been directed that the five-judge bench would comprise of the five senior-most judges of the apex court.

Justice Arun Mishra reacted:

"Is that not a bad reflection on us that only five senior judges should hear the matter. Are we not competent?"

"You are doubting the integrity of everybody in the system", Justice Mishra, who is not among the top five senior judges, said.

Members of the Supreme Court Bar Association including its President R S Suri, vice-president Ajit Sinha, Secretary Gaurav Bhatia and several senior advocates including Ashok Bhan and Aman Sinha countered Bhushan's submissions and said that strong action should be taken against any attempt to "browbeat" the judges.

"It cannot be presumed if he (Bhushan) says that it (FIR) is against any judge of any court. If somebody is presuming something, we cannot help it. The court cannot function in this manner," the bench observed.

The bench also said the FIR cannot be said to be against any judge.

"Constitution has a procedure and that procedure has to be protected. We are not here to protect any individual but the Constitution. Mr Bhushan, not like this. You must take back your statement," the bench said.

Justice Arun Mishra referred to Bhushan's argument that the CJI should recuse from hearing the case and said, "Mr Bhushan, your comment was not appropriate. For God's sake, do not say like this".

During the charged-up hearing, Suri also questioned the manner in which the petition was mentioned yesterday before a bench headed by Justice Chelameswar at 10.30 am and was taken up for hearing by the bench at 12.45 pm itself.