The outcome of the pending contempt proceedings against activist-lawyer Prashant Bhushan is becoming curiouser and curiouser. A fresh controversy over the listing and deletion of a writ petition filed by N.Ram, Arun Shourie and Bhushan, to be heard on Monday, could have had an unexpected impact on the pending contempt of court petitions against Bhushan before the bench of Justice Arun Mishra.
But it won’t because the application for stay filed along with that writ petition has now become redundant, with Justice Mishra reserving his judgment.
The civil writ petition filed before the Supreme Court by N.Ram, Shourie and Bhushan challenging the constitutionality of Section 2[c][i] of the Contempt of Courts Act, 1972, was first listed before the bench comprising Justices D.Y. Chandrachud and K.M. Joseph to be heard on August 10.
According to Bar and Bench, the Supreme Court Registry “hauled up” its officers for not listing the case before the bench headed by Justice Arun Mishra, and other reports suggest that the Supreme Court has sought an explanation from its registry officials regarding how the “mistake” occurred.
In both the contempt matters pending against Prashant Bhushan, scandalisation of judiciary is an allegation levelled against him suo motu by the Supreme Court. The petition filed by Ram, Shourie and Bhushan attacks the very ground of scandalisation as vague, manifestly arbitrary, and unreasonable.
Following the deletion of the petition from Monday’s cause-list, a fresh controversy has arisen over whether the Supreme Court displayed unnecessary concern in ensuring that the matter has to be heard by Justice Arun Mishra’s bench alone, and not listed before any other bench.
Also read: In Prashant Bhushan’s Contempt Case, an Issue of Procedural Fairness Comes to the Fore
As the petition challenges the constitutional validity of a section in the Contempt of Courts Act, notice has to be issued to the parties, and it may take a couple of weeks before the petition gets heard, and possibly referred to a five-judge constitution bench. That is, even if it is listed before Justice Arun Mishra’s bench, it has to first issue notice to the parties, and schedule its next hearing. In the meantime, Justice Arun Mishra will retire on September 2, and the matter has to be heard on merits by another bench.
What the Supreme Court’s roster says
According to the Supreme Court’s roster, effective of December 5, 2019, contempt of court matters fall under five categories, numbered from 1701 to 1705.
The subject is listed under the roster for the CJI, S.A. Bobde, Justice Arun Mishra, and Justice Uday Umesh Lalit.
Lawyer Prashant Bhushan. Photo: PTI/Arun Sharma
But the petition filed by N. Ram, Arun Shourie and Prashant Bhushan is a civil writ petition [No.791 of 2020], which has been registered and verified on August 4. It was filed at 12.10 pm on August 4 and given the Diary No.16165 of 2020. The computer generated date for listing the case is shown as August 10. It has now been deleted from the cause-list for Monday.
The category of the case is 1807 – Ordinary Civil Matters: Others. This category is shown in the roster under Justices N.V. Ramana, Arun Mishra, Rohinton Fali Nariman, Lalit, A.M. Khanwilkar, D.Y. Chandrachud, Ashok Bhushan, L. Nageswara Rao, Sanjay Kishan Kaul, Mohan M. Shantanagoudar, S. Abdul Nazeer, Navin Sinha and Indu Malhotra. That is, before all the presiding judges, except the Chief Justice of India, S.A. Bobde.
Listing issues
According to court insiders, the category number for a new petition to be listed is given by the category section in the Supreme Court. At the time of filing, the petitioner is asked to furnish the information regarding similar matters pending before any bench of the Supreme Court under the Listing Proforma. If the details are given for pending cases, then the officer concerned enters the details on the computer, which then allots the new case to the bench which is already hearing the connected matters.
Kamini Jaiswal, counsel for Ram, Shourie and Bhushan confirmed to The Wire that she did not find it necessary to enter the details of the pending petitions before Justice Arun Mishra in the Listing Proforma because in any case, the application for stay had almost become infructuous with Justice Mishra going ahead with the hearing and reserving his orders. During the hearing, Justice Mishra was informed about the filing of the petition by Ram, Shourie and Bhushan. Therefore, the controversy over the listing of the petition before another bench and its deletion from Monday’s cause-list was wholly unnecessary, she told The Wire.
Also read: In SC’s Dealings With Prashant Bhushan Over Contempt, Shades of Arundhati Roy’s Case
It is not unusual for glitches to happen in the listing of cases before different benches. However, while deleting a case after listing, propriety demands that the consent of the judge/s who is/are scheduled to hear the case is taken.
If such consent is not taken in advance, the judge concerned on his or her own expresses his or her difficulty to hear the case in view of the pendency of a similar matter before another bench. The matter is then placed before the CJI as the master of the roster on the administrative side for him to assign the case to the same bench which is hearing similar matters.
Although reports suggest a serious view has been taken about the lapse of the officials who first listed the matter before the Chandrachud-Joseph bench, it is not clear whether a similar serious view may be taken against deletion of the matter arbitrarily without seeking the consent of Justices Chandrachud and Joseph.