The reason for the sudden change of Bench to hear the matter was the buzz among the lawyers and the journalists at Court No.5 today. An official denial that Justice Mukhopadhaya and his brother, Justice Ramana have recused has been reported, but what was not reported was why the CJI had changed the Bench. Well, the reason can only be speculated at this stage. Did the Gujarat Government backtrack after witnessing the extent of support to Teesta from the civil society? There was a hint of possible bias, as reported in a section of the press, on the part of the Mukhopadhaya-Ramana Bench in favour of the Gujarat Government, but the details could not be confirmed. In any case, the change of Bench was not an issue with the litigants, as even the Gujarat Government had no grievance about the sudden change of Bench on the eve of today’s hearing.
Jutice Dipak Misra’s observations today set the stage – that liberty is paramount, that it cannot be kept in ICU or put on a ventilator. He was responding to Mr.Kapil Sibal’s observation that the State cannot take upon itself the task of persecuting those who fight against it. Responding to Mr.Mahesh Jethmalani, counsel for Gujarat, he also said anticipatory bail is neither the rule nor the exception. He made two interesting observations: anxiety is in the realm of abstraction; wisdom is lost to knowledge; knowledge to data and finally to gossip. Teesta’s counsel, Mr.Kapil Sibal offered his own: one who knows he knows is a fool. Mr. Mahesh Jethmalani retorted he did not claim he knew.
At one stage during the two-hour long hearing, it appeared as if Justice Dipak Misra was succeeding in persuading Mr.Mahesh Jethmalani to abandon one charge after another – sections 420, 468, and 120-B of IPC and 72A of Information Technology Act which have been invoked against Teesta and her husband. Then Justice Dipak Misra said only Section 406 IPC remained. Should liberty be put on ventilator just to pursue this charge, he asked Mr.Mahesh Jethmalani. Non-cooperation of the accused with the I.O. is the only issue which necessitates custodial interrogation, Mr.Mahesh Jethmalani said. ‘They are obliged under law to provide all documents’, said Justice Dipak Misra, and added, ‘You cannot expect answers in a particular manner’. Personalities do not become protagonists; case rests on its own facts, Justice Dipak Misra observed. It was clear that the Bench had made up its mind, to continue the stay and reserve the judgment in the meantime.
Update 2: My initial post in which I wrote that the Judges who first heard the case might have recused turned out to be correct. SC’s unusual clarification of the matter can be read here.