Mandal II: The propriety of CJI’s intervention

The manner CJI has exercised his prerogative in advancing the hearing of the Ashoka Kumar Thakur case to May 8 has dismayed some of our co-bloggers. Now, that the case is to be heard by the same P-P Bench, I am summing up here some of the legal arguments in defence of the CJI. It appears the CJI had no leeway to change the Bench, since Rule Nisi has not yet been issued:

1. Had it been a part-heard matter, the CJI could not have intervened; that is, between March 7, 2007 when it was first heard, and March 28, before it delivered the interim/final order on the stay. Once the order had been delivered, there is no fetter on the CJI’s power.

2. Since Court is closing for vacation in May, no request for expediting final hearing could be entertained in April in the normal course. It is not a practical request that could have been made to the Pasayat Bench. Still, the Solicitor General made the oral request for early hearing, which elicited the ’56 years’ remark from the Bench. If Rule Nisi was issued and Justice Pasayat himself had fixed the matter for hearing on May 8, there would have been no grievance. If Rule Nisi was issued by Justice Pasayat, then it is logical that the matter is fixed for hearing by the CJI. Once Rule Nisi is issued, it becomes the part of the Court’s final hearing calendar, and it becomes the responsibility of the CJI to assign Benches. But Rule Nisi has not yet been issued in this case, even though the Centre has challenged the notice to show cause why Rule Nisi should not be issued. Normally, if the Bench thinks the PIL being heard can be expeditiously disposed of, there is no formal need to issue Rule Nisi. In this case, there is a challenge to Constitutional validity of a statute, and there has to be a detailed hearing. There is an element of urgency. But Rule Nisi has not yet been issued.

3. Even when Rule Nisi has not been issued, and the matter is in after-notice stage, the power to fix the matter is with the CJI. If Justice Pasayat had fixed the matter in August on the basis that he has other cases scheduled before vacation, then also CJI could, if satisfied with the urgency, say that this case must take priority over other cases. However, this power is not normally exercised, and is a little awkward exercise of CJI’s prerogative. Off late, some Judges have the tendency to fix dates for hearing even beyond after notice stage. Therefore, the CJI is right if he feels that he has the prerogative to fix dates in such cases.

4. Once a case crossed the administration stage, then the CJI has the power to mark it to the appropriate Bench. The Supreme Court Rules are silent on this, and it is a matter of convention that he does not normally do so.

5. In matters of urgency, the Court had advanced the hearing of a case even to summer vacation. In 1974, In Re Presidential Poll, the Supreme Court’s Constitution Bench heard the matter during the summer vacation, as the Government sought to get the court’s advisory opinion on the validity of Presidential election, before it is held, as the Gujarat Assembly had been dissolved and President’s rule imposed. (The Supreme Court held the election would be valid even in the absence of the Gujarat assembly). It is clear, however, that the P-P Bench and the CJI differ on the question of urgency in this case.

6. The Government’s strategy on May 8 will again be to seek reference of the case to a Constitution Bench. If the P-P Bench does not agree to it, then perhaps there are very limited options before the Government.