“Most unfair and very unfortunate”. That was how Chief Justice of India-designate Justice J S Khehar reacted on Friday after advocate Prashant Bhushan raised the pendency of his appointment as CJI with the government while suggesting that the judge should not hear the plea seeking a probe against various politicians over alleged illegal payoffs by Aditya Birla and Sahara groups.
“This is most unfair… most unfair and very unfortunate. It is not a fair request but you go to any other bench you want. I don’t want to hear this matter anymore,” said Justice Khehar after Bhushan contended that it was his duty as an officer of the court to apprise him of apprehensions that people might have.
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Justice Arun Mishra, who was with Justice Khehar on the bench, asked Bhushan: “Do you think we can succumb under any pressure? You are talking about the highest court of the land and doubting the constitutional authority. Do you think we, as constitutional functionaries, can be affected by all this? What are you trying to say? It is my personal opinion that it is contempt.”
Justice Mishra said that he “completely disagreed” with Bhushan that his fellow judge required to recuse himself from hearing this matter. “It is very unfair. It is sheer contempt. Are we to be treated like this?” he asked Bhushan.
Seeking to justify the reference, Bhushan said, “Although I have no doubt about the integrity, it is my duty, an unpleasant duty, as an officer of the court to point this out in the interest of the institution. I don’t have any problem with my lordship hearing this matter but I have to protect the institution from all kinds of rumours.”
But Justice Khehar responded: “You never had to bring this up if you did not have any problem. And were you not an officer of this court previously when you appeared before us twice, thrice and argued this matter? You did not raise this objection then so why are you raising it now? It is very unfair.”
Bhushan’s contentions had come after Justice Khehar said that the lawyer was making “serious allegations in a non-serious matter” and that he had nothing to corroborate the accusations.
“What was the tearing hurry (for filing the plea)? You have filed a petition with very serious allegations in a non-serious matter. We have been asking you to bring materials and giving you time but we should not be doing it. It is an unreasonable request. You had to bring your best evidence when you had filed the petition but here we are granting you time after time. What will others think? Are we siding with you in all this? You had to bring the material… and then argue this petition,” Justice Khehar had told Bhushan.
After the judge made these observations and expressed disinclination to grant him any more time, Bhushan brought up the issue of Justice Khehar’s elevation and pendency of the related file with the government.
With Bhushan saying that he was willing to go ahead with the matter despite the reservations, Justice Khehar remarked that it was “inappropriate” on the counsel’s part to mention the issue of his elevation.
Attorney General Mukul Rohatgi described Bhushan’s reference as “cheap tactics” and said he was “pained” at the attempt to browbeat the judges. The A-G said Justice Khehar should not recuse from hearing this case since that might set a wrong precedent. Additional Solicitor General Tushar Mehta supported the AG in his submission.
Justice Khehar then told Rohatgi that the bench could either send the matter to the CJI for listing before a different bench or post it after winter break. The A-G said he agreed with the second option and the bench adjourned the hearing for January 11.
On Wednesday, the bench had cautioned Bhushan, who appeared for petitioner NGO Common Cause, against making unsubstantiated allegations against constitutional functionaries and observed that it would not order an inquiry on the basis of Income Tax papers relating to raids at Aditya Birla Group and Sahara companies unless there was credible material to suggest illegal payoffs.
“This is becoming very abnormal for us. What we told you (petitioner). give us smallest material. We will deal with it. How will a constitutional authority function if you are going to make such allegations? We don’t see even the smallest material to substantiate your accusations,” it had said.
Bhushan had relied upon purported email communications between officers of the Aditya Birla and Sahara groups to allege that bribes were paid.