In an otherwise fit case for adjudication by a two-judge SC bench, CJI D Y Chandrachud had to constitute a five-judge bench to take suo motu cognisance of the unsavoury utterances by Justice Avijit Gangopadhyay in response to his order for CBI probe being stayed within hours by a bench of Justices Soumen Sen and Uday Kumar on Jan 24.
What tipped the scale for a larger bench is Justice Gangopadhyay’s insinuation against Justice Sen that he “is acting clearly for some political party in this state, and therefore, the orders passed in the matters involving state, are required to be relooked if the Supreme Court thinks so”.
On Saturday, a bench of CJI Chandrachud and Justices Sanjiv Khanna, B R Gavai, Surya Kant and Aniruddha Bose, the five most senior judges, attempted to put brakes on the judge vs judge bad blood by staying proceedings relating to the fake caste certificate scam both before Justice Gangopadhyay and the bench of Justices Sen and Kumar.
It issued notices to West Bengal government through counsel Astha Sharma, CBI and original petitioner before HC (Itisha Soren). Bengal government informed SC that it is in the process of filing an appeal against Justice Gangopadhyay’s Jan 24 order directing a CBI probe. SC ordered state government’s appeal to also be listed for hearing on Monday.
Attorney general R Venkataramani and solicitor general Tushar Mehta were specially notified by the court to appear in the suo motu proceedings. Senior advocate A M Singhvi appeared for TMC’s Abhishek Banerjee, senior counsel Kapil Sibal, Huzefa Ahamadi and Sunil Fernandes appeared for Bengal government along with 16 other counsel.
Mehta said the Centre had no role in the matter and that he was appearing with the AG to assist the court. He said the HC division bench appeared to have stayed the single judge’s order on oral application by state advocate general without having an appeal memo, a practice banned by SC in 1984 in Samarias Trading case, again relating to a practice in Calcutta HC.
He cited Justice O Chinnappa Reddy’s opinion in 1984 judgment in Samarias Trading, which had said, “We confess that the state of affairs is but the inevitable consequence of a most curious procedure said to be followed over the years by the Calcutta HC, a practice which we are happy to say no other HC in the country follows, a practice which put in the mildest terms in unhealthy and likely to lead to harm and abuse and a practice which we now propose to forbid in exercise of our powers under Article 141 of the Constitution.”
The SC had ruled, “There is hardly any justification for the entertainment of an oral application and issuance of an interim order with no record whatever of what was submitted to the court of the reasons for the order made by the court. To permit a procedure by which oral applications may be made and interim orders obtained without any petition in writing, without any affidavit having been sworn to as prima facie proof of allegations and without any record being kept before the court may lead to very serious abuse of the process by the court.”
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