KAMINI JAISWAL versus UNION OF INDIA & ANR.
[2017] 13 S.C.R. 189, Supreme Court of India, 2017
Outcome: Dismissed (Dismissed)
Segment: Body
[2017] 13 S.C.R. 189 
KAMINI JAISWAL 
v. 
UNION OF INDIA & ANR. 
(Writ Petition (Criminal) No.176 of2017) 
NOVEMBER 14, 2017 
[R. K. AGRAWAL, ARUN MISHRA AND 
A.M. KIIANWILKAR, JJ.] 
Administration of Justice: 
Writ Petition u/Art. 32 of the Constitution [W.P. (Cr/.) 
No. 16912017} filed on 8.11.2017 by Commission for Judicial 
Accountability and Reforms (CJAR) - Stating that an FIR relating 
to criminal conspiracy and of taking illegal gratification to influence 
A 
B 
c 
the outcome of a pending case before Supreme Court revealed a 
nexus between the middlemen, Hawala dealers and senior public D 
functionaries including persons in judicial field - The petition was 
mentioned before Court No.2 and thereafter, it was listed for hearing 
on 10.11.2017 before a particular Bench - On 9.11.2017 another 
similar writ petition (present petition) identically worded, was filed 
by the petitioner (a member of (CJAR) and was mentioned before 
Court No.2 with a prayer to hear the matter on the same day - The 
Bench (Court No.2) posted the present petition before itself for 
hearing on the same day - After hearing, the Bench (Court No.2) 
decided to place the matter before Constitution Bench which would 
consist of senior most five Judges of the Court - When the WP 
(Cr/.) No.169/2017 came up for hearing before another Bench, the 
Court taking into account the order in the present case, directed to 
place the matter before the Chief Justice of India for passing 
appropriate orders - The
matter was considered on administrative 
side by the Chief Justice and he constituted 5-Judge Constitution 
Bench - The Constitution Bench (constituted by the Chief Justice) 
E 
F 
on 10.11.2017 decided that the Chief Justice is the Master of roster 
G 
and no Bench can direct the composition for constitution of a Bench 
- Thereafter, the Chief Justice constituted 3-Judge Bench to hear 
the matter on 13.11.2017 - Plea was taken by petitioner that order 
dated 9.11.2017 (a/locating the matter to 5 senior most Judges) 
could have been passed under Art.142 of the Constitution and the 
189 
H
190 
A 
B 
c 
D 
E 
F 
SUPREME COURT REPORTS 
[2017] 13 S.C.R. 
order dated 9.JJ.2017 was binding on other courts in view of Art. 
144 and hence could not have been rendered ineffective by order 
dated 10.11.2017 - Petitioners also took the plea that as the pending 
matter (order whereof was alleged to be influenced) was heard by 
the Chief Justice, and by one of the Judges in the present Bench, the 
matter cannot ~e heard by a Bench constituted by the Chief Justice 
and that the other Judge should recuse himself from the matter -
Held: Arts. 144 or 142 are not applicable in the present case - In 
case they are attracted, it is decision of Constitution Bench (whereby 
it decided that Chief Justice is the master of roster) which is binding 
- It has been held by Constitution Bench that Chief Justice is the 
master of roster and the present Bench was constituted by the Chief 
Justice in his administrative capacity - It was highly improper to 
allege conflict of interest that the Chief Justice should not hear on 
judicial side or allocate that matter on administrative side - Filing 
of two successive petitions are a misconceived venture, amounting 
to fonim hunting and has brought the entire judicial system into 
disrepute for no good cause - Asking for recusal of a particular 
Judge from the 1r1atter is another attempt to fonim hunting and also 
amounts to contempt of Court - Making such scandalous remarks 
also tan/amounts to interference with administration of Justice -
Constitution of India - Arts. 142, 144 and 145 - Supreme Court 
Rules, 2013 - Contempt of Court. 
Advocates: 
Petition filed by advocate in his/her personal capacity -
Making scandalous remarks against judiciary - Held: Making 
scandalous rem&rks ten/amounts to interference with administration 
of justice - An advocate cannot escape the responsibility on the 
ground that he/she drafted the same in his/her personal capacity. 
Maxim: 
"nemo judex in causa sua" - Applicability and scope of -
G Discussed. 
H 
Dismissing the petition, the Court 
HELD: 1. It cannot be said that this Court cannot hear the 
matter as the Bench has been formed by the Chief Justice of 
India in exercise of his administrative power. That issue stands
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 
191 
concluded by the decision of 5-Judge Bench of this Court. The A 
Constitution Bench of this Court has clearly held that the Chief 
Justice of India is the master of the roster, and any order which 
had been passed contrary to the order of the Constitution Bench, 
was held to he ineffective in law, not binding on the Chief Justice 
of India. The Chief Justice of India has constituted a Bench on 
administrative side after the aforesaid decision of this Court in 
which, this precise question, as to the competence of the Chief 
Justice to constitute a Bench, has been decided. The decision is 
binding. (Para 15] [208-H; 209-A-B) 
B 
2. It is not correct to say that Article 144 of the Constitution 
C 
of India binds this Court and, renders it impermissible, for any 
other Bench of the Supreme Court, even if it is a Bench presided 
by the Chief Justice of India, to overrule an order passed by 
another Bench of the Supreme Court. It is also not correct that 
all orders passed by the Supreme Court are binding under Article 
142 of the Constitution of India, even upon the Chief justice of D 
India and other Benches of the Supreme Court. There is no 
question of applicability of Articles 144 or 142 of the Constitution 
in the present case. In case they are attracted, it is the decision 
of the Constitution Bench that is binding on all concerned, as the 
precise question has been dealt with by the Constitution Bench 
of this Court in the
case of CJAR. (Para 16] (209-C-D, E-F) 
Rupa Ashok Hurra v. Ashok Hurra & Anr. 
(2002) 4 SCC 388 : [2002] 2 SCR 1006 - relied on. 
E 
3. An unprecedented situation has been created by the 
judicial order dated 9.11.2017. The present petition was filed on 
F 
9.11.2017, a similar petition, filed by CJAR, had been mentioned 
on 8.11.2017 by same set of counsels before Court No.2, as the 
Chief Justice of India was presiding the Constitution Bench. 
Obviously, mentioning could have been made before Court No.2; 
but, when mentioning had been done in a similar matter filed by 
CJAR and the case had been ordered to be listed on Friday, i.e. 
G 
10.11.2017, and the petition filed by CJAR was listed before the 
Bench of another Judge, to file and mention this similarly worded 
identical petition on the next day with a similar relief; it was 
mentioned, by one of the same senior counsel before Court No.2, 
requesting to take it up on the same day. That clearly amounted H
192 
SUPREME COURT REPORTS 
[2017] 13 S.C.R. 
A 
to forum hunting. There was absolutely no urgency in the matter 
to make the mention again by filing the petition on 9.11.2017 
itself. They wanted the matter not to be heard by another Bench 
of this Court. [Fara 17] [209-G-H] [210-A-B] 
4. Even if second petition could have been filed, being, 
B 
arguendo, within the right of a member of an organisation to file 
such separate petition, but, there could still not have been any 
forum hunting in the method and manner it has been done to 
create ripples in this Court, by indulging in this exercise of filing 
the second petition on the very next day, thereafter, mentioning 
c 
D 
E 
F 
it on the same day, for the member to exercise her right. It was 
not proper to request Court No.2 to take up the matter when the 
other matter filed by CJAR was coming up on Friday before 
another Bench. At the most the prayer could have been to list 
the said petition along with the matter filed by CJAR which was 
coming up for hearing on Friday, 10.11.2017. [Para 17[ [210-E-G] 
5. On the one hand, the judicial order dated 9.11.2017 
included the Chief Justice of India to hear this matter on merits 
while, on the other hand, prayer is being made in the application 
filed on 13.11.2017 as well as by the counsel appearing on behalf 
of the petitioner that the Chief Justice of India should neither 
hear the matter, nor assign it on the administrative side. There 
is a contradiction in the order
passed by Court No.2 on 9.11.2017 
and in their submission. [Para 18] [211-A-B] 
6. Even when there is an allegation against the Chief Justice 
of India, it is he who has to assign the case to a Bench as 
considered appropriate by him. This has not only been settled by 
the Constitution Bench in CJAR case vide order dated 10.11.2017 
but also by a 3-Judge Bench of this Court. [Para 19) [211-B-C) 
Dr. D. C. Saxena v. Chief Justice of India (1996) 5 SCC 
216 : [19961 3 Suppl. SCR 677 - relied on. 
G 
7. The submission so raised and averments so made in this 
H 
petition and the entire scenario created by filing of two petitions 
is really disturbing a Jot. The entire judicial system has been 
unnecessarily brought into disrepute for no good cause 
whatsoever. It passes comprehension how the petitioner
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 
193 
presumed that there is an FIR lodged against any public A 
functionary. There is an averment made in the writ petition that 
it is against the highest judicial functionaries that FIR has been 
recorded. The Court does not find reflection of any name of the 
Judge of this Court in the FIR. There is no question of registering 
any FIR against any sitting Judge of the High Court or of this 
B 
Court as it is not permissible. There cannot be any registration 
of FIR against a High Court Judge or Chief Justice of the High 
Court or the Supreme Court Judge without the consultation of 
the Chief Justice of India and in case there is an allegation against 
Chief Justice of India, the decision has to be taken by the 
President, in accordance with the procedure prescribed in the C 
said decision. Thus the petitions as filed, are a misconceived 
venture inasmuch as the petition wrongly presupposes that 
investigation involves higher judiciary, i.e. this Court's 
functionaries are under the scanner in the aforesaid case, 
independence of judiciary cannot be left at the mercy of the CBI D 
or that of the police. There cannot be any FIR even against the 
Civil Judge/Munsif without permission of the Chief Justice of 
the concerned court and rightly FIR has not been registered 
against any sitting Judge; otherwise, on unfounded allegatioins 
any honest Judge to the core, can be defamed and reputation can 
be jeopardised. [Para 22] [216-E, F, G]
[217-A,B, CJ 
E 
K. Veerswami v. Union of India (1991) 3 SCC 655 : 
[1991] 3 SCR 189 -
relied on. 
8. The alleged actions of a retired Judge of a High Court, 
allegedly assuring and promising, a 'favourble' decision in the 
aforesaid circumstances of the case which was then pending before 
F 
this Court, in the aforesaid circumstances and has assured 
favourable orders, begs the question as to what favourable orders 
have been passed. There was no favourable order granted by 
this Court in favour of the medical college for the current academic 
session 2017-18, rather its inspection for considering G 
confirmation of letter of permission for the next year 2018-19 
had been ordered. The decision will be in the hands of the M<;:I. 
After decision has been rendered on 18.9.2017 by this Court, an 
FIR has been lodged and it appears that money was yet to be 
H
194 
SUPRBME COURT REPORTS 
[2017) 13 S.C.R. 
A 
exchanged. The FIR dated 19.9.2017 reflects that four of the 
accused were likely to meet another accused for getting 
favourable order at Delhi shortly; whereas this Court has already 
decided the matter on 18.9.2017. Thus it is a far fetched and too 
tenuous to even assume or allege that the matter was pending in 
B 
this Court for which any bribe was to be delivered to anyone. 
[Para 22] [217-D-G] 
c 
D 
E 
F 
G 
H 
9. In case Judge is hearing a matter and if he comes to 
know that any party is unscrupulously trying to influence the 
decision making or indulging in mat practices, it is incumbent 
upon the Judge to take cognizance of such a matter under 
Contempt of Courts Act and to deal with and punish such person 
in accordance with law as that is not the conflict of interest but 
the purpose for which the entire system exists. Such things cannot 
be ignored and recusal of a Judge cannot be asked on the ground 
of conflict of interest. [Para 23] (217-H] [218-A-B] 
1 O. It was highly improper for the petitioner to allege conflict 
of interest in the petition filed that the Chief Justice of India 
should not he~r on judicial side or allocate the matter on the 
administrative side. It appears that in order to achieve this end, 
the particular tequest has been made by filing successive petitions 
day after the other and prayer was made to avoid the Chief Justice 
of India to exercise the power for allocation of cases which
was 
clearly an attempt at forum hunting and has to be deprecated in 
the strongest possible words. Making such scandalous remarks 
also tantamount to interfering with administration of justice, an 
advocate cannot escape the responsibility on the ground that he 
drafted the same in his/her personal capacity. [Para 23] [218-B-
D] 
Shamsher Singh Bedi v. High Court of Punjab & 
Haryana (1996) 7 SCC 99 ; Charan Lal Sahu v. Union 
of India (1988) 3 SCC 255 : [1988] 1 SCR 441 ; 
R. K. Anand v. Delhi High Court (2009) 8 SCC 106 : 
[2009] 11 SCR 1026 ; Leila David v. 
State of 
Maharashtra (2009) 10 SCC 337 : [2009] 
15 SCR 
317 ; Amrik Singh v. State (Delhi Admn.) (1971) 3 SCC 
215 ; Bal Kishan Giri v. State of U.P. (2014) 7 SCC 
280 : [2014] 6 SCR 545 - relied on.
KAMINI JAISWAL v. UNION OF INDIA & ANR. 
195 
Union of India & Ors. v. Mis. CIPLA Ltd. & Anr. 
A 
(2017) 5 SCC 262 : [2016) 7 SCR 523 - referred to. 
11. Yet another disturbing feature which aggravates the 
sitnation is that prayer has been made that one of the Judges 
hearing this petition should recuse from the matter. This is 
nothing but another attempt of forum hunting which cannot be 
B 
permitted. Rather this kind of prayer was held to be 
contemptuous, aggravating the contempt in the case of *Dr. D C 
Saxena case. This is yet another strategy to succeed in the attempt 
that the CJI should not take up the matter himself in the judicial 
side and administrative side for what may apply to and hold good 
C 
for one of the Judges will be equally applicable to the CJI. Though. 
it was submitted that there is no allegation against the said Judge 
but since he decided the matter of medical college with respect 
to which FIR has been lodged, he should recuse. 
Rather it is 
the duty of the Bench to take up such matter firmly; such 
unscrupulous allegations and insinuations cannot be allowed to D 
be hurled by oral prayer made on behalf of the petitioner for 
recusal. This is simply deprecated and it is another attempt to 
bring the system in disrepute, casting of unwarranted aspersions 
tantamounts to seriously jeopardizing the independence of the 
judiciary. [Para 28) [222-D-G) 
12. Though it is true that none of the Judges is above law; 
no person in the higher echelons is
above the law but at the same 
time it is the duty of the Bar and the Bench to protect the dignity 
E 
of the entire judicial system. Filing of such petitions and the zest 
with which it is pursued, has brought the entire system in the last 
few days to unrest. An effort was made to create ripples in this 
F 
Court and serious unwanted shadow of doubt has been created 
for no good reason whatsoever by way of filing the petition which 
was wholly scandalous and ought not to have been filed in such a 
method and manner. It is against the settled proposition of law. 
Ultimately after arguing at length, at the end, it was submitted by 
G 
the petitioner and her counsel that they were not aiming at any 
individual. If that was not so, unfounded allegations ought not to 
have been made against the system and that too against the Chief 
Justice of this country. In case majesty of judicial system has to 
survive, such kind of petitions should not have been preferred 
H
196 
SUPREME COURT REPORTS 
[2017) 13 S.C.R. 
A that too against the settled proposition of law laid down by this 
Court in *Dr. D C Saxena and **K. Veeraswami cases. [Para 29] 
[222-A-C, HJ 
*Dr. D.C. Saxena v. Chief Justice of India (1996) 5 
SCC 216: [1996) 3 Suppl. SCR 677; **K. Veerswami 
B 
v. Union of India (1991) 3 SCC 655 : [1991) 3 SCR 
189 - relied on. 
c 
13. Heariqg on 10.11.2017 by a Constitution Bench of this 
Court, was a fail accompli and circumstances compelled such 
hearing as on 9.11.2017 (Thursday) in this case, order was passed 
bypassing the power of the Chief Justice of India to constitute a 
5-Judge Bench in order of seniority including the Chief Justice 
of India. It was not permissible and hearing of the instant matter 
was scheduled for 13.11.2017 (Monday) and 10.11.2017 (Friday) 
was the only day available on which the law was required to be 
settled otherwise judicial order was binding and it was necessary 
D 
to decide the question as other Bench had requested the Chief 
Justice of India to assign this matter to an appropriate Bench. As 
the Chief Justice of India had to assign it to a Bench, situation of 
dilemma was created for the Chief Justice of India whether to 
assign the matter of CJAR to an appropriate Bench or to go by 
E 
the judicial order by constituting a Bench of 5 senior Judges on 
13.11.2017. Tl1us a Constitution Bench was required to be 
constituted on the day which was available for deciding the issue 
so as to decide the
issue whether by judicial order case can be 
assigned to a particular Bench or it is in the ambit of power of the 
F 
Chief Justice of India to assign the case. As that issue has been 
settled by the Constitution Bench decision relying on an earlier 
decision in the case of #Prakash Chand, roster making is the 
prerogative of the Chief Justice of India was laid down in the 
case of #Prakash Chand. Besides the Supreme Court Rules, 2013 
also provides that the Chief Justice of India has to assign the 
G case. The cases cannot be assigned by judicial order. Such judicial 
order is simply to be ignored as it is not open to the Judges to 
decide which matter is to be heard by whom as laid down by 
Constitution Bench. [Para 30) [223-D-F, G, H; 224-A-B) 
H 
#State of Rajasthan v. Prakash Chand & Ors. 
(1998) 1 SCC 1: [1997) 6 Suppl. SCR 1 - followed.
KAMINI JAISWAL v. UNION OF INDIA & ANR. 
197 
14. The Court deprecates the conduct of forum hunting that A 
too involving senior lawyer of this Court. Such conduct 
tantamounts wholly unethical, unwarranted and nothing but forum 
hunting. [Para 30] (224-D] 
Union of India & Ors. v. Mis. CJPLA Ltd. & Anr. (2017) 
5 SCC 262 : [2016] 7 SCR 523 - relied on. 
B 
15. There is no room for the petitioner to infer the bias. 
There is no reasonable basis to pray for recusal of one of the 
Judges hearing the present case. That tantamount to contempt 
of court and an attempt at forum hunting. The maxim nemo judex 
in causa sua that no man is to be judge in his own cause, should c 
be held sacred and that maxim is not to be confined to a case in 
which he is a party but applies to a cause in which he has an 
interest. It is far fetched and too tenuous to submit that any Judge 
of this Court much less the Judge in particular, has any interest 
in the subject matter and for that reason in spite of there being 
no allegation in the writ petition, that Judge should recuse. There D 
is no room for reasonable suspicion even in remote and argument 
is simply too derogatory to be made, probably that has been made 
anyhow or somehow to protect the case and to bring disrepute to 
this Court. The Court cannot fall prey to such unscrupulous 
devices adopted by the litigants, so as to choose the Benches as 
E 
that is the real threat to very existence of the system itself and it 
would be denigrated
in case the Court succumbs to such pressure 
tactics. [Para 31] (224-E-H; 225-A-B] 
Ranjit Thakur v. Union of India & Ors. (1987) 4 SCC 
611 : (1988) 1 SCR 512 ; Supreme Court Advocates 
F 
on Record Association v. Union of India (2016) 5 SCC 
808 - referred to. 
Bradely v. Fisher 80 US 335 (1871) - referred to. 
Case Law Reference 
[1997] 6 Suppl. SCR 1 
(2002] 2 SCR 1006 
[1996] 3 Suppl. SCR 677 
relied on 
relied on 
relied on 
Para 12 
Para 12 
Para 19 
G 
H
.. 
198 
A 
B 
c 
SUPREME COURT REPORTS 
[1991] 3 SCR 189 
relied on 
(1996) 7 sec 99 
relied on 
(1988] 1 SCR 441 
relied on 
[2009] 1li SCR 1026 
relied on 
[2009] 15 SCR 317 
relied on 
(1971) 3 sec 215 
relied on 
[2014] 6 SCR 545 
[2016] 7 SCR 523 
[1988] 1 SCR 512 
(2016) 5 sec 808 
relied on 
referred to 
referred to 
referred to 
[2017] 13 S.C.R. 
Para 22 
Para 23 
Para 23 
Para 24 
Para 25 
Para 25 
Para 25 
Para 26 
Para 31 
Para 31 
CRIMINAL ORIGINAL JURISDICTION: Writ Petition 
(Criminal) No. 176 of2017. 
D 
Under Article 32 of the Constitution of India. 
K. K. Venugopal, AG, Tushar Mehta, ASG, Shanti Bhushan, 
R.S. Suri, Sr. Advs., Prashant Bhushan, Rohit kumar Singh, Abhimanue 
Shrestha, Kartik Seth, Divyesh Pratap Singh, Ms. Rani Mishra, Jatinderpal 
Singh, Ms. Shruti Dutt, Suyash Srivastava, Ramesh Kumar Mishra, Raj 
E 
Keshari, Ms. Pyoli, Ms. Cheryl D'souza, Ms. Neha Rathi, Ms. Amiy 
Shukla, Shakti Vardhan, Dcvesh Agnihotri, Govind Jee, 0. Kuttan, 
R. Balasubramarnian, S. S. Shamshery, Raja! Nair (For Mukesh Kumar 
Maroria), Ms. Madhavi Divan, Ayush Puri (For M. K. Maroria), Ajit K. 
Sinha, Gaurav Bhatia, Advs. for the appearing parties. 
F 
The following Judgment of the Court was delivered : 
JUDGMENT 
1. The facts are disturbing in the instant case. By moving two 
successive petitions, one on Wednesday (8.11.2017) and the other on 
G 
Thursday (9.11.2017), identically worded similar petitions, one by the 
Commission for Judicial Accountability and Reforms
(CJAR) and the 
other by Ms. Kamini Jaiswal, Advocate of this Court, who is a member 
of CJAR. Both the petitions are identically worded. The petition filed on 
Wednesday was to be listed on Friday (I 0.11.2017) before a Bench 
presided by Hon'ble A.K. Sikri and Ashok Bhushan, JJ. As stated by 
H 
Shri Prashant Bhushan, one of the counsel representing the petitioner,
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 
199 
the said fact was informed to him by the Registry of the Court on 
A 
8.11.201 7. Learned counsel further states that as the petition had not 
been listed before same Bench which ordered its listing for Friday, i.e. 
Court No.2, it became necessary to file the present second petition i.e. 
W.P. (Cr!.) No.176/2017 by Ms. Kamini Jaiswal,Advocate of this Court. 
2. A prayer was made to Court No.2 to hear the matter on the 
same day; urgency in the matter had been urged by Shri Dushyant Dave, 
learned senior counsel, who mentioned the matter. Order dated 9.11.2017 
passed by Court No.2 is extracted hereunder : 
"Issue notice. 
Dasti, in addition, is permitted. 
This matter was taken on Board upon being mentioned in the 
morning at 10.30 a.m. On an inquiry from the Bench regarding 
the urgency in the matter, it was brought to the notice of the Court 
that a certain case is registered by the Central Bureau of 
Investigation against a retired High Court Judge of this country 
containing serious allegations implicating the said Judge, shown 
as an accused in the FIR No. lO(A) under Section 8 and Section 
120 B of the Prevention of Corruption Act, 1988. The FIR 
contained certain allegations which are disturbing. The allegations 
pertain 2 to the functioning of this Court. On perusal of the FIR 
which was placed before us in the morning, we thought it necessary 
and proper to take up the matter immediately. Therefore, permission 
was
granted to move the matter today at 12.45 p.m. before this 
Court. Accordingly the papers are placed before us at 12.45 p.m. 
Mr. Dushyant Dave, learned senior counsel makes submissions 
highlighting various aspects of the matter, the details of which we 
do not propose to make in this order. But, at the same time, we 
are also duty bound to place the developments that when the 
hearing of the matter was in progress, the Officer of the Registry 
placed a xerox copy of the proceedings purportedly issued by 
Hon'ble the ChiefJustice oflndia, a copy of which is annexed to 
this Order. Having regard to the totality of the circumstances, we 
deem it appropriate that this matter be heard by the Constitution 
Bench of the first five Judges in the order of seniority of this 
Court. Having regard to the importance of the matter, we also 
deem it appropriate that the matter be listed on Monday, the 13th 
November, 2017. Having regard to the nature of the case, it is 
B 
c 
D 
E 
F 
G 
H
200 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2017] 13 S.C.R. 
also necessary to make an interim order regarding the custody of 
the case diary and all the materials collected by the second 
respondent during the course of the investigation of the above-
mentioned crime. We, therefore, deem it appropriate to direct the 
second respondent to produce the entire material collected by the 
CBI in the course of3 the investigation of the crime and keep it in 
a sealed cover and produce the same before the Constitution Bench 
on Monday, the 13th November, 2017. 
Communicate this order to the second respondent forthwith." 
3. In the other matter, i.e. WP. (Cr!.) No.169/2017, filed by CJAR, 
which was liste~ before a Bench presided by Hon'ble A.K. Sikri, J., 
following order was passed by the Bench on Friday, the I Olli November, 
2017: 
.. 
"Mr. Prashant Bhushan, learned counsel has brought to our notice 
order dated 09.11.2017 passed in W.P.(Crl.) No.176/2017 referring 
the matter to the Constitution Bench. Let the matter be placed 
before Hon'ble the Chief Justice for passing appropriate orders 
for listing this matter. 
Mr. R.S. Suri, senior advocate/President, Supreme Court Bar 
Association (SCBA) submits that SCBA also wants to get itself 
impleaded as a party respondent and render assistance. On an 
oral request of Mr. Suri, the prayer is allowed and the SCBA is 
imp leaded as a party respondent." 
4. In the writ petitions, a prayer has been made to constitute a
Special Investigation Team (SIT), headed by retired Chief Justice of 
India, to investigate the offences arising out of FIR being RC. IO(A)/ 
2017-AC. III dated 19.9.2017 recorded at New Delhi by the CBI and 
those connected therewith and take consequential action thereafter in 
accordance with law. A prayer was also made to direct the CBI, to 
produce before this Court for its perusal and, preserve and protect, all 
evidences/materials collected so far and hand over all the materials/ 
evidences collected so far in the FIR to the SIT to be constituted by this 
Court. 
5. It has been averred in the petitions, filed under Article 32 of the 
Constitution of!ndia, that the FIR, relating to criminal conspiracy and of 
taking illegal gratification to influence the outcome of a pending case
KAMIN! JAISWAL v. UNION OF !NOIA & ANR. 
201 
before this Court, reveals a nexus between the middlemen, Hawala 
A 
dealers and senior public functionaries, including persons in the judicial 
field. The FIR has been registered with respect to case of Prasad 
Education Trust at Lucknow. The medical college set up by the Trust 
was debarred by the Government from admitting students for the years 
2017-18 and2018-19. The FIR lodged by the CBI names a retired Judge 
of the High Court as an accused, who had allegedly been negotiating 
through a middleman to get a favourable order in the petition pending 
before this Court. The said petition was heard by a Bench headed by 
Hon'ble Chief Justice of India. Thus, taking this as a pretext, in the 
instant petition, it has been averred, that the FIR casts a cloud on the 
judiciary at the highest level. Thus, the prayer has been made that, 
investigation in relation to aforesaid FIR should be handed over to an 
SIT headed by a retired Chief Justice of!ndia and not left to the agency 
controlled by the Government; with the averment that in order to restore 
B 
c 
the confidence of the public in the judiciary, the agency controlled by the 
Government should not be allowed to undertake the said investigation. It 0 
is further averred in the petition, that since the matter had been heard by 
a Bench presided over by Hon'ble Chief Justice of India, propriety 
demands that the Hon'b!e Chief Justice oflndia ought not to deal with 
the present
petition either on the judicial side, or even on the administrative 
side. Therefore, present petition can neither be heard by a Bench presided 
by the Hon 'ble ChiefJustice oflndia, nor can it be assigned to any other 
Bench by Hon'ble Chief Justice oflndia in his administrative capacity. 
Further, that the petitioner has not made any representation .to the 
respondent; because of the extreme urgency in the matter, the writ 
petition has been filed. The FIR dated 19.9.2017 has been placed on 
record as Annexure Pl. 
6. It is further averred, that the College had been granted 
permission on .L0.8.2016 by the Oversight Committee of the Medical 
Council oflndia; on failure to fulfill certain conditions, it got debarred 
from admitting the students for two academic sessions i.e. 2017-18 and 
2018-19 as infrastructure and other facilities were found to be deficient. 
W.P. (C) No.442/2017 was filed in this Court, which was connected 
with WP (C) No.411/2017 in which an order was passed on 1.8.2018, to 
provide an opportunity of hearing to the petitioner( s) in that case and 
thereafter to pass a reasoned decision de nova. Hearing was granted, 
and the Hearing Committee of the Government agreed with the aforesaid 
E 
F 
G 
H
202 
SUPREME COURT REPORTS 
[2017] 13 S.C.R. 
A 
decision of the Ministry, not to permit the college for two years. Another 
writ petition was thereafter, filed in this Court by the said Prasad Education 
Trust; it was withdrawn on 24.8.2017, with liberty to move the Allahahad 
High Court. Thereafter, a writ petition was filed on 25.8.2017 in the 
High Court at Allahabad; an order was passed on 25.8.2017 itself that 
B 
the College shall not be delisted from the list of colleges notified for 
counseling till theinext date oflisting i.e. 31.8.2017. The Medical Council 
of India (MCI) filed an SLP against the said order which was disposed 
on 29.8.2017 ancl permission was sought to file a petition before this 
Court which was accorded. Petition was filed on 31.8.2017; the case 
was listed on 11.9.2017; and, this Court ordered on 18.9.2017, that there 
C . shall be no renewal for the academic session 2017-18, however, the 
MCI may inspect again for the session 2018-19. No further order was 
passed by this Court and accordingly the petition was disposed of. It 
was for the MCI to take a decision in the matter not only for continuity 
of provisional letter of permission for academic session 2016-17 and 
0 
renewal purposes only for 2018-19. No relief was granted for the current 
academic session 2017-18. 
E 
F 
7. On 19.9.2017, an FIR was registered against the following 
persons in connection with the case : 
1. Shri LM. Quddusi, retired Judge of the High Court of Odisha. 
2.
Smt. Bhawana Pandey r/o GK. New Delhi (private person) 
3. Shri B.P. Yadav (private person) 
4. Shri Palash Yadav (private person) 
5. Shri Sudhir Giri (Private person) 
6. Shri Biswanath Agrawala, r/o HIG - 136, Phase 1, Kanan 
Vihar, Bhubaneshwar, Odisha (Private person) 
7. Other unknown public servants and private persons. 
8. It was alleged in the FIR, that Mr. B.P. Yadav had requested 
G 
Justice LM. Quddusi and Smt. Bhawana Pandey to get the matter settled 
in the apex Court through their contacts. They engaged Mr. Biswanath 
Agarwala, a private person and a resident of Bhubaneswar, Orissa for 
getting the matter settled in the apex Court. Mr. Biswanath Agrawala 
claimed that he would get the matter favourably settled. He demanded 
huge gratification for inducing the public servants by corrupt and illegal 
H
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 
203 
means. Further, that Mr. B.P. Yadav, Mr. Palash Yadav, Justice I.M. 
A 
Quddusi, Mrs. Shawana Pandey and Mr. Sudhir Giri were all likely to 
meet Mr. Biswanath Agrawala for delivering the agreed illegal 
gratification at Delhi shortly. The FIR was recorded on 19. 9.2017 whereas 
this Court had already disposed of the matter on 18.9.2017. It is averred 
in the petition that the case discloses commission of offence punishable 
B 
under section 8 of the Prevention of Corruption Act, 1988 and section 
1208 of the !PC against the named persons as well as against the 
unknown public servants and private persons. It is further averred in the 
petition that since the matter involves persons placed at the highest 
echelons of power including justice delivery system and in subsequent 
raids made by the CBI it has recovered close to Rs.2 crores in cash, the 
C 
agency has seized Rs. I crore which the Hawala operator had handed 
over to an aide of the retired Judge I.M. Quddusi. 
9. There was an order passed by a Bench consisting of Hon 'hie 
A.K. Sikri, J. on 10.11.2017 that the matter be placed before Hon'ble 
Chief Justice oflndia for listing the matter. The matter was considered 
D 
on administrative side by the Hon'ble Chief Justice of India and he 
constituted a 5-Judge Constitution Bench which consisted of and presided 
over by Hon'ble Chief Justice of India. The Constitution Bench answered 
the question as a piquant. situation had
arisen for listing the case by 
judicial order before senior-most 5 Judges in order of seniority passed in 
the present petition and the aforesaid order dated 10.11.2017 passed in 
E 
the case ofCJAR in WP (Cr!.) No.169/2017 by Hon'ble A.K. Sikri, J. 
There was variance between the orders passed by the. two Benches; 
one by Court No.2 and the other presided over by Hon'ble A.K. Sikri, J. 
The order in this case was passed on 9.11.2017 for listing the matter 
before 5 Hon'ble Judges on Monday i.e. 13.11.2017 and Hon'ble A.K. 
F 
Sikri, J. requested the Hon'ble Chief Justice of India to constitute an 
appropriate Bench for hearing the other matter which was similar. The 
matter was referred to a Constitution Bench of this Court to decide as to 
what should be done in such a situation as only working day available 
was 10.11.2017. The Constitution Bench held that the Hon'ble Chief 
Justice of India is the master of the roster as per the decision of this 
Court in State of Rajasthan v. Prakash Chand & Ors. (1998) 1 SCC 
G 
1 wherein this Court had laid down thus : 
"I) That the administrative control of the High Court vests in the 
Chief Justice alone. On the judicial side, however, he is only the 
first amongst the equals. 
H
204 
SUPREME COURT REPORTS 
[2017] 13 S.C.R. 
A 
(2) That th~ Chief Justice is the master of the roster. He alone 
has the prerogative to constitute benches of the court and allocate 
cases to the benches so constituted. 
B 
c 
D 
E 
F 
G 
H 
(J) That the puisne Judges can only do that work as is allotted to 
them by the Chief Justice or under his directions. 
( 4) That till any determination made by the Chief Justice lasts, no 
Judge who is to sit singly can sit in a Division Bench and no Division 
Bench can be split up by the Judges constituting the bench 
themselves and one or both the Judges constituting such bench sit 
singly and take up any other kind of judicial business not otherwise 
assigned to them by or under the directions of the Chief Justice. 
Xxxxx 
( 6) That the puisne Judges cannot "pick and choose" any case 
pending in the High Court and assign the same to himself or 
themselves for disposal without appropriate orders of the Chief 
Justice. 
(7) That no Judge or Judges can give directions to the Registry 
for listing any case before him or them which runs counter to the 
directions given by the Chief Justice." 
10. A Constitution Bench of this Court held that what has been 
laid down in Prqkash Chand (supra) would apply proprio vigore as 
regards the power of the Hon'ble Chief Justice oflndia. Though the 
Hon'ble Chief Justice is the first among equals as far as the roster is 
concerned, the Hon'ble Chief Justice of India has the prerogative to 
constitute
the Benches of the Court and allocate cases to the Benches 
so constituted. Following observations have been made by the Constitution 
Bench of this Court : 
"The aforesaid position though stated as regards the High Court, 
we are absolutely certain that the said principle is applicable to 
the Supreme Court. We are disposed to think so. Unless such a 
position is clearly stated, there will be utter confusion. Be it noted, 
this has been also the convention of this Court, and the convention 
has been so because of the law. We have to make it clear without 
any kind of hesitation that the convention is followed because of 
the principles oflaw and because of judicial discipline and decorum. 
Once the Chief Justice is stated to be the master of the roster, he
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 
205 
alone has the prerogative to constitute Benches. Needless to say, 
A 
neither a two-Judge Bench nor a three-Judge Bench can allocate 
the matter to themselves or direct the composition for constitution 
of a Bench. To elaborate, there cannot be any direction to the 
Chief justice of india as to who shall be sitting on the Bench or 
who shall take up the matter as that touches the composition of B 
the Bench. We reiterate such an order cannot be passed. It is not 
countenanced in law and not pennissible. 
An institution has to function within certain parameters and 
that is why there are precedents, rules and conventions. As far as 
the composition of Benches is concerned, we accept the principles 
stated in Prakash Chand (supra), which was stated in the context 
of the High Court, and clearly state that the same shall squarely 
apply to the Supreme Court and there cannot be any kind of 
command or order directing the Chief Justice of India to constitute 
a particular Bench." 
11. The order passed by the Division Bench of this Court on 
9.11.2017 in this matter has been rendered ineffective and the Hon'ble 
Chief Justice oflndia has constituted 3 Judge Bench to hear the matter 
on 13 .11.2017. Thus it has been heard by the Bench as formed by Hon'ble 
ChiefJustice oflndia 
12. It was urged by Shri Shanti Bhushan, learned senior counsel, 
and Mr. Prashant Bhushan, learned counsel for the petitioner, that, this 
Bench could not hear
the matter, as it has been constituted by Hon'ble 
Chief Justice of India. The order passed by a Constitution Bench of this 
Court on 10.11.2017, in the case ofCJAR, that Hon'ble ChiefJustice of 
India would assign the present matter to an appropriate Bench - that 
pronouncement cannot be made by a judicial order; that order cannot 
hold the field. The order dated 9.11.2017 passed by Court No.2 should 
prevail, and the matter is required to be heard by the 5 senior-most 
Judges of this Court in the order of seniority. A judicial order cannot be 
violated, and it could not have been rendered ineffective by the 
Constitution Bench decision of this Court dated I 0.11.2017. Prayer was 
also made that though there is no allegation against one of the Hon'ble 
Judges comprising this Bench (one ofus) as Hon'bleA.M. Khanwilkar, 
J. was a member of the Bench which disposed of the matter of Prasad 
Education Trust vide order dated 18.9.2017, he should recuse from the 
matter. No written application has been filed for his recusal from hearing. 
c 
D 
E 
F 
G 
H
206 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2017] 13 S.C.R. 
Ms. Kamini Jaiswal has also submitted certain points for consideration 
in writing in which,, it has been urged, that the whole intention and objective 
of the petition was, and is, to protect the independence, integrity and 
reputation of the Institution, the Supreme Court, by seeking constitution 
of SIT headed by retired Chief Justice of India. Further, not even a 
single allegation l)as been made against any member of the judiciary, 
leave alone the Hon'ble Chief Justice of India or any Supreme Court 
Judge. Explanation has been given as to how a member of CJ AR could 
file a petition even when her organization had filed a similar petition 
before; submitting that a memberofthe organization is entitled to exercise 
right separately in her own right to file a petition separate from the 
organization. Further, that Article 144 of the Constitution renders it 
impermissible for a different Bench of the Supreme Court, even if it is a 
Bench of the Hon''ble Chief Justice of India, to overrule an order passed 
by another Bench of the Supreme Court, as orders passed by the Supreme 
Court are binding, under Article 144 of the Constitution, even upon the 
Hon 'ble Chief Ju~tice oflndia and other Benches of the Supreme Court 
as held in Rupa Ashok Hurra v. Ashok Hurra & Anr. (2002) 4 SCC 
388. She has reiterated that Hon'ble Khanwilkar, J. ought to have recused 
himself from hearing this case as he was one of the
Judges hearingthe 
matter relating to tnedical bribery scam alleged in the FIR registered by 
the CBI. 
13. It was submitted by Shri K.K. Venugopal, learned Attorney 
General for India, appearing in his official capacity, that such a petition 
as the present one cannot be entertained. The petitioner has unnecessarily 
cast doubt on the entire system. If an unscrupulous person does or says 
anything irresponsible and illegal, and demands a bribe in the name of a 
Judge, the whole system cannot be brought under disrepute. There is 
absolutely no material to link the highest judiciary of the country with the 
so called act of Retired Justice J.M. Qudussi and the persons named in 
the FIR. Thus the petition being wholly unnecessary, deserves to be 
dismissed. Better it was that not to prefer such a petition. 
He has relied upon the decision rendered by the United States 
Supreme Court, in the case of Bradley v. Fisher 80 US 335 (1871). It 
has been held thus: 
''12. Some just observations on this head by the late Chief Justice 
Shaw, will be found in Pratt v. Gardner, [ 2 Cushing, 68.] and the 
point here was adjudged in the recent case of Fray v. Blackburn,
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 
207 
[ 3 Best & Smith, 576.) by the Queen's Bench ofEngli. .. u. Line 
A 
of the judges of that bench was sued for a judicial act, and on 
demurrer one of the objections taken to the declaration.was, that 
it was bad in not alleging malice. Judgment on the demurrer having 
passed for the defendant, the plaintiff applied for leave to amend 
his declaration by introducing an allegation of malice and corruption; 
but Mr. Justice Compton replied: 'It is a principle of our law that 
no action will lie against a judge of one of the superior courts for 
a judicial act, though it be alleged to have been done maliciously 
and corruptly; therefore the proposed allegation would not make 
the declaration good. The public ate deeply-interested in this rule, 
which indeed exists for their benefit, and was established in order 
to secure the independence of the judges, and prevent them being 
harassed by vexatious actions;' -and the leave was refused. [ In 
Scott v. Stansfield (3 Law Reports, Exchequer, 220), a judge of a 
county court was sued for slander, and he put in a plea that the 
words complained of were spoken by him in his capacity as such 
judge, while sitting in his court, and trying a cause in which the 
plaintiff was defendant. To this plea a replication was filed, that 
the words were spoken falsely and maliciously, and without any 
reasonable, probable, or justifiable cause, and without any 
foundation whatever, and not bon a fide in
the discharge of the 
defendant's duty as judge, and were wholly irrelevant to the matter 
before him. To the replication the defendant demurred; and the 
Court of Exchequer held the demurrer well taken. 'I am of opinion,' 
said the Chief Baron, 'that our judgment must be for the 
defendant. The question raised upon this record is whether an 
action is maintainable against the judge of a county court, which 
is a court of record, for words spoken by him in his judicial 
chatacter, and in the exercise of his functions as judge in the 
court over which he presides, where such words would as against 
an ordinary individual constitute a cause of action, and where 
they are alleged to have been spoken maliciously and without 
probable cause, and to have been irrelevant to the matter before 
him. The question arises, perhaps, for the first time, with reference 
to a county court judge, but a series of decisions uniformly to the 
same effect, extending from the time of Lord Coke to the present 
time, establish the general proposition that no action will lie against 
a judge for any acts done or words spoken in his judicial capacity 
B 
c 
D 
E 
F 
G 
H
208 
A 
c 
D 
F 
G 
H 
SUPREME COURT REPORTS 
(2017] 13 S.C.R. 
in a cumt ufjustice. This doctrine has been applied not only to the 
superior courts, but to the court of a coroner, and to a court martial, 
which is nut a court of rncord. It is essential in all courts that the 
judges who are appointed to administer the law should be permitted 
to administer it under the protection of the law, independently and 
freely, withcllUt favor and without fear. This provision of the law is 
not for the protection or benefit of a malicious or corrupt judge, 
but for the benefit of the public, whose interest it is that the judges 
should be at liberty to exercise their functions with independence, 
and without fear of consequences." 
14. Shri Tushar Mehta, learned Additional Solicitor General, 
appearing on behalf of the Government of India, has submitted, that it 
was wholly improper to file two successive petitions in this Court seeking 
similar relief. No disclosure has been made in the second petition about 
filing of the earlier petition for the same cause of action and reliefs. 
Similar petitions with the same set of Advocates were filed and 
unfortunately the prayer was made on both days by Shri Dushyant Dave, 
learned senior counsel of this Court to list the matters, and such 
successive petitions identically worded could not have been filed in this 
Court. It was clearly a case of forum hunting. The fact that case of 
CJAR was already listed before a Bench presided by Hon'ble
A.K. 
Sikri, J., it was highly improper to file another petition and seek its hearing 
by Court No.2 on the said very day i.e. 9.11.2017 at 12.45 p.m. There 
was ::10 tearing urgency in the matter to do so. Unnecessarily, the 
Institution has been brought to be scandalized for no good cause. The 
petition and entire, conduct aims at bringing disrepute to this Court without 
any rhyme or reason. The President of the Supreme Court Bar 
Association (SCBA), Mr. Suri, was also present. They have submitted 
that the SCBA has already placed its point of view while its case was 
heard by a Constitution Bench of this Court, in that they have opposed 
filing of such petitions. That petition brings disrepute to this Court, and it 
was a contemptuous act. Their stand was that, such petition ought not to 
have been preferred and, action be taken against the concerned 
indiv•duals. 
15. Firstly, we consider the question whether we can hear the 
matter as the Bench has been formed by Hon 'ble Chief Justice of India 
in exercise of his administrative power. That issue stands concluded by 
the decision of5-Judge Bench of this Court. The Constitution Bench of
KAMINJ JAISWAL v. UNION OF INDIA & ANR. 
this Court has clearly held that Hon'ble Chief Justice of India is the 
master of the roster, and any order which had been passed contrary to 
the order of the Constitution Bench, was held to be ineffective in law, 
not binding on the Hon'ble Chief Justice of India. The Hon'ble Chief 
Justice of!ndia has constituted a Bench on administrative side after the 
aforesaid decision of this Court in which, this precise question, as to the 
competence of the ChiefJustice to constitute a Bench, has been decided; 
as such, the submission made by Shri Shanti Bhushan, learned senior 
counsel, is hereby rejected. We cannot reopen this issue. The decision is 
binding. 
16. It was submitted, thatArticle 144 of the Constitution of India 
binds this Court and, renders it impennissible, for any other Bench of the 
Supreme Court, even if it is a Bench presided by Hon'ble ChiefJustice 
of India to overrule an order passed by another Bench of the Supreme 
Court. All orders passed by the Supreme Court are binding under Article 
209 
A 
B 
c 
142 of the Constitution oflndia, even upon the ChiefJustice of India and 
other Benches of the Supreme Court, as held in Rupa Ashok Hurra 
D 
(supra). The submission so raised is totally devoid of substance, as a 
Constitution Bench of this Court has decided the question that no such 
order, constituting a particular Bench, can be passed; that would include 
the order dated 9.11.2017, passed by Court No.2, in WP (Cr!.)
No.176/ 
2017. It cannot hold the field in view of the decision of Constitution 
Bench of this Court, which expounds that the Hon'ble Chief Justice of E 
India has the prerogative to constitute a Bench, notwithstanding any 
judicial order passed to the contrary. As a matter of fact, there is no 
question of applicability of Article 144or142 in this case. In case they 
are attracted, it is the decision of the Constitution Bench that is binding 
on all concerned, as the precise question has been dealt with by the 
Constitution Bench of this Court in the aforesaid case ofCJAR. 
F 
17. An unprecedented situation has been created by the judicial 
order dated 9.11.2017. The present petition was filed on 9.11.2017, a 
similar petition, filed by CJAR, had been mentioned on 8.11.2017 by 
same set of counsels before Court No.2 as the Hon'ble ChiefJustice of G 
India was presiding the Constitution Bench. Obviously, mentioning could 
have been made before Court No.2; but, when mentioning had been 
done in a similar matter filed by CJAR by Mr. Dnshyant Dave, learned 
senior counsel and Mr. Prashant Bhushan, learned counsel, as is apparent 
from the order of mentioning, and the case had been ordered to be listed 
H
210 
A 
B 
c 
D 
E 
F 
SUPREME COURT REPORTS 
[2017] 13 S.C.R. 
on Friday, i.e. 10.11.2017, and the petition filed by CJAR was listed 
before the Bench ofHon'ble Sikri, J., to file and mention this similarly 
worded identical petition on the next day with a similar relief; it was 
mentioned, by one of the same senior counsel, Mr. Dushyant Dave, 
before Court No.2, requesting to take it up on the same day. That clearly 
amounted to forum hunting. There was absolutely no urgency in the 
matter to make the mention again by filing the petition on 9.11.2017 
itself. They wanted the matter not to be heard by another Bench of this 
Court presided by Hon'bleA.K. Sikri, J. Reasons were asked for by us 
as to why two p~titions were filed. Shri Prashant Bhushan, learned counsel 
has explained the filing of second petition thus : that the Registry had 
informed him that the matter was not to be listed before Court No.2 on 
Friday, but before Hon'ble A.K. Sikri, J., as per the administrative 
instructions ofHon'ble Chief Justice of India. Therefore, fresh petition 
was filed by Ms. Karnini Jaiswal. This could not have been the valid 
reason to file a fresh writ petition identically worded as suggested by 
Shri Prashant Bhushan, learned counsel appearing on behalf of the 
petitioner though Ms. Kamini Jaiswal, learned counsel, in the written 
note, which she has submitted after hearing was over, has tried to explain 
that a member of an organization is entitled to exercise her right to
file a 
petition separately from the organisation. Be that as it may. Even if 
petition could have been filed, being, arguendo, within the right of a 
member of an organisation to file such separate petition, but, there could 
still not have been any forum hunting in the method and manner it has 
been done to create ripples in this Court, by indulging in this exercise of 
filing the second petition on the very next day, thereafter, mentioning it 
on the same day, for the member to exercise her right. Even the petitioner 
is member of organization CJAR is not relevant or material but the fact 
remains that similar identically worded petition has been filed by petitioner. 
It was not proper to request Court No.2 to take up the matter when the 
other matter filed by CJAR was coming up on Friday before another 
Bench. At the most the prayer could have been to list the said petition 
along with the matter filed by CJAR which was coming up for hearing 
G 
on Friday, 10.11.2017 before Hon'ble Sikri, J. 
H 
18. Prayer has been made before us that Hon'ble Chief Justice 
of India should not have assigned the matter to 3-Judge Bench, and 
there was a judicial order of formation of Bench of 5 Judges in order of 
seniority which would include Hon'ble Chief Justice oflndia also. On
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 
211 
the one hand, the judicial order included Hon'ble the Chief Justice of A 
India to hear this matter on merits while, on the other hand, prayer is 
being made in the application filed today i.e. 13.11.2017 as well as by 
learned counsel appearing on behalf of the petitioner that Hon 'ble the 
Chief Justice of India should neither hear the matter, nor assign it on the 
administrative side. There is a contradiction in the order passed by Court 
B 
No.2 on 9.11.2017 andin their submission. 
19. As a matter of fact, this controversy has been set at rest that 
even when there is an allegation against Hoa'ble Chief Justice of India, 
it is he, who has to assign the case to a Bench, as considered appropriate 
by him. This has not only been settled by the Constitution Bench in 
CJAR (supra) vide aforesaid order dated 10.11.2017 but, this question 
also arose in the matter of Dr. D C Saxena v. Chief Justice of India 
(1996) 5 SCC 216, decided by a 3-Judge Bench of this Court wherein; 
c 
the petitioner Dr. DC Saxena, filed a public interest litigation which was 
heard by Hon'ble Chief Justice of India and two other Judges. The then 
Chief Justice oflndia and the two other Judges summarily dismissed the 
D 
petition which triggered the petitioner to file another petition; that got 
posted before a Bench of 3 Judges. Scandalous averments were made 
in the petition against the Hon'ble Chief Justice oflndia. The second 
writ petition was also
dismissed and, thereafter, this Court issued a show 
cause notice after dismissing the writ petition as to why contempt 
proceedings should not be initiated against him, as the persistent 
contumacious conduct of the petitioner had been to scandalize the court. 
It was submitted by the petitioner that contempt could not be initiated as 
the constitution of the Bench by the ChiefJustice oflndia was in violation 
of principles of natural justice as no one can be a Judge in his own 
cause. The often cited proposition that, Justice should not only be done 
E 
F 
but should manifestly and undoubtedly seem to have been done, and that 
nothing is to be done which creates a suspicion that there has been 
improper interference in the course of justice, had been raised by the 
petitioner in an unsuccessful attempt to take refuge under these 
propositions for his conduct. In spite of the objection Hon 'ble Chief 
Justice of India not to constitute a Bench, the Chief Justice of India 
G 
chose to constitute a Bench, with the Hon'ble Chief Justice himself as 
the presiding Judge. According to the petitioner the order passed by the 
Bench of Hon'ble Chief Justice of India was required to be ignored. 
This Court has laid down that the assertion that the first writ petition 
H
212 
SUPREME COURT REPORTS 
(2017] 13 S.C.R. 
A 
was not dismis$ed in the eye of law, tends to question the authority of 
B 
c 
D 
E 
F 
G 
H 
the court. This Court has observed thus : 
"51. It would, thus, be seen that when the first writ petition was 
dismissed by this Court, as a responsible citizen, the petitioner 
should have kept quiet. When the result animated by the petitioner 
was not achieved, he embittered to foul at the process of this 
Court and emboldened to file the second writ petition with 
imputation made against this Court, in particular targeting the Chief 
justice of india, Justice A.M. Ahmadi. As stated hereinbefore and 
need not 'be reiterated once over that it is the duty of the Court to 
hear and decide any matter posted for admission. Therefore, there 
is nothing improper for the first Court presided over by the Chief 
justice of india to hear and decide the matter. When it came up 
for admission, the Court appears to have 'been persuaded to 
ascertain the correctness of the allegations made in the writ 
petition. This Court obviously before issuing notice had sent for 
and directed the Solicitor General to obtain the information from 
the Government as to the correctness of the allegations made 
before deciding whether the Court would exercise its prerogative 
power under Article 32 to issue directions as sought for. In 
furtherance thereof, the Solicitor General admittedly placed before 
the Court the record. On perusal thereof, the first Court
had 
declined to exercise the power as enumerated and obviously stated 
by the petitioner that the exercise of the power under Article 32 
was not appropriate since the Government in the Defence 
Department could recover from the Prime Minister's Secretariat 
or from the Congress Party, as the case may be, all the arrears, if 
any, due and payable by the respective entities. It is not obligatory 
for this Court to give reasons for dismissing the writ petition. Day 
in and day out in countless cases, while refusing to interfere with 
the orders this Court dismisses the petitions be they filed under 
Article 32 or 136 of the Constitution in limine. It is also seen that 
though the case was adjourned for two weeks, no doubt, it was 
not posted on that day but it was listed sometime thereafter. In 
the proceedings of the Court recorded by the staff, it was recorded 
that the Solicitor General for India appeared in the Court in his 
official capacity. Shri Dipankar Gupta as Solicitor General or in 
personal capacity obviously acted as amicus on behalf of the Court.
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 
Being the Solicitor General for India, he was directed to have 
consultation with Government Departments and to obtain needed 
information. In appropriate cases this procedure is usually adopted 
by the Comi. Recording of the proceedings by the Court generally 
is not noted by the Court. Is it improper for the Chief Justice to 
hear the case? Was the dismissal totally unjust and unfair for not 
recording the reasons? The petitioner obviously with half-baked 
knowledge in law mixed up the language as "improper for Chief 
justice of india to hear it", "Dismissal of the 'grouse' of the 
petitioner was totally unjust, unfair, arbitrary and unlawful, flagrant 
violation of mandate of Article 14", "Violation of the sacred oath 
of office" and to "declare Justice A.M. Ahmadi unfit to hold the 
office as Chief justice of india". When these imputations were 
pointed out to the petitioner by a three-Judge Bench presided over 
by brother Verma, J. while dismissing the second writ petition, to 
be scandalous and reckless, he had stated that he "stood by" those 
allegations. He reiterated the same with justification in his 
preliminary submissions. He has stated that the accusations made 
were truthful and 'carefully' worded. In this backdrop scenario, 
213 
A 
B 
c 
D 
the effect of these imputations is obviously reckless apart from 
scandalising this Court, in particular the Chief justice of india and 
was intended to foul the process of the
Court or lower or at any 
rate tends to lower the authority of the Court in the estimate of E 
the public and tends to undermine the efficacy of the judicial 
process. It would, therefore, be clear that the accusations are 
gross contempt. At the height of it, he stated that since the first 
writ petition was not disposed of by a Bench ofnot less than five 
Judges, the writ petition was not dismissed in the eye of law and 
F 
the order of dismissal is non est and it is "not decided and disposed 
of constitutionally''. This assertion of the petitioner flies in the 
face of the judicial finality of the order of this Court and the 
assertion tends to question the authority of the Court. It creates 
tendency to obstruct the administration of justice and, therefore, it 
would be an outrageous criminal contempt." 
20. This Court also considered the allegation whether the Chief 
Justice could not constitute the Benches, where imputations were made 
against him; this was also held aggravate the contempt. This Court has 
laid down that when imputations were made against the Chief Justice, it 
G 
H
214 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2017] 13 S.C.R. 
is the prerogative of the Chief Justice to constitute the Benches and 
assign judicial business, and it would not hinge on the whim of the litigant. 
This Court has observed : 
"26. When imputations were made against the Chief Justice, The 
petitioner assumed, in our view, "wrongly" that the CHIEF 
JUSTIC.Et OF INDIA cannot constitute benches nor should he 
discharge the functions of Chief Justice until the matter is decided. 
On appointment by the President by a warrant and on his taking 
oath of office, the CHIEF JUSTICE OF INDIA becomes entitled 
to discharge the functions and duties of that office including 
constitution of benches and assignment of judicial work to judges 
as per procedure. This responsibility flows from the office and 
none including a litigant has right to demand for contra-position. 
As regards his personal disposition to hear a case by a bench of 
which he is a member, it is his own personal volition. The Chief 
Justice's prerogative to constitute benches and assignment of 
.. judicial business would not hinge on the whim of a litigant. 
27. The ~ecisions of different benches are the decisions of the 
Court. For the convenient transaction of business, the senior Judge 
among the members composing the bench gets the privilege to 
preside otver the bench but the decision is that of the Court. The 
members composing the bench collectively speak for the Court 
and would bear
collective responsibility for the decision unless 
separate opinions are expressed by individual members composing 
the bench. Majority opinion is the law as envisaged under Article 
145(5) of the Constitution. Their opinion or order thus is the opinion 
or order of the Court. The minority opinion also would form part 
of the judgment or order but remains the minority view. The Chief 
Justice is first among the colleagues." 
"52. Omission to record reasons, according to the petitioner, is 
violative of the principles of natural justice. The Chief justice of 
india has committed impropriety in deciding the matter. As stated 
earlier, the decision is that of the Bench on behalf of the Court 
and the Chief Justice, being the seniormost among the members 
constituting the Bench, had spoken on behalf of the Bench. 
Therefore, the attribution of improper motives scandalises the 
efficacy of judicial adjudication and per se contumaciously lowers 
or at any rate tends to lower the dignity or authority of the Court.
KAMIN! JAISWAL v. UNION QF INDIA & ANR. 
215 
The prayer for prosecution of the Chief Justice, though sought in 
A 
Item 14(a) and (d) to be withdrawn, which would be of no 
consequence, is, therefore, unbelievably outrageous contempt. 
61. Item 13 relates to the interference with the judicial management 
of the Court and the duty of a Judge. When an accusation is 
made against the presiding Judge, by implication, until the matter 
B 
is decided, the Presiding Officer has to desist from discharging 
the judicial duties by his proceeding on leave and the seniormost 
puisne Judge would assume the office of the Chief Justice. This 
is a deliberate interference in the judicial management tending to 
sow disaffection in the efficacy of dispensation of justice. The 
further accusation that the Chief Justice of India should not 
C 
constitute a Bench of the Judges appointed during his tenure so 
that "he (Chief Justice oflndia)" "may not directly or indirectly 
influence any of the Judges hearing the matter". It would, thus, 
be in unequivocal loud expression that the conternnor attributed 
motives to the Chief Justice of India that the Judges appointed 
D 
during his tenure as Chief Justice are amenable to his influence in 
judicial adjudication and would decide the causes by pressure or 
influence directly or indirectly brought by the Chief Justice of 
India. Equally, it is a corollary that these Judges are amenable to 
influence and thereby they do not decide the cases posted
before 
them legally and objectively. The Court is subject to pressures 
E 
and decides cases under influence. These accusations are 
flagrantly outrageous to scandalise the Court. Though the 
contemnor has sought leave to modify this statement, ultimately, 
in his amended statement, he did not touch upon this aspect of the 
matter. In other words, as stated earlier, he stood by his averments 
calculatedly made. His justification that Justice P.N. Bhagwati 
(as he then was) decided first S.P. Gupta case when allegations 
against Chief Justice of India Chandrachud were made has no 
application. In a judicial proceedings taken by this Court, the office 
of the Chief Justice of India was directly involved in appointment 
of additional Judges or extension of their tenure as additional Judges 
or their transfer. The ChiefJustice oflndia reclused himself from 
the Bench; resultantly, the senior most puisne Judge came to 
preside over that Bench. Thus, the contemnor has committed the 
contempt of this Court under Article 129 of the Constitution." 
F 
G 
H
216 
A 
B 
c 
D 
E 
F 
SUPREME COURT REPORTS 
[2017] 13 S.C.R. 
21. This Court has also laid down in Dr. DC Saxena (supra) that 
it was the duty of the Chief Justice to assign judicial work to brother 
Judges. By doing so, he did not become a Judge i11 his own cause. It is 
contempt to imply that the Chief Justice would assign it to a Bench 
which would not pass an order adverse to him. It is also contempt to 
imply that the Judges would be so amenable to comply that the Bench 
which heard the second writ petition could not have heard it. This Court 
has laid down these allegations aimed at bringing the administration of 
justice in disrepute. This Court has observed: 
"81. It is the duty of the Chief Justice of a court to assign judicial 
work to his brother Judges. It was, therefore, the duty of the 
respondent to assign the second writ petition to a Bench to hear 
it. By doing so he did not, as is alleged, become a Judge in his own 
cause. It is contempt to imply, as the alleged contemnor does, that 
the respondent would assign it to a Bench which would not pass 
an order adverse to him. It is also contempt to imply that Judges 
would be so amenable. To plead that the Bench that heard the 
second writ petition could not have heard it and, therefore, could 
not have dismissed it and that it is deemed to be still pending is to 
add to the contempt. These allegations are also aimed at bringing 
the administration of justice into disrepute." 
22. The submissions so raised,
and averments so made, in this 
petition, and the entire scenario created by filing of two successive 
petitions, are really disturbing a lot. The entire judicial system has been 
unnecessarily brought into disrepute for no good cause whatsoever. It 
passes comprehension how it was, that the petitioner presumed, that 
there is an FIR lodged against any public functionary. There is an averment 
made in the writ petition that it is against the highest judicial functionaries; 
that FIR has been recorded. We do not find reflection of any name of 
the Judge of this Court in the FIR. There is no question of registering 
any FIR against any sitting Judge of the High Court or of this Court as it 
is not permissible as per the law laid down by a Constitution Bench of 5 
G 
Hon'ble Judges of this Court in the case of K. Veeraswami v. Union of 
India (1991) 3 SCC 655 wherein this Court observed that in order to 
ensure the independence of the judiciary the apprehension that the 
Executive being largest litigant, it is likely to misuse the power to prosecute 
the Judges. Any complaint against a Judge and investigation by the CBI 
if given publicity, will have a far reaching effect on the Judge and the 
H
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 
217 
litigant public. The need, therefore, is of judicious use of action taken 
A 
under the Act. There cannot be registration of any FIR against a High 
Court Judge or Chief Justice of the High Court or the Supreme Court 
Judge without the consultation of the Hon'ble Chief Justice oflndia and, 
in case there is an allegation against Hon 'ble Chief Justice of India, the 
decision has to be taken by the Hon'ble President, in accordance with 
the procedure prescribed in the said decision. Thus, the instant petitions, 
as filed, are a misconceived venture inasmuch, as the petition wrongly 
presupposes that investigation involves higher judiciary, i.e. this Court's 
functionaries are under the scanner in the aforesaid case; that 
independence of judiciary cannot be left at the mercy of the CBI or that 
of the police is a red herring. There cannot be any FIR even against the 
Civil Judge/Munsif without permission of the Chief Justice of the 
concerned court; and rightly, FIR has not been registered against any 
sitting Judge. Otherwise, on unfounded allegations, any honest Judge to 
the core, can be defamed, and reputation can be jeopardized. No Judge 
can be held responsible for what may, or has happened in the corridors, 
or for 'who purports to sell whom'. The alleged actions of a retired 
Judge of a High Court, allegedly assuring and promising, a 'favourable' 
decision in the aforesaid circumstances of the case which was then 
pending
before this Court, in the aforesaid circumstances and has assured 
favourable orders, begs the question, and we wonder, as to what 
favourable orders have been passed. As is apparent from the aforesaid 
narration of facts, there was no favourable order granted by this Court 
in favour of the medical college for the current academic session 2017-
18, rather its inspection for considering confirmation ofletter of permission 
for the next year 2018-19 had been ordered. The decision will be in the 
hands of the MCI. After decision has been rendered on 18.9.2017 by 
this Court, an FIR has been lodged and.it appears that money was yet to 
be exchanged. The FIR dated 19.9.2017 reflects that Mr. B.P. Yadav, 
Justice Quddusi, Ms. Bhawana Pandey, and Mr. Sudhir Giri were likely 
to meet Mr. Biswanath Agarwala for getting favourable order at Delhi 
shortly; whereas this Court has already decided the matter on 18.9.2017. 
Thus it is a far fetched and too tenuous to even assume or allege that the 
matter was pending in this Court for which any bribe was to be delivered 
to anyone. 
23. There is no conflict of interest in such a matter. In case Judge 
is hearing a matter and if he comes to know that any party is 
B 
c 
D 
E 
F 
G 
H
218 
A 
B 
c 
D 
E 
SUPREME COURT REPORTS 
[2017] 13 S.C.R. 
unscrupulously trying to influence the decision making or indulging in 
ma! practices, it is incumbent upon the Judge to take cognizance of such 
a matter under Contempt of Courts Act and to deal with and punish such 
person in accordance with law as that is not the conflict of interest but 
the purpose for which the entire system exists. Such things cannot be 
ignored and recusal of a Judge cannot be asked on the ground of conflict 
of interest, it would be the saddest day for the judicial system of this 
country to ignore1such aspects on the unfounded allegations and materials. 
It was highly improper for the petitioner to allege conflict of interest in 
the petition filecl that the Hon 'ble Chief Justice of India should not hear 
on judicial side or allocate the matter on the administrative side. ltappears 
that in order to achieve this end the particular request has been made by 
filing successive petitions day after the other and prayer was made to 
avoid the Hon'ble Chief Justice of India to exercise the power for 
allocation of cases which was clearly an attempt at forum hunting and 
has to be deprecated in the strongest possible words. Making such 
scandalous remarks also tantamount to interfering with administration 
of justice, an advocate cannot escape the responsibility on the ground 
that he drafted the same in his/her personal capacity as laid down in 
Shamsher Singh Bedi v. High Court of Punjab &
Haryana ( 1996) 7 
SCC 99. In Charan Lal Sahu v. Union of India (1988) 3 SCC 255, this 
Court has observed that in a petition filed under Article 32 in the form of 
PIL attempt of mudslinging against the advocates, Supreme Court and 
also against the other constitutional institutions indulged in by an advocate 
in a careless manner, meaningless and as contradictory pleadings, clumsy 
allegations, contempt was ordered to be drawn. The Registry was directed 
not to entertain any PIL petition of the petitioner in future. 
F 
24. In R. K. Anand v. Delhi High Court (2009) 8 SCC 106, this 
Court observed that there could be ways in which conduct and action of 
malefactor was professional misconduct. The purity of the court 
proceedings has to be maintained. The Court does not only have the 
right but also an obligation to protect itself and can bar the malefactor 
from appearing before the Court for an appropriate period of time. There 
G 
is a duty cast upon an Advocate to protect the dignity of this Court not to 
scandalize the very institution as observed in the said decision. 
H 
25. In Leila David v. State of Maharashtra (2009) 10 SCC 337 
this Court observed that making of scandalous remarks against High 
Court Judges and seeking their punishment on the allegation of their
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 
being party to genocide petition was dismissed and incumbent was 
pnnished. Scandalous allegation cannot be made against the Judges as 
observed in Amrik Singh v. State (Delhi Admn.) ( 1971) 3 SCC 215. In 
Bal Kishan Giri v. State of U.P (2014) 7 SCC 280 this Court has 
observed that the allegation that the accused had the links with 3 Judges 
219 
A 
of the High Court who would favour in getting the bail, this Court held 
B 
that such allegations are too serious, scandalous and admittedly sufficient 
to undermine the majesty oflaw and dignity of the court amounting to 
contempt. Plea by conternnor a practicing lawyer that he was misguided 
by another advocate is an afterthought. He must since have been fully 
aware of the consequence of allegations made by him. Sentence of 
simple imprisonment was imposed by the High Court and the same was 
confirmed by this Court. This Court has also observed that the power 
for contempt is a rule specified which by very nature calls for exercise 
with great care and caution and such power ought to be exercised only 
where silence is nothing but an option. The power to punish for contempt · 
is to secure public respect and care for judicial process. 
26. This Court considered various categories of forum shopping 
in Union of India & Ors. v. Mis. CJPLA Ltd. & Am: (2017) 5 SCC 
262. Even making allegations of a per se conflict of interest require the 
matter could be transferred to another Bench, has
also been held to be 
another form of forum hunting. This Court has considered various 
decisions thus : 
"146. The learned Solicitor General submitted that Cipla was guilty 
of forum shopping inasmuch as it had filed petitions in the Bombay 
High Court, the Kamataka High Court and also an affidavit in the 
Delhi High Court as a member of the Bulk Drug Manufacturers 
Association and had eventually approached the Allahabad High 
Court forreliefresulting in the impugned judgment and order dated 
3-3-20041. It was submitted that since Cipla had approached 
several constitutional courts for relief, the proceedings initiated in 
the Allahabad High Court clearly amount to forum shopping. 
147. We are not at all in agreement with the learned Solicitor 
General. Forum shopping takes several hues and shades and 
Cipla's petitions do not fall under any category of forum shopping. 
148. A classic example of forum shopping is when a litigant 
approaches one Court for relief but does not get the desired relief 
c 
D 
E 
F 
G
220 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2017] 13 S.C.R. 
and then approaches another Court for the same re lief. This 
occurred in Raj iv Bhatia v. Govt. (NCTofDelhi). The respondent 
mother of a young child had filed a petition for a writ of habeas 
corpus in the R.ajasthan High Court and apparently did not get the 
required relief from that Court. She then filed a petition in the 
Delhi High Court also for a writ of habeas corpus and obtained 
the necessary relief. Notwithstanding this, this Court did not 
interfere with the order passed by the Delhi High Court for the 
reason that this Court ascertained the views of the child and found 
that she did not want to even talk to her adoptive parents and 
therefore the custody of the child granted by the Delhi High Court 
to the respondent mother was not interfered with. The decision of 
this Court is on its own facts, even though it is a classic case of 
forum shopping . 
.149. In Arathi Bandi v. Bandi Jagadrakshaka Rao this Court 
noted that jurisdiction in a court is not attracted by the operation 
or creation of fortuitous circumstances. In that case, circumstances 
were created by one of the parties to the dispute to confer 
jurisdiction on a particular High Court. This was frowned upon by 
this Court by observing that to allow the assumption ofjurisdiction 
in created circumstances would only result in encouraging forum 
shopping. 
150. Another case of creating circumstances for the purposes of 
forum
shopping was World Tanker Carrier Corpn. v. SNP 
Shipping Services (P) Ltd. wherein it was observed that the 
respondent/plaintiff had made a deliberate attempt to bring the 
cause of action, namely, a collision between two vessels on the 
high seas within the jurisdiction of the Bombay High Court. 
Bringing one of the vessels to Bombay in order to confer 
jurisdiction on the Bombay High Court had the character of forum 
shopping rather than anything else. 
151. Another form of forum shopping is taking advantage of a 
view held by a particular High Court in contrast to a different 
view held by another High Court. In Ambica Industries v. CC Ell 
the assessec was from Lucknow. It challenged an order passed 
by the Customs, Excise and Service Tax Appellate Tribunal 
("CESTAT") located in Delhi before the Delhi High Court. Cestat 
had jurisdiction over the State of Uttar Pradesh, NCT of Delhi
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 
221 
and the State of Maharashtra. The Delhi High Court·did not 
A 
entertain the proceedings initiated by the assessee for want of 
territorial jurisdiction. Dismissing the assessee 's appeal this Court 
gave the example of an assessee affected by an assessment order 
in Bombay invoking the jurisdiction of the Delhi High Court to 
take advantage of the law laid down by the Delhi High Court or 
B 
an assessee affected by an order of assessment made at Bombay 
invoking the jurisdiction of the Allahabad High Court to take 
advantage of the law laid down by it and consequently evade the 
law laid down by the Bombay High Court. It was said that this 
could not be allowed and circumstances such as this would lead 
to some sort of judicial anarchy. 
152. Yet another form of forum shopping was noticed in 
Jagmohan Bahl v. State (NCT of Delhi) wherein it was held 
that successive bail applications filed by a litigant ought to be heard 
c 
by the same learned Judge, otherwise an unscrupulous litigant 
would go on filing bail applications before different Judges until a 
D 
favourable order is obtained. Unless this practice was nipped in 
the bud, it would encourage unscrupulous litigants and encourage 
them to entertain the idea that they can indulge in forum shopping, 
which has no sanction in law and certainly no sanctity. 
153. Another category of forum shopping is approaching different 
courts for the same reliefbymaking a minor change in
the prayer 
clause of the petition. In Udyami Evam Khadi Gramodyog 
Welfare Sanstha v. State of U.P. it was noticed by this Court that 
four writ applications were filed by a litigant and although the 
prayers were apparently different, the core issue in each petition 
centred round the recovery of the amount advanced by the bank. 
Similarly, substituting some petitioners for others with a view to 
confer jurisdiction on a particular court would also amount to forum 
shopping by that group of petitioners. 
154. Finally and more recently, in Supreme Court Advocates-
on-Record Assn. v. Union of India (Recusal Matter) Khehar, 
J. noticed yet another form of forum shopping where a litigant 
makes allegations of a perceived conflict of interest against a 
Judge requiring the Judge to recuse from the proceedings so that 
the matter could be transferred to another Judge. 
E 
F 
G 
H
222 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2017] 13 S.C.R. 
155. The decisions referred to clearly lay down the principle that 
the Court is reGjuired to adopt a functional test vis-a-vis the litigation 
and the litigant. What has to be seen is whether there is any 
functional similarity in the proceedings between one court and 
another or whether there is some sort of subterfuge on the part of 
a litigant. It is this functional test that will determine whether a 
litigant is indulging in forum shopping or not." 
27. In view of the aforesaid it is clear that the submission raised 
that Hon'ble Chief Justice oflndia should not hear the matter or should 
not assign it on administrative side is highly improper. In our opinion 
there was no impropriety in assigning this matter to this Bench rather it 
was a constitutional, imperative as per the mandate of the 5 Judge Bench, 
Supreme Court Rules, 2013 as well as the decision in Dr.DC Saxena 
(supra). It was an attempt of choosing a forum by submitting that Hon'ble 
Chief Justice of India should not have formed the Bench. Even Court 
No.2 in its order dated 9.11.2017 did not exclude Hon'ble Chief Justice 
of India from hearihg the matter. 
28. Yet anotl)er disturbing feature which aggravates the situation 
is that prayer has been made, that one ofus, Justice A. M. Khanwilkar, 
should recuse from the matter. This is nothing but another attempt of 
forum hunting which cannot be permitted. Rather this kind of prayer 
was
held to be contemptuous, aggravating the contempt in the case of 
Dr. D C Saxena (supra). This is yet another strategy to succeed in the 
attempt that the Hon 'ble CJ! should not take up the matter himself in the 
judicial side and administrative side for what may apply to and hold 
good for one ofus will be equally applicable to Hon 'ble CJ!. Though it 
was submitted that there is no allegation againstJ usticeA. M. Khanwilkar 
but since he decided the matter of medical college with respect to which 
FIR has been lodged, he should recuse. In our opinion, rather it is the 
duty of the Bench to take up such matter firmiy; such unscrupulous 
allegations and insinuations cannot be allowed to be hurled by oral prayer 
made on behalf of the petitioner for recusal. This is simply deprecated 
and we find that it is another attempt to bring the system in disrepute, 
casting of unwarranted aspersions tantamounts to seriously jeopardizing 
the independence of the judiciary. 
29. Though it is true, that none ofus is above law; no person in the 
higher echelons is above the law but, at the same time, it is the duty of
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 
223 
both the Bar and the Bench, to protect the dignity of the entire judicial A 
system. We find that filing of such petitions and the zest, with which it is 
pursued, has brought the entire system in the last few days to unrest. An 
effort was made to create ripples in this Court; serious and unwanted 
shadow of doubt has been created for no good reason whatsoever by 
way of filing the petition which was wholly scandalous and ought not to 
have been filed in such a method and manner. It is against the settled 
proposition oflaw. Ultimately after arguing at length, at the end, it was 
submitted by the petitioner and h~r counsel that they were not aiming at 
B 
any individual. If that was not so, unfounded allegations ought not to 
have been made against the system and that too against the Hon'ble 
Chief Justice of this country. In case majesty of our judicial system has 
to survive, such kind of petitions should not have been preferred that too 
against the settled proposition of law laid down by this Court in the 
aforesaid decisions of this Court in Dr. D C Saxena (supra) and K. 
Vt?eraswami (supra). 
' 
30. Submission was also made that unprecedented hearing was 
done on Friday by a Constitution Bench of this Court. It was a fait 
accompli and circumstances compelled hearing on 10.11.2017 as on 
Thursday in this case, order was passed bypassing the power ofHon'ble 
Chief Justice oflndia to constitute a 5-Judge Bench in order of
seniority 
including the Hon'ble Chief Justice of India. It was not permissible as 
held by this Court in CJ AR and hearing of the instant matter was 
scheduled for Monday, i.e. 13.11.2017, and Friday was the only day 
available on which the law was required to be settled otherwise judicial 
order was binding and it was necessary to decide the question as other 
Bench had requested the Hon'ble Chief Justice of India to assign this 
matter to an appropriate Bench. As Hon'ble Chief Justice of India had 
to assign it to a Bench, situation of dilemma was created for Hon'ble 
Chief Justice of India whether to assign the matter of CJAR to an 
appropriate Bench or to go by the judicial order by constituting a Bench 
of 5 senior Judges on 13.11.2017. Thus as per the judicial order matter 
was required to be heard on Monday i.e. 13.11.2017. No other working 
day was intervening on which this issue was required to be settled. Thus 
a Constitution Bench was required to be constituted on the day which 
was available for deciding the issue so as to decide the issue whether by 
judicial order case can be assigned to a particular Bench or it is in ambit 
of power of Hon'ble Chief Justice of India to assign the case. As that 
c 
D 
E 
F 
G 
H
224 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2017] 13 S.C.R. 
issue has been settled by the Constitution Bench decision relying on an 
earlier decision in the case of Prakash Chand (supra), roster making is 
the prerogative of Hon'ble Chief Justice of India was laid down in the 
case of Prakash Chand (supra). Besides the Supreme Court Rules, 
2013 also provides that the Hon'ble Chief Justice oflndia has to assign 
the case. The cases cannot be assigned by judicial order. Such judicial 
order is simply to be ignored as it is not open to the Judges to decide 
which matter is to be heard by whom as laid down by Constitution Bench. 
Prayer made that the decision of the Constitution Bench is to be ignored 
by us, is wholly lJilfounded and we must go by the order of the Division 
Bench passed on 9.l l.2017 and we should refer the matter to 5 
seniormost Judg~s is preposterous that would include the Hon 'ble Chief 
Justice oflndia also. The prayer is per se very contradictory in its nature 
and has no legs to stand. Let the good sense prevail over the legal 
fraternity and amends be made as lot of uncalled for damage has been 
made to the great Institution in which public reposes their faith. We 
deprecate the conduct of forum hunting that too involving senior lawyer 
of this Court. Such conduct tantamounts wholly unethical, unwarranted 
and nothing but forum hunting, as discussed by this Court in the case of 
Cipla (supra) . 
31. On behalf of the petitioner for recusal of
Hon 'ble A M 
Khanwilkar, J., reliance has been placed on the decision in Ranjit Thakur 
v. Union of India & Ors. (1987) 4 SCC 611 in which it has been laid 
down that reasonableness of the apprehension or bias in the mind of the 
party has to be seen. We find that there is no room for the petitioner to 
infer the bias. There is no reasonable basis to pray for recusal ofHon'ble 
A.M.Khanwilkar, J. In our opinion that tantamount to contempt of court 
and an attempt at forum hunting. Reference has also been made to the 
decision in Supreme Court Advocates on Record Association v. Union 
of India (2016) 5 SCC 808 in which maxim nemo judex in causa sua 
has been considered, that no man is to be judge in his own cause, should 
be held sacred and that maxim is not to be confined to a case in which 
he is a party but applies to a cause in which he has an interest. It is far 
fetched and too tenuous to submit that any Judge of this Court much less 
Hon'ble A.M. Khanwilkar, J. has any interest in the subject matter and 
for that reason in spite of there being no allegation in the writ petition, 
Shri Justice A. M. Khanwilkar should recuse. There is no room for 
reasonable suspicion even in remote and argument is simply too derogatory
KAMIN! JAISWAL v. UNION OF INDIA & ANR. 
225 
to be made, probably that has been made anyhow or somehow to protect 
A 
the case and to bring disrepute to this Court. We cannot fall prey to such 
unscrupulous devices adopted by the litigants, so as to choose the 
Benches, as that is a real threat to very existence of the system itself 
and it would be denigrated in case we succumb to such pressure tactics. 
32. The petition is liable to be dismissed and is hereby dismissed. 
B 
Kalpana K. Tripathy 
Petition dismissed.