Mehta, representing the ED, submitted before a bench headed by Chief Justice D.Y. Chandrachud, that “first of all, I cannot choose a bench, I cannot avoid a bench. I am saying this with a degree of seriousness”.
The Chief Justice told Mehta that he could have taken it up when Chief Justice Lalit was hearing it but if he were to take it up now, three benches would have to be broken – his bench, Justice Ajay Rastogi’s bench, and Justice S. Ravindra Bhat’s bench. He added that due to these practical issues, “I said the second most senior judge available will take it up”.
The Chhattisgarh government took objection to a bench headed by Justice Shah hearing the matter, saying the matter should go before Justices Rastogi or Justice Bhat, who were members of earlier bench. Mehta then objected to the “disturbing practice” of maligning a bench.
In connection with the case, Mehta said the judges (on the bench which previously heard the matter) said they have not gone into the sealed covers and asked him to point out how much time will be needed for arguments and he told them that substantial time was needed.
Mehta said then Chief Justice Lalit had no time (due to the retirement on November 8) and it was delisted and then the matter was listed before a bench headed by Justice Shah. He added that a request was made by the respondents in the matter that the bench should not hear the case and it should go before the earlier bench. “That is not only avoiding the bench but also choosing the bench,” he said.
The Chief Justice said he would need to check whether the former Chief Justice listed it before court number 5. Senior advocate Kapil Sibal, representing the Chhattisgarh government, said the order only says that the registry is directed to list the matter before the appropriate bench.
Mehta said even if it does not go in court 5, he has absolutely no difficulty, rather he has a worry on a larger scale. “This is happening too frequently. One order in a political matter not to your liking, you gather NGOs and malign the entire institution…. One wrong order, articles are written. This is a part of that,” he said.
Chief Justice Chandrachud told Mehta one of the practices of this court, one good practice, is that when a senior judge retires, the matter goes to the next available senior judge of the bench”. Mehta said he has no issue as “I can’t choose a bench or avoid a bench”.
The Chief Justice then said he tries to be as objective as possible by applying a golden yardstick that when the matter goes to the next judge and if that judge refuses saying he has no time, it goes to another bench. Mehta said some benches will be maligned. Sibal retorted that “Justice Hima Kohli was on that bench, did we malign? We just said hold it over”.
Mehta then suggested that the matter may be taken up by the combination of the Chief Justice, and Justices Rastogi and Bhat. Sibal said they have no problem with any bench.
Earlier this month, the matter came before a bench headed by justice Shah. The Chhattisgarh government counsel said the matter should be heard by benches led by either Justices Rastogi or Bhat, the remaining members of the previous bench after the retirement of Chief Justice Lalit. The matter was then adjourned.
On October 20, the Chhattisgarh government told the Supreme Court that Chief Minister Bhupesh Baghel never met any high court judge in connection with the scam after the Centre’s counsel had indicated his probable complicity in the scam in the state.
Sibal, representing the state government, then submitted before a bench headed by Chief Justice Lalit: “We took instructions. The Chief Minister never met any high court judge.” Mehta, representing the ED, replied that he had only referred to a WhatsApp chat.
In the previous hearing, Mehta had cited a WhatsApp chat of an alleged close aide to the Chief Minister that a judge had met the CM two days before bail was granted to some of the accused in the NAN scam case.
The ED had registered a money laundering case in connection with the scam against two IAS officers. The NAN scam surfaced in 2015, and those involved have been accused of supplying low quality rice, grams, salt etc. The ED had moved the apex court seeking transfer of trial from Chhattisgarh alleging a senior government official attempting to weaken the predicate offence against the accused.