Prominent lawyer Prashant Bhushan has in a letter to the Supreme Court registry — his second in successive days — asked it to explain the abrupt deletion from the cause list of a batch of PILs seeking contempt proceedings against the Centre over the delay in the appointment and transfer of high court judges.

Dated December 8 but made public on Monday, Bhushan’s letter said that since the bench hearing the matter had ordered it to be listed on December 5, the deletion was “extremely unusual”, “serious and peculiar”, and a “grave impropriety”.

The letter said that the reasons for the deletion should be provided “in writing” to the petitioners, failing which the petitioners “will be constrained to avail appropriate legal remedies”.

Citing Rule 7 of Order III of Supreme Court Rules, 2013, the letter said the registrar has to mandatorily follow the rules of listing and could “only have deviated from the rules and procedure for listing a matter on a specific date as directed by a judicial order, if there were special orders from the Chief Justice”.

On December 5, Justice Sanjay Kishan Kaul, the judge presiding over the bench
that was to have heard the matter, had in the open court expressed his surprise at the deletion and said: “Some things are best left unsaid.” Making it clear that he did
not know of the deletion, he had added that he was sure the Chief Justice was aware.

Justice Kaul’s comments had come after Bhushan, who is appearing in the matter for the NGO Centre for Public Interest Litigation (CPIL), had drawn the judge’s attention to the deletion.

The bench of Justice Kaul and Justice Sudhanshu Dhulia had kept the Centre on its toes on the judges’ apointments and transfers, coming down heavily on it for selectively clearing some names recommended by the collegium while holding back others in violation of procedure. Justice Kaul retires this month.

In the letter, Bhushan wrote: “An important matter related to the appointment of judges, Centre for Public Interest Litigation v Union of India (Writ Petition (C ) 895/2018), was to be listed as item 13.1 in court 2 on the 5.12.2023, pursuant to a judicial order dated 20.11.2023. It was listed as item 13 on the cause list published on the Supreme Court website on 1.12.2023 at 19:09:58. In the cause list subsequently available on the website of the Supreme Court, item 13 is omitted from the list (list published on 2.12.2023 at 13.11:00).

“On the day of the hearing, I was informed by the advocate in a connected matter, that the case had been deleted from the cause list though the cause list published on the board outside court 2 still had the matter listed as item 13. There was no SMS or email intimation by the registry either to me as the advocate for the petitioner or to the petitioner organization regarding any deletion.

“When the matter was not called out in turn, I mentioned it before the bench led by Hon’ble Justice Kaul (sitting with Hon’ble Justice Dhulia), who stated that he had not deleted the matter, that the Chief Justice would know about this and further that ‘some things were best left unsaid’.”

The veteran advocate pointed out that he was representing the petitioners since 2018 in this important case seeking accountability of the executive in matters of judicial appointments, impinging upon the independence of the judiciary.

“…this seemed extremely unusual, especially since the deletion was without the knowledge of the presiding senior judge and in violation of a judicial order. This matter reflects grave impropriety by the registry in deleting the case from the cause list, despite a judicial order to the contrary, directing that the case be listed on a fixed date, that is 5.12.2023,” Bhushan wrote.

“The bench hearing this matter had in a series of earlier orders passed strict directions for compliance by the union government in matters related to notifying judicial appointments and was monitoring progress in a time-bound manner. Hence the importance of the specific date for the hearing,” he added.

Bhushan said the bench had been closely monitoring compliance by the government, with various timelines set out for judicial appointments, transfers, and reiterations made by the collegium, to ensure smooth functioning of the judicial system.

“If a specific date case such as the present one could not be listed, instructions for the listing of the same must be obtained from the presiding judge himself,” Bhushan said, citing court rules.

“In this matter, the presiding judge was completely unaware of non-listing of this case and has categorically stated so in court, hence the deviation from said rules are even more serious and peculiar.

“It is therefore in the interest of justice that the special circumstances and reasons for the deletion of this case (and any administrative orders passed in relation thereto) be provided in writing to the petitioner/advocate for the petitioner, failing which, the petitioners will be constrained to avail appropriate legal remedies,” Bhushan wrote.

On December 7, the lawyer had written to the registry complaining that petitions challenging the invocation of the anti-terror law UAPA and criminal charges against journalists, advocates and others had been delisted from a bench headed by Chief Justice D.Y. Chandrachud and posted before other judges in violation of rules.