Wednesday, November 22, 2017
Coming straight to the key point, the Supreme Court on November 14 dismissed the petition filed by advocate Kamini Jaiswal seeking a Special Investigation Team for a probe into the allegation of middlemen-judges nexus in the medical admission scam as an effort to “create ripples” and snubbed advocate Prashant Bhushan for bringing disrepute to judiciary by making false, scandalous and unsubstantiated allegations against Chief Justice of India (CJI) Dipak Misra. This is really most shocking. It merits no reiteration that Chief Justice of India is the highest post for a Judge in the Supreme Court which is the highest court in the country and is revered and held in highest esteem by the people of India. It is just not in order to level scandalous allegations against CJI without producing any substantial and concrete evidence to prove the complicity of CJI in any scam.
To put things in perspective, the Supreme Court Bench of Justices RK Agarwal, Arun Mishra and AM Khanwilkar rejected the petition filed by Campaign for Judicial Accountability and reforms (CJAR) that demanded the setting up of a Special Investigation Team (SIT) headed by a retired CJI to take over the probe from the Central Bureau of Investigation (CBI). The CBI FIR named former Orissa High Court Judge Justice (Retd) IM Quddusi, a local hawala operator Biswanath Agrawal and the owners of the Prasad Education Trust among others for hatching a conspiracy to fix the case in favour of the medical college in the Supreme Court. The CBI recovered Rs 1 crore that was allegedly paid as a bribe from an aide of Justice Quddusi.
To recapitulate, the case related to a Lucknow-based Prasad Education Trust (PET) run by BP Yadav and Palash Yadav, who were debarred by the Centre as late as on August 10, 2017 from admitting students to its medical course at Prasad Institute of Medical Sciences for the academic years 2017-18 and 2018-19. The college was also on the verge of losing its bank guarantee of Rs 2 crore. According to FIR filed by the CBI at the time when PET’s petition was pending in the Supreme Court, it got in touch with a retired Judge of Orissa High Court Justice (Retd) IM Quddusi who along with one lady Bhawana Pandey and a middleman Sudhir Giri advised the college to withdraw its writ petition from Apex Court. They in turn got in touch with an Odisha-based hawala operator Biswanath Agrawal, who claimed “very close contacts with senior relevant public functionaries” and sought a huge gratification for getting a favourable order from the Supreme Court. The CBI later arrested Agrawal with cash of Rs one crore received for the purpose.
Curiously enough, the CBI which arrested Justice Quddusi and Bhawna Pandey, later found that a conspiracy was hatched to withdraw the petition from Supreme Court and approach the Allahabad High Court. On , the Allahabad High Court reversed the Supreme Court order. The Medical Council of India then appealed on against this order to Supreme Court where PET submitted it will not take advantage of the High Court order. , a fresh petition was filed by Prakash Medical Institute before CJI Dipak Misra who passed an order on to restrain MCI from encashing the bank guarantee. Further, the Court allowed the MCI to conduct fresh inspection of the college to consider permission for admitting students for 2018-19.
While craving for the exclusive indulgence of my esteemed readers, let me inform them that the CBI made the seizure a day after a Supreme Court Bench headed by the CJI Dipak Misra on dismissed a petition filed by Prasad Education Trust seeking relief against the Government’s decision to debar them from admitting medical students for the next two years. The Supreme Court Bench deprecated the conduct of advocate Prashant Bhushan in no uncertain terms for unnecessarily dragging the name of the CJI Dipak Misra by casting aspersions on him without any proof. Undoubtedly, no one including myself has any legitimate right to cast aspersions on not just the CJI which is the highest august office but also on any other Judge at the drop of a hat without any substantive proof in hand because it severely tarnishes the reputation of Judges and this has a very adverse impact on the people’s unflinching faith in the judiciary which can never be good for a democratic country like India and it blemishes our country’s impeccable reputation at the international stage which cannot be allowed unless there are very strong and substantial grounds for doing so.
For my esteemed readers exclusive indulgence, let me also inform them that the Apex Court held that the CBI FIR did not name any Judge of a High Court or the Supreme Court for receiving any bribe to fix the case in the Supreme Court. Moreover, the court said when the alleged bribe money was exchanged, the case was not pending with the Supreme Court Bench. Justice Arun Mishra while writing the judgment for the Supreme Court Bench minced absolutely no words in making it crystal clear that, “Any complaint against a Judge and investigation by the CBI if given publicity will have a far reaching effect on the Judge and the litigant public…the petition wrongly presupposes that investigation involves higher judiciary, i.e. this court’s functionaries are under the scanner…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 jeopardised. No Judge can be held responsible for what may, or has happened in the corridors, or for ‘whop purports to sell whom’.”
Shedding further light on this, Justice Arun Mishra wondered how the order passed by the CJI debarring the medical college in question for this academic year amounted to “favourable order”. By any yardstick, this cannot be termed as a “favourable order”. He said that, “After decision has been rendered on by this court, an FIR has been lodged and it appears that money was yet to be exchanged…thus it is 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.”
Not stopping here, the Supreme Court Bench slammed Prashant Bhushan and minced no words to convey most unequivocally that, “An effort (by filing such petitions and the zest with which it is pursued) was made to create ripples in this court; serious and unwanted shadow of doubt has been created for no good reason by filing the petition which was wholly scandalous and ought not to have been filed.” Further, the Supreme Court Bench noted that by seeking recusal of Justice AN Khanwilkar (one of the Judges who passed the order), the petitioners aggravated the contempt. It needs no rocket scientist to conclude that the Supreme Court was particularly most miffed at the petitioner for directly questioning the integrity of such experienced and senior Judges of the Supreme Court who so far have always enjoyed an unblemished reputation.
As it turned out, although the Supreme Court three-Judge Bench led by Justice RK Agrawal while noting that the identical petitions filed by Campaign for Judicial Accountability and Reforms (CJAR) and Ms Kamini Jaiswal “seriously jeopardised the independence of the judiciary” termed the conduct of petitioners as “unethical, unwarranted, and amounting to forum hunting”. But at the same time it did not unleash the whip and spared the petitioners from facing contempt proceedings as the petitioner had stated that the petition does not intend to name any individual. Justice Arun Mishra, after reading out excerpts from the judgment, orally informed the courtroom that no contempt action was contemplated against Ms Jaiswal and her friends.
Be it noted, Justice Arun Mishra while speaking for the Bench of the Supreme Court which also included Justice AM Khanwilkar said that, “Let us unite and work for the welfare of the great institution”. The judgment also exhorted the legal fraternity to let good sense prevail saying that, “Let good sense prevail over the legal fraternity and amends be made as a lot of uncalled for damage has been made to the great institution in which the public repose their faith.” Very rightly said!
Truth be told, after a series of high-voltage hearings, one of them before a Constitution Bench on November 10, Justice Arun Mishra said very rightly that matter should not be aggravated any more. Justice Arun Mishra orally and candidly observed that, “We have observed in the judgment that we are not above the law. However high, we are not above the law. But everything should be as process. We still expect and hope the matter will stop at this.” The court said: “Though it is true that no one is above the law, no person in the higher echelons is above the law, but at the same time, it is the duty of both the Bar and the Bench to protect the dignity of the entire judicial system.” The court indicated that it was leaning in favour of bringing a quietus to the issue, saying goodwill should prevail.
It is of immense significance to note here that the Bench also re-asserted the recent Constitution Bench decision that the CJI was the master of the roster who alone could decide assigning hearing of a case. The controversy, a three-Judge Bench ruled, also settled the legal position that the Chief Justice of India (CJI) alone had the power to assign a case to a Bench even if there were allegations against him in the matter. Dismissing a plea by advocate Kamini Jaiswal, the Bench of Justices RK Agrawal, Arun Mishra and AM Khanwilkar said that, “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 Judges of this court in the FIR.”
For one, this judgment has sent a loud and clear message to one and all that no litigant can somehow dictate any CJI not to hear a particular case. The judgment said that it was not left to the “whim of the litigant” to tell the CJI not to hear a case. It observed that , “This court has laid down that when imputations are made against the Chief Justice, it 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.” The judgment further said that, “In fact, an allegation that the Chief Justice cannot constitute Benches, where imputations were made against him, only aggravates the contempt.”
In hindsight, while disaaproving of a judicial order by a 2 Judge Bench that had decided the composition of a Bench for hearing a corruption case, a five-Judge Constitution Bench headed by CJI Dipak Misra on November 10 ruled that it is the prerogative of the Chief Justice to decide what matter is heard by which Judge. The ruling effectively nullifies an order passed by a two-Judge Bench a day earlier directing that the case be posted before as Bench comprising the five senior-most Judges. In his order, the CJI sought to remove all misgivings by asserting his role as “the master of the roster” in order to protect the Supreme Court from anarchy. CJI Dipak Misra who was heading the Constitution Bench sought to dispel all wrong notions by asserting that, “There cannot be any kind of command directing the CJI to constitute a Bench. That authority is the CJI’s domain. The CJI is master of the roster and any order passed by any Judge allocating a matter to any Bench will not hold.”
It was also made clear that Judges are not responsible for “corridor” rumours. Recusal of a Judge cannot be sought in such instances on the ground of conflict of interest. The Bench held that, “No Judge can be held responsible for what may [happen] or has happened in the corridors, or ‘who purports to sell whom’.” It was also held that, “It is entirely the Judge’s prerogative to take cognisance under the Contempt of Court Act and punish a person who is unscrupulously trying to influence the decision-making or indulging in malpractices.”
Truly speaking, the verdict also said that, “The filing of successive petitions by CJAR and Ms Jaiswal and the prayer to keep the CJI from hearing these cases were clear attempt at forum-hunting. In this context, the judgment again referred to a past judgment where contempt was drawn against an advocate for “mudslinging” at the Supreme Court in a “careless manner” through “meaningless and contradictory pleadings, clumsy allegations.” It reasoned that Chief Justice Dipak Misra’s Bench had decided the medical college case in question on before the FIR was registered on . If so, the case was not pending before the CJI Bench. It referred to an unsuccessful attempt made by Ms Jaiswal’s lawyers that Justice Khanwilkar should recuse from the three-Judge Bench as he was part of the CJI Bench which decided the medical college case on September 18.
It must be brought out here that a three-Judge Bench headed by Justice RK Agrawal while dismissing a plea for SIT probe in an alleged case of bribery in the name of Judges, referred to a 1991 Constitution Bench judgment that held that registration of FIRs against sitting Judges of the higher judiciary was not permissible. Referring to the Constitution Bench verdict of 1991, the top court said it had observed that in order to ensure independence of judiciary, the apprehension that the executive being the largest litigant, it was likely to misuse the power to prosecute the Judges. It said there cannot be registration of FIR against the Judges of higher judiciary without consultation with the Chief Justice of India (CJI) and, in case there was allegation against the CJI, the decision has to be taken by the President in accordance with the procedure prescribed in the judgment.
Going forward, the Bench noted that, “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.” A valid point. There can be no denying it.
As things stand, the Bench also comprising Justices Arun Mishra and AM Khanwilkar said that, “Thus, the instant petitions as filed, are a misconceived venture in as much as the petition wrongly presupposes that investigation involves higher judiciary, that is 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.” The Apex Court said there was no “reflection” of any name of the Judge of Apex Court in the FIR lodged by the CBI in the case in which allegations of bribery were levelled for securing settlement of cases relating to medical colleges. It also noted with concern that, “Any complaint against a Judge and investigation by the CBI if given publicity, will have a far-reaching effect on the Judge and the litigant public.”
It is most concerning to note that in this particular case we saw how the office bearers of the Supreme Court Bar Association (SCBA) accused the petitioner-lawyers Prashant Bhushan, Kamini Jaiswal and Dushyant Dave who are all very senior and experienced lawyers of contempt of court for directly accusing CJI Dipak Misra. The SCBA President and senior advocate RS Suri, Vice President Ajit Sinha, Secretary Gaurav Bhatia and several other senior lawyers like Ashok Bhan and Aman Sinha accused the trio of browbeating the court. RS Suri lashed out saying that, “They file multiple petitions till they get favourable orders. This is forum shopping. This is getting favourable orders by terrorism. Your Lordships should make them for contempt. The dignity of the judicial institution is at stake.” Justice Arun Mishra said that, “No advocate can say that the CJI should not hear a case. Is this not contemptuous? There is no procedure in law to name the CJI in an FIR. Rumours and unsubstantiated allegations cannot be used against Judges. Such practices will cripple the judiciary and is a threat to its existence.”
It may be recalled here that Prashant Bhushan had even made an allegation that the CBI’s FIR “is squarely directed at the Chief Justice of India”. The CJI while addressing Bhushan said that, “You made wild allegations against me. You can afford to lose your temper, but we cannot lose our temper. That is the beauty of this system.” Later Bhushan tweeted: “Extraordinary proceedings in SC today in a case seeking SIT investigation in medical college bribery case involving the CBI! CJI presided over a hand picked bench to override yesterday’s order referring this case to top 5 Judges; This despite having a direct conflict of interest.” The CBI’s FIR alleges that a conspiracy was hatched to bribe Supreme Court Judges to influence the outcome of a medical college case. But what should not be lost sight of is that the CBI’s FIR did not name any particular Judge. If it was an open and shut case then why the Judges were not named?
All said and done, there can be no gainsaying the irrefutable fact that no person and no lawyer no matter how senior he/she may be has any untrammelled right to point fingers and level charges at CJI or any Judge of Supreme Court or any other Judge unless and until there is solid and substantial proof to substantiate those charges. Also, it must be borne in mind that the CJI is the father figure of the Supreme Court which is the highest court of our country and he/she must be kept above all controversies as the people poses their strongest faith in him/her. How can anyone in what capacity accuse CJI of any wrong act without producing any strong and convincing proof to indict him/her? How can anyone in what capacity direct CJI to hear or not to hear any particular case? It must be left to the CJI to decide whether or not to hear a particular case! It is the bounden duty of the CJI to always ensure that the supreme interests of the sacred institution will always be first and foremost and nothing will be allowed to be done at any point of time that would dilute or harm its majesty and unrivalled reputation in any manner whatsoever!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.