New Delhi: Given the extraordinary nature of the CBI transcripts related to the medical college bribery scam, eminent advocate and anti-corruption activist Prashant Bhushan, in a complaint to five senior-most puisne Supreme Court judges, has demanded an investigation against Chief Justice of India Dipak Misra, and senior judges of the Allahabad high court and Supreme Court.

The transcripts of telephone conversations that were published first by The Wire indicate that some middlemen could have lobbied with senior judicial functionaries of the Supreme Court and the Allahabad high court to secure favourable judgements for the Prasad Education Trust-run Glocal Medical College and Super Speciality Hospital and Research Centre, which was banned by the Union government from admitting students for two academic years (2017-18 and 2018-19). The conversations also reveal that the middlemen, speaking on behalf of unidentified judges, demanded money amounting to crores from the medical college’s manager.

Bhushan put Misra in the dock because he headed all the benches that gave favourable judgments to the college in hearings that lasted from August to September, 2017. In November, the court was witness to stormy scenes when a bench formed by the CJI dismissed a petition by the Campaign for Judicial Accountability and Reforms (CJAR), which was represented by Bhushan. The petition had demanded that the chief justice should recuse himself from all cases related to the medical college after the CBI’s FIR on September 19 had alleged that there was a conspiracy to bribe senior judicial functionaries in the Allahabad high court and the Supreme Court. However, in a public spat between Bhushan and the bench, the plea was dismissed.

While dismissing the plea, the five judge bench also nullified Justice J. Chelameswar and S. Abdul Nazeer’s decision the previous day to set up a constitutional bench of the court’s five senior-most judges to hear senior advocate Kamini Jaiswal’s petition about judicial corruption that involved the medical college bribery scandal. Although the power to allocate work to judges rests only with the CJI, Justices Chelameswar and Nazeer had made an exception to constitute a bench on their own, given the unprecedented nature of the situation. However, their order was shot down the very next day by the bench formed by Misra.

Apropos of these developments, CJAR, represented by Bhushan, submitted its complaint to the five seniormost judges after the CJI – Justices J. Chelameswar, Ranjan Gogoi, Madan B Lokur, Kurian Joseph and A.K. Sikri. The first four of them in a historic press conference last Friday had alleged that the CJI was allocating work to judges in benches “of their preference without any rational basis”, thereby defying convention and by-passing senior judges in the process.

Charges against the CJI in the complaint

CJAR’s first charge relates to the medical college case itself. The complaint says that “the facts and circumstances” and “evidence available with the CBI” in the medical college case “create reasonable doubt about the role of the CJI”. Bhushan further said that the CJI reportedly denied permission to the CBI to file an FIR against Allahabad high court’s Justice Narayan Shukla, against whom the investigative agency had evidence of taking a bribe from the medical college.

“Since action against a sitting judge can only be allowed with the permission of the CJI according to the rules, not permitting the CBI to act against Justice Shukla prevented the agency from catching him red-handed. According to information available, the CBI approached the CJI on 6th September and CBI preliminary enquiry report said that after the case was transferred to the Supreme Court, Shukla was supposed to return a part of the ‘illegal gratification’ he received from the college on September 7. This means had the CJI given a go-ahead to the CBI, he could have been caught red-handed,” he said.

Secondly, Bhushan said that the CJI’s action against CJAR’s petition in November amounted to apparent misuse of power as he was likely to fall within the scope of its investigation. “…Misra dealt on the administrative side (formed the bench to dismiss Justices Chelameswar and Nazeer’s decision) and judicial side (retaining the bench hearing the Prasad Education Trust’s case) with a writ petition (CJAR’s petition demanding that the CJI should recuse himself from the medical college case) which sought an investigation into a matter in which he too was likely to fall within the scope of investigation since he had presided over every bench which had dealt with this case and passed orders….”

The third charge he made was that the CJI “appears to have antedated an administrative order…which amounts to a serious act of forgery/fabrication.” He alleged that the order which was dated November 6 was presented as prepared on November 9. The order, he said, was hastily brought by the registrar to the court which was hearing Jaiswal’s petition, which, too, demanded that CJI should be removed from the medical college case. However, the supposedly “antedated” order, which was required to be annexed with Justices Chelameswar and Nazeer’s decision to leave the CJI out of the case, said that “…whenever such directions are issued, the matter(S) be listed before a bench presided over by Hon’ble CJI…,” thereby opening up the decision to further review

As is clear now, the decision the judges gave that day was nullified the next day by a bench constituted by the CJI.

The fourth charge that CJAR’s complaint made relates to an old case in which Justice Misra had allegedly acquired land, when he was an advocate in Odisha, by presenting a false affidavit. The complaint said that “despite the orders of the additional district magistrate cancelling the allotment in 1985”, Misra surrendered the said plot only in 2012 after he joined the Supreme Court.

Bhushan said that since the recent impeachment motion of Justice Soumitra Sen of Calcutta high court was initiated on the basis of his action during his time as an advocate, the land case against Misra too can be seen as an act of alleged misconduct.

He further said that these charges, which are in the public domain, necessitate an enquiry. “Is it a case when it can be said that there is no need of an investigation against judges? I am just saying that the CBI has a preliminary enquiry report that shows a possibility of judicial corruption,” he said.

He added that while there is “no evidence is to show the involvement of the CJI in any corruption there is enough evidence for a probe against the CJI.”

Bhushan said that in the absence of constitutional provisions for an investigation against the CJI ( judges can be impeached if a minimum number of Rajya Sabha members initiate the process), an in-house procedure of the Supreme Court can be invoked by the puisne judges to initiate a probe in the matter. “We are neither pronouncing any judgment nor demanding impeachment procedures against the CJI. Our complaint only requests the judges to initiate an investigation under the in-house procedure and we have referred to multiple precedents to support our request,” he said.

“The in-house procedure provides that complaints against the Supreme Court judges are to be sent to the CJI who, if he finds that the complaint merits enquiry or investigation, would constitute a committee of three judges of the Supreme Court to examine the complaint and give a report. Though this procedure is silent with respect to complaints against the CJI himself, it is obvious that complaints against the Chief Justice cannot be examined by the Chief Justice himself and therefore must be examined by the next judge in seniority or by a collegium of senior judges. The principle has been held by this hon’ble court in several cases,“ the complaint said to justify why the CJAR had not addressed the complaint to the CJI but to other senior judges.

Bhushan said that a situation like this can lead to potential interference of the government in the judiciary and can compromise the independence of the institution. “I do not have any evidence of the government blackmailing the CJI but this situation is fraught with that danger. The system has to prevent such a situation by duly implementing checks and balances. The first rule for a judge is that he/she cannot do anything where his/her impartiality can be questioned.”

“This case certainly raises so many questions. I have been of the view that once the four senior judges organised a press conference to raise concerns about the happenings in the Supreme Court, he should have resigned. But right now we are demanding at least a probe,” he said.

Anjali Bhardwaj, executive member of CJAR, joined Bhushan to say, “This is not just a complaint against the CJI. We have tried to highlight problems in the higher judiciary which are systemic in nature. We are demanding that senior judges should follow the best international practices while looking at the CJI’s role. Allocation of benches cannot be done in an arbitrary manner. It should be done in a rational and transparent way.”

“In the high courts, there is a roster system which is published but the Supreme Court does not have that system. The Memorandum of Procedure, too, must be published to ensure greater transparency in the appointment of judges. This will go a long way in ensuring more transparent judicial functioning.