Corruption Allegations and Courtroom Drama: What Happened in the Chief Justice’s Court Yesterday?

''The institution is being brought into disrepute,'' an advocate said, addressing the bench. ''By whom?'' demanded Dipak Misra, the chief justice of India. Pankaj Nangia/India Today Group/Getty Images
11 November, 2017

“The subject of judicial corruption is taboo, and like the proverbial Chinese monkeys, one shall not see, hear or speak of this evil,” KK Venugopal, the attorney general of India, told an India Today reporter in 1990. “During the early ’80s, rumours of corruption, nepotism and favouritism were like distant thunder. Now they have got louder.” In the subsequent decades, the legal fraternity largely lived by Venugopal’s words; but the thunders clapped closer and closer to the judicial edifice. On the afternoon of 10 November, I saw a storm break loose in the court of the chief justice of India.

A five-judge bench, led by Dipak Misra, the CJI, was hearing a petition filed by the Campaign for Judicial Accountability and Reforms, an organisation working on public-interest issues of judicial reform. CJAR’s petition asked for the constitution of a Special Investigative Team, headed by a former CJI, to investigate a first information report registered in September by the Central Bureau of Investigation, regarding a corruption scandal emerging out of a medical college in Lucknow.

The corruption allegations pertained to the highest offices of the Supreme Court. The petition noted that the health ministry, on the advice of the Medical Council of India, had declined necessary permissions for the medical college to begin functioning on two different occasions—and twice, different benches of the Supreme Court had directed the MCI to reconsider the college’s application. The FIR alleged that the managers of the Prasad Education Trust, which was setting up the medical college, were in conversations with a retired high court judge and several other individuals, who were allegedly acting as middlemen on behalf of members of the higher judiciary adjudicating the case. Both benches of the Supreme Court included the chief justice Dipak Misra.

On 8 November, Jasti Chelameswar, the senior-most judge in the Supreme Court after Misra, admitted the CJAR petition and listed it be to be heard in two-days’ time. Later that same day, Prashant Bhushan, the counsel for the petitioners, received a call from the Supreme Court registry, informing him that the CJI had moved the matter and placed it before a different bench, of which Chelameswar was not a part—it comprised AK Sikri and Ashok Bhushan.

The next day, the Supreme Court advocate Kamini Jaiswal filed a new petition in relation to the MCI case; the senior advocate Dushyant Dave mentioned the matter before Chelameswar the same day. A bench comprising Chelameswar and Abdul Nazeer heard Jaiswal’s petition later that day, and noted the reasons for its urgency: “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.” The bench issued notice to the central government and the CBI—the respondents in the CJAR’s petition—and stated, “The FIR contained certain allegations which are disturbing. The allegations pertain to the functioning of this Court.”

Jaiswal’s petition alleges that “an attempt was being made to unduly influence” the outcome of the writ petition concerning the MCI and Prasad Education Trust, which is pending before the apex court. It also notes that “the FIR is naming a former judge of a high court as an accused, who has apparently been negotiating through a middle man to get a favourable outcome in a petition pending before this Honourable Court.” The petition being referred to in the FIR, Jaiswal’s submission added, was being heard by a bench “headed by the present Chief Justice of India.” “Having regard to the totality of the circumstances,” the bench comprising Chelameswar and Nazeer noted in its order, “we deem it appropriate that this matter be heard by the Constitution Bench of the first five Judges in the order of seniority.” The matter was finally listed for 13 November.

On 10 November, the two-judge bench of Sikri and Bhushan directed that the CJAR’s petition, too, be heard by a constitution bench. That afternoon, in a seemingly unprecedented move, the matter was listed for hearing before a seven-judge bench, constituted and led by CJI Misra.

Prashant Bhushan had submitted before Sikri and Bhushan that the CJI should not be part of any bench hearing this petition. “The FIR is very clear that there are allegations against the Bench of CJI,” he had said. Now, standing before Misra, he asked for the CJI’s recusal.

“The FIR is lodged directly against you,” Bhushan said. Murmurs rose in the wood-panelled courtroom.

“Nonsense,” Misra replied. “There is not a word in the FIR about me. You are now liable for contempt.”

“So issue a contempt notice,” Bhushan said.

“You are not worth it,” the CJI replied.

Meanwhile, the Supreme Court Bar Association had impleaded itself as a party in the case, on an oral request before the Sikri and Bhushan bench, before the constitution bench was set up. In court, the SCBA’s secretary Gaurav Bhatia looked visibly hurt by Bhushan’s plea for recusal. This, he told the court, along with the two separate mentions of the case—referring to the CJAR and Jaiswal petitions—was “an attempt to get favourable orders by terrorism.”

Bhatia continued: quoting from a 1998 Supreme Court judgement, he said that the CJI is the administrative head of the court, and that puisne judges could not allot matters before themselves. Referring to Chelameswar’s notice, the CJI said, “I have seen yesterday’s judgement. This court can’t function like this.” PS Narsimha, the additional solicitor general, agreed. “Replacement of the executive power of the CJI by judicial power is not permissible,” he said.

Prashant Bhushan complained to the court at least twice that the petition of Kamini Jaiswal was not before the constitutional bench. “That case is not before your lordships, why are we talking about that,” he asked. However, no one appeared to be listening to him—Misra did not even turn in his direction. Every time Bhushan began speaking, there was an uneasiness in the room—an apprehension almost, about what he might say.

For nearly half an hour, the judges heard arguments from several lawyers in the courtroom—many of whom were merely present in the courtroom and not representing any party in the case. Every time a new voice intoned, someone in the visitor’s box would look up from their notebook, and ask, “Who is that?” One speaker mentioned that in the eyes of the people, the Supreme Court is now worse than the political establishment. “The institution is being brought into disrepute,” an advocate said, addressing the bench. “By whom?” demanded the CJI. Silence for seconds.

Bhushan rose, and said, “Now that everyone, including those who are not a party in this matter have been heard, can I make my submissions?” Bhushan asked, “Are my lords going to pass an order without listening to the arguments of the petitioners?”

More discussions about Chelameswar’s order in the Jaiswal petition followed. A senior advocate pointed out that people are laughing at the judiciary. When one of the judges asked who had mentioned Jaiswal’s petition before Chelameswar, many responded in unison: “Dushyant Dave and Prashant Bhushan.” “The institution can’t function like this,” the CJI repeated.

It is worth noting that the allegations surrounding the functioning of the institution, and in particular, of benches that included Misra, are what led to the different petitions mentioned by Dave and Bhushan in the court. To understand this concern, it is essential to understand its background. In 2015, the Prasad Education Trust, which runs several education institutes in Jaunpur and Lucknow, applied to the central government for permission to set up a new medical college. The government forwarded this application to the Medical Council of India for consideration, which recommended that it be denied.  Based on the MCI's response, in June 2016, the government declined the trust's application.

Two months later, the central government issued a letter of permission to the trust for setting up the college, on the basis of the recommendation of the Oversight Committee—constituted by the Supreme Court in May 2016, the body supervises the functioning of the Medical Council of India. However, late last year, as per the conditions of the letter of permission, the MCI conducted an inspection of the college, and found it deficient on several fronts. The report described a “deserted” campus and locked doors at the hospital. On 31 May this year, on the basis of the MCI’s report, the union health ministry debarred the college from accepting any students for the next two academic years, and authorised the MCI to encash the college’s bank guarantee, worth Rs 2 crore.

The trust then filed a petition in the Supreme Court challenging the health ministry’s decision. A bench comprising three judges—Dipak Misra, Amitava Roy and AM Khanwilkar—directed the ministry to conduct another inspection. The matter required, the order read, “a fresh consideration to obviate the possibility of any injustice in the process.” Two days later, the health ministry heard the college afresh, but on 10 August, it reiterated its earlier decision.

According to the FIR registered by the CBI, BP Yadav, one of the managers of the trust, then approached IM Quddusi, a retired judge of the Odisha High Court, and “entered into criminal conspiracy for getting the matter settled.” On the advice of Quddusi, the FIR alleged, Yadav withdrew his petition from the Supreme Court, and approached the Allahabad High Court. On 25 August, the high court granted a stay on the encashment of the bank guarantee and said that the college will not be delisted from conducting counselling for admitting students.

Four days later, in response to a Special Leave Petition filed by the MCI against the high court’s order, a three-judge bench at the Supreme Court, led by Misra, upheld the stay on bank guarantee and disposed of the writ petition in Allahabad. The trust filed a fresh writ petition in the Supreme Court. On 18 September, a three-judge bench, again led by Misra, upheld the stay once more. For the second time, the bench directed the MCI to conduct a fresh inspection to for the 2018–19 academic session. The next day, the CBI registered its FIR, in which six persons were named, including the retired high court judge, and two managers of the trust. The CBI arrested five of the accused persons on 21 September.

In the proceedings before the chief justice’s court, there was little discussion about the allegations of corruption or the background of the cases. Instead, the conversation was centred on the CJI’s position as the administrative head of the court—and everyone was making submissions. Misra solicited the suggestion of a senior advocate standing at the back. “This is contempt,” the advocate said, referring to Bhushan’s conduct.

“No judge can refer a matter to a bench,” Misra said, referring to Chelameswar specifying the bench that would hear the petition. “That order is not before your lordship today,” Bhushan said. A lawyer standing with Bhushan lost his temper. “Why are we talking about that case?” he shouted. “Do not raise your voice,” Amitava Roy, one of the judges on the bench, said. “You are a party that is bringing disrepute to the CJI in front of his face.”

At around this time, Bhushan got up again. “Are the lordships going to pass an order without listening to my submissions?” he said. Responses came, but Bhushan cut them off. “If you are going to pass an order without listening to the submissions”—his voice rose, gripped by anger—“then my lords can pass whatever order that pleases them … whatever order pleases you.” The courtroom erupted into chaos, and all of a sudden, Bhushan walked out of the courtroom.

Reporters ran out, and came back, while the hearing continued. Gopal Singh, an advocate, suggested that a gag order be issued immediately. “The press should not be able to print this,” he said. A couple of TV reporters ran out again. They came back as Misra made a stand for the freedom of the press.

Soon after, the CJI pronounced the order. It came in three spurts. First, Misra said, the CJI is the master of the roster. After a pause, the second part: any order that contravenes the administrative power of the CJI, like the one passed by Chelameswar the previous day, was null and void. Thirdly, Misra said after a consultation with Arun Mishra on the bench and almost as an afterthought, both the CJAR and the Jaiswal petition would be heard in two weeks, by a new bench—constituted by the CJI. During the proceedings, someone asked the bench whether they would not hear the petitioner’s submissions. “Oh, but he walked out,” Misra replied, smiling.

Correction: A previous version of this article incorrectly stated that a seven-judge bench of the Supreme Court was hearing the petition by the Campaign for Judicial Accountability and Reforms on 10 November. The chief justice had constituted a seven-judge bench, but two of the judgesAK Sikri and Ashok Bhushanrecused themselves before the hearing. The Caravanregrets the error.