Constitution Bench of SC overturns two-judge bench order in matter of corruption of Apex Court judges

A series of events that played out last week in the Supreme Court resulted in the crescendo hearing on Friday whereby a petition was heard before a five-judge bench led by the Chief Justice of India, Dipak Misra which dealt with corruption surrounding an attempt to influence the outcome of a case with reference to medical colleges compliance requirements by Medical Council of India(MCI).

It began on Wednesday, (November 8th) when Advocate-on-Record Prashant Bhushan mentioned a matter on behalf of petitioners Campaign for Judicial Accountability and Reforms (CJAR) in front of a Bench of Justice J. Chelameswar seeking listing of the matter. It was mentioned in before Justice Chelameswar since CJI Misra was heading a Constitution Bench in the Government of NCT of Delhi v. Union of India. The matter was thereafter, listed for Friday (November 10th). (Find the order here.)

As reported in The Caravan, later that same day, Prashant Bhushan 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.

Thereafter, on Thursday (November 9th) Senior Advocate Dushyant Dave mentioned a new petition filed by Kamini Jaiswal on the same issue with regard to medical colleges, before Justice J. Chelameswar. The petition contained allegations with regard to an FIR lodged by Central Bureau of Investigation (CBI) in matters relating to criminal conspiracy and taking gratification by corrupt means to influence the outcome of a case in Court, indicating a nexus between hawala dealers and public functionaries including members of the judiciary. Justice Chelameswar agreed to hear the petition later in the afternoon. Both the petitions in the case had identical grounds and prayers.

The hearing of the Kamini Jaiswal petition began at 12.45 on Thursday before Justice Chelameswar, at which point he received a note from the registry, which he annexed with the order. Justice Chelameswar and Justice S Abdul Nazeer passed an order referring the matter to a Constitutional bench of the five senior most judges of the Supreme Court. An interim order was also made directing the CBI to produce case diary and all the material collected during investigation before the Court. The hearing was to come up before the bench on Monday (November 13th). (Find the order here.)

The FIR filed by CBI pertains to a medical college set up by Prasad Educational Trust in Lucknow, which was receiving unfavourable reports with respect to compliance with requirements for setting up a Medical College by Medical Council of India(MCI). The petition noted that the Medical Council of India had declined necessary permissions for the medical college to function on two separate occasions. Subsequently, the college was debarred from admitting students for the academic years 2017-18 and 2018-19, and petitions were filed in the Supreme Court and Allahabad High Court. It was indicated that the FIR filed by CBI suggests at attempt to influence the outcome of the petition was made. Twice two different benches of the Supreme Court directed the MCI to reconsider their decision to permit the functioning of the medical colleges. 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. 

Both the petitions sought constitution of a Special Investigation Team headed by a former Chief Justice of India to investigate into the matter. It stated that since the allegations were against the bench of the Chief Justice of India the matter should not be heard by a Bench presided by him or assigned by him in any administrative capacity.

On Friday (November 10th) the hearing for the CJAR petition came up before the bench comprising of Justice Sikri and Justice Ashok Bhushan. Justice Sikri remarked that he was upset that a second petition was filed, since it showed lack of confidence in his bench. Advocate Prashant Bhushan brought to the notice order passed in the Kamini Jaiswal issue and asked for the petition to be listed before Justice Chelameswar since the other petition was listed before him. He asked for the matter to be tagged with the Kamini Jaiswal petition. Justice Sikri, however, referred the matter to the CJI Dipak Misra for passing appropriate orders. Supreme Court Bar Association on their application was impleaded as parties in the matter.

Subsequently, in an unprecedented move, a five-judge bench was constituted to sit at 3p.m. It was mentioned, in an article by LiveLaw(link) that the office bearers of the Supreme Court Bar Association and Advocate Prashant Bhushan who were parties to the petition were informed as late as 2.40p.m. of the sitting of this bench. There was also confusion regarding the number of judges on the bench. Initially, a seven-judge bench was constituted headed by CJI Misra and comprising of Justices R.K. Agrawal, Arun Mishra, Amitava Roy, A.M. Khanwilkar, A.K. Sikri and Ashok Bhushan. However, Justices Sikri and Bhushan recused themselves from the matter, resulting in a five-judge bench hearing the matter. It was to be noted by all that neither Justice Chelameswar, nor Justice Nazeer who had passed the previous order was made part of this bench.

In a heated discussion between the bar and the bench, it was suggested by the Advocate Prashant Bhushan that since the FIR was against the bench of the CJI he must recuse himself from deciding the matter. This was not taken favourably. Advocates Prashant Bhushan and Kamini Jaiswal found themselves outnumbered by lawyers belonging to the SCBA who had flooded the courtroom, urging the bench to file contempt charges against them. Ultimately, petitioners not receiving a chance to be heard amidst the chaos that broke out, Advocate Prashant Bhushan got up and walked out of the courtroom.

In the order passed by the five-judge bench, it was asserted that the CJI is master of the roster, and no judge can take up a matter on his own, unless allocated by the CJI. The order directed the matter to be heard by an appropriate Bench decided by the CJI, and the matter was listed for after 2 weeks. (Find the order here.)

The Supreme Court following this controversy has now issued a circular regarding the oral mentioning of cases which are not yet assigned before any other Bench. As per the circular, mentioning of such matters will be allowed only before the Chief Justice of India. (Read the circular here.)

As mentioned by Dushyant Dave in his article, “The scars inflicted on the foundation of this Institution must be healed as quickly as possible. Otherwise the credibility of this Institution, its acceptability and the love and respect it commands amongst the citizens will be seriously jeopardized.”

On Tuesday (November 14th) a three-judge bench comprising of Justice R.K. Agrawal, A.K. Mishra and A.M.Khanwilkar pronounced its judgement in the petition filed by Kamini Jaiswal regarding the prayer for investigation in the matter by a SIT. The court indicated that two identical petitions with identical content had been filed by CJAR and Kamini Jaiswal before two separate benches. It condemned the petitioners for forum hunting, i.e. trying to get their petition heard by a bench that is likely to produce a favourable order.

The submission that Article 144 of the Constitution of India binds the court and renders it impermissible for any other bench of the Supreme Court even one presided by the CJI to overrule an order passed by another bench of the Supreme Court was dismissed. It was held that there was no question of the applicability of Article 144 or 142 since the precise question was dealt with by the Constitution Bench in the case of CJAR and is, therefore, binding on all concerned.

It was re-asserted that the Chief Justice of India is the master of the roster and any order passed contrary to the order of the Constitution Bench is held to be ineffective in law and not binding on the CJI. (Read the full text of the judgement here.)