Number one vs. Number two: High drama in Supreme Court over judges' bribery case

In yet another eventful day at India's Supreme Court as the apex court grapples with allegations of impropriety, a five-judge panel headed by Chief Justice of India Dipak Mishra annulled an order passed by Justice J Chelameswar in the medical college scam case.

This decision was made by a bench formed afresh to review Thursday’s order by Justice Chelameswar.

This has led to speculation on the differences between the Chief Justice and the second senior-most judge. More importantly, the fate of the petition demanding independent investigations into allegations of judicial corruption also hangs in the balance.

High-voltage drama

Two other judges, Justice AK Sikri and Justice Ashok Bhushan, recused themselves from the proceedings. The five-judge bench which upturned Chief Justice Chelmeswar’s order comprised of CJI Dipak Misra, Justices RK Agrawal, Arun Mishra, Amitava Roy and AM Khanwilkar.

The bench ruled that the CJI is the master of allocation of cases before a particular bench. According to it, the No. 2 judge cannot order the formation of a constitution bench. It also reportedly said that the two similar petitions, one filed by Campaign for Judicial Accountability and Reforms (CJAR) and other by Kamini Jaiswal, will be listed for hearing to decide other pending issues. The lawyers also alleged forum shopping by the petitioners, reports say.

The new order came amidst demands from the petitioners that the CJI keep away from the proceedings of this particular case.

“Extraordinary proceedings in SC today in the case seeking SIT Investigation in medical college bribery case involving the CJI! 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,” Prashant Bhushan tweeted, after the CJI upturned Justice Chelameswar’s order.

Risking charges of contempt of court, Bhushan walked out of the court complaining that he had not been allowed to speak. The court, according to reports, was full of lawyers who demanded contempt proceedings against Bhushan, senior advocate Dushyant Dave, and Kamini Jaiswal, the lawyers spearheading the demand for an independent investigation.

Conflict of interest?

“The FIR lodged by the CBI is naming a former judge of a High Court as an accused, who has apparently been negotiating through a middle man to get the favourable order in a petition pending in this Hon’ble Court. The said petition was being heard by a bench headed by the present Chief Justice of India. It therefore casts an aspersion on the judiciary at the highest level,” the petition by CJAR says.

“Hence, it becomes essential that this case is investigated under the supervision of a Special Investigation Team headed by a retired Chief Justice of this Hon’ble Court and that the investigation is not left to an agency fully controlled by the government i.e. the CBI which has lodged the FIR and currently undertaking the investigation,” the PIL demands.

Justice Chelameswar, who heard one of the petitions yesterday and ordered that it be heard by a five-judge constitution bench comprising the first five judges, did not specify if the Chief Justice would be part of it.

Strange proceedings

The happenings in the court on Thursday, too, were intriguing. After senior advocate Dushyant Dave mentioned the case for an urgent hearing in court number 2, Justice Chelameswar, calling it a serious issue, referred it for hearing at 12:45 PM.

In the interim, the CJI, who was heading the Constitution Bench hearing the Delhi Government case, rose up midway at noon.

Soon after, as the matter came up from hearing before the bench in Court number two, strangely, a xerox copy from the officer of the registry containing proceedings issued by the CJI was placed before the bench.

“But, at the same time, we are also duty bound to place the developments that when the hearing of the matter was in progress, the Officer of the Registry placed a xerox copy of the proceedings purportedly issued by Hon'ble the Chief Justice of India, a copy of which is annexed to this Order,” Justice Chelameswar writes in the order.

The copy of the note submitted by the registrar on 9 November, is curiously dated and signed 6 November. The note by the registrar on the directions of the CJI, says that on 6 November, the CJI had directed that matters brought up by oral mentioning either be presented to the CJI at 3 pm or any such time as is indicated by him or to a bench directed by him.

It begs the question as to why the note took two days to get to Justice Chelameswar’s court?

What happened in the court on Wednesday is also interesting.

The petition by Campaign for Judicial Accountability and Reforms (CJAR) seeking an independent court monitored investigation in this case, by a SIT headed by a former Chief Justice of the Supreme Court was mentioned for urgent listing before court number 2. Justice Chelameswar’s bench ordered it to be listed before him on 10 November. However, CJAR says that “during lunch the petitioners counsel was informed by the Registry that in the light of an order by the Chief Justice this case is assigned to another bench and therefore would be coming up on Friday not before Court 2 but before the other bench.”

Meanwhile, the petitions refer to a FIR registered by the CBI on 19 September where it alleged a criminal conspiracy by several people including one retired Judge of the Orissa High Court, Justice IM Quddusi and officers of the Prasad Education Trust, a trust running a medical college, to bribe and influence judges of the High Court and Supreme Court and secure favourable orders for the recognition of a medical college run by the trust, whose recognition had been denied by the Medical Council of India .

The FIR talks of a middle man named Biswanath Agarwala from Odisha, who was engaged with the purpose of influencing the Judges.

Post FIR raids more than Rs 2 crore was recovered and CBI made arrests including that of Justice Qudussi.

However, the CJAR petition says that “these persons secured bail and no effort was made by the CBI to challenge their bail and nothing is known about the progress of the investigation.”

Both the petitioners also doubt the intentions of the CBI. Dave, arguing in the court asked if CBI had filed a false case to tarnish the image of the judiciary. CJAR, in its petition says: “As it appears from the FIR lodged by the CBI, an attempt was being made to unduly influence the outcome of the petition which was pending before this Hon’ble Court.”

CJAR’s petition claims that the government could use the investigations to undermine the independence of the judiciary.