November 12, 2017
On 19th September 2017, the CBI registered an FIR to the effect that a criminal conspiracy was hatched by several people including one retired Judge of the Orissa High Court and officers of an Education Trust, to bribe and influence judges of the High Court and Supreme Court and secure favourable orders in the cases of the education trust pertaining to a recognition of a medical college run by them, whose recognition had been denied by the MCI citing many deficiencies. Immediately after registration of the FIR, raids were conducted and reports suggested that about 2 crores in cash were recovered from the conspirators. Some of them, including the retired High Court Justice came to be arrested. However after these persons secured bail, no further effort was made by the CBI to challenge their bail and nothing was known about the progress of the investigation.
In these circumstances that Campaign for Judicial Accountability and Reforms (CJAR), filed a writ petition, seeking an impartial court monitored investigation in this case of alleged bribery of the Judiciary. The petitioners held that as investigation involves direct allegations of corruption at the highest levels of the judiciary, any investigation by an agency like the CBI controlled by the government, could compromise the independence of the judiciary. In fact the present CJI was presiding over the bench which was handling the medical educational institution cases in the Supreme Court when the alleged bribery took place.
The petition was mentioned on 9th November before the court where such mentionings are taken up for urgent listing and also because it would not be appropriate for the Chief Justice to deal with this matter in his judicial and administrative capacity, although in ordinary routine matters the listing of cases is done by the CJI. On mentioning, the J. Chelameswar’s bench ordered it to be listed before him on 10th November. However during lunch the petitioners counsel Advocate Prashant Bhushan was informed by the Registry that by an order of the CJI the petition case was assigned to another bench.
Meanwhile another petition on this matter represented by Advocate Ms. Kamini Jaiswal was mentioned and ordered to be taken up. The bench of Justice Chelameswar and Justice Nazeer passed an order on 9th November directing that in view of the importance and sensitivity of the matter, this matter to be listed for hearing before a bench of the 5 senior most judges of the Supreme Court and the material collected by the CBI be sealed and placed before a Constitution Bench on 13th November when the matter comes up for hearing. Once again an administrative note issued by the CJI was handed over to Justice Chelameswar’s bench, across the bar, by a registrar in the course of hearing.
*Clear violation of nemo judex causa sua*
In both the matters, the CJI acted in a manner that violated the basic principle of any decision-making authority- nemo judex causa sua (no one shall be a judge in his or her own case). If the CJI had simply allowed the order passed by his collegue Justice to continue the minor procedural irregularity of having directly referred the matter to a Constitution Bench could have been condoned. However, by acting in such a manner, he has seems to have undermined the credibility of the Supreme Court and the office of the CJI. It has increased the doubts about his culpability in the offence in the eyes of a neutral and impartial observer.
Further to make matters worse, on 10th November at 2:45pm, Advocate Prashant Bhushan received a call from the registry that a seven judge bench is being constituted to sit 3pm and that he should come to court. A list setting out the constitution of the 7 judges bench was posted on the notice board but when Mr. Prashant Bhushan entered the court, to his surprise there was a bench of 5 hand picked junior judges, presided by the Chief Justice, as opposed to the order dated 9th November 2017 by the Division Bench of Justice Chelameswar and Justice Nazeer. The hearing began to a full court where the Additional Solicitor General, office bearers of the Supreme Court Bar Association and other lawyers who were not parties were allowed to say things against the order of the division Bench and as the hearing progressed, the atmosphere became chaotic with sloganeering. The Counsels for the petitioners Prashant Bhushan and Dushyant Dave were neither called upon nor permitted to put forward their case and there was a constant cry for hauling them, along with the others who have taken up this issue, for contempt. Ultimately Prashant Bhushan was forced to leave the court with the marshalls escorting him. The Constitution bench then proceeded to annul the order of the division bench.
The Indian Association of People’s Lawyers (IAPL) expresses its utmost displeasure at the way at which the CJI has addressed the issue of allegations of bribery of the judiciary. The events in the hearing of the abovementioned proceedings and especially on 10th November show a clear violation of basic principle of jurisprudence by the Higher Judiciary especially in dealing with sensitive matters where the credibility of the Higher Judiciary is involved. On the other hand, IAPL also condemns the way in which the lawyers raising the issue of corruption of the judiciary were booed, ridiculed, humiliated and threatened with contempt. This is similar to the silencing of whistleblowers that the judiciary in other matters is so keen to act on. IAPL extends its solidarity with such lawyers and urges all to be ever vigilant regarding cases of alleged corruption of the Judiciary and strive for the independence of the judiciary especially from the influence of money and political power.
_Adv. Surendra Gadling,_
_General Secretary, IAPL_
(IAPL – Indian Association of People’s Lawyers Facebook)