SC’s Answer To Critics

Source: The Hitavada      Date: 20 Nov 2017 12:14:49










The court has stated in clear terms that it cannot fall prey to such unscrupulous devices adopted by the litigants, so as to choose the benches, as that is a real threat to very existence of the judicial system itself and it would be denigrated in case the court succumbs to such pressure tactics.

A SPECIALLY constituted 3-Judge Bench of the Supreme Court by CJI Dipak Misra, consisting of Justices R. K. Agrawal, Arun Mishra and A.M. Khanwilkar, has dismissed the much discussed controversial criminal writ petition filed by Advocate Kamini Jaiswal on November 14, 2017, pointing out that it contained “contemptuous” allegations, it cast aspersions and brings disrepute to the highest Court of the land .

The apex court stopped short of taking action under the law of contempt, expressing hope that good sense will prevail over the legal fraternity and amends be made as lot of uncalled for damage has been made to the great institution in which public reposes their faith.
The court deprecated the tendecing of forum-hunting that too involving senior lawyer of “this Court”. Such conduct tantamounts to wholly unethical, unwarranted and nothing but forum hunting, as discussed by the court in the decision of the Case – Union of India & Others v. Ms CIPLA Ltd. & Another (2017) 5 SCC 262.

The court has stated in clear terms that it cannot fall prey to such unscrupulous devices adopted by the litigants, so as to choose the benches, as that is a real threat to the very existence of the system itself and it would be denigrated in case the court succumbs to such pressure tactics. Two successive identically worded petitions containing “disturbing facts “were filed, one on November 8 last by the Commission for Judicial Accountability and reforms - CJAR – and the other one by Adv. Kamini Jaiswal on the next day.

In these writ petitions filed under the Article 32 of the Constitution, a prayer was made to constitute a Special Investigation Team –SIT – headed by retired Chief Justice of India, to investigate the offences arising out of FIR of September 19, 2017 recorded at New Delhi by the CBI and those connected, therewith and take consequential action thereafter in accordance with law.

A prayer was also made to direct the CBI, to produce before this court for its perusal and, preserve and protect, all evidences/materials collected so far in the FIR to the SIT to be constituted by this court.

It was averred in these petitions that the FIR, relating to criminal conspiracy and of taking illegal gratification to influence the outcome of a pending case before this court, reveals a nexus between the middlemen, Hawala dealers and senior public functionaries, including persons in the judicial field.

The FIR was registered with respect to the case of Prasad Education Trust at Lucknow. The medical college Trust was debarred by the Government from admitting students for the years 2017-18 and 2018-19. The FIR lodged by the CBI names a retired Judge of the High Court as an accused, who had allegedly been negotiating through a middleman to get a favourable order in the petition pending before this court.
The said petition was heard by a Bench headed by the CJI. Thus, taking this as a pretext, in this petition, it was averred that the FIR casts a cloud on the judiciary at the highest level. Thus, the prayer was made that, investigation in relation to the aforesaid FIR be handed over to an SIT headed by a retired Chief Justice of India and not left to the agency controlled by the Government and that in order to restore the confidence of the public in the judiciary, the agency controlled by the Government should not be allowed to undertake the said investigation.

It was further pleaded in the petition that since the matter was heard by a Bench presided over by the CJI, propriety demands that the CJI ought not to deal with this petition either on the judicial side, or even on the administrative side.

Therefore, this petition can neither be heard by a Bench presided over by the CJI, nor it can be assigned to any other Bench by the CJI in his administrative capacity.

Further, it was pointed out that the petitioner has not made any representation to the respondent; because of the extreme urgency in the matter, this petition was filed. The Supreme Court has left it to the Medical Council of India –MCI- to take a decision in the matter not only for continuity of provisional letter of permission for academic session 2016-17 and renewal purposes only for 2018-19. No relief was granted for the current academic session 2017-18.

On September 19, 2017, an FIR was registered against 7 persons including I.M. Quddusi, a retired Judge of the Odisha High Court and six private persons. The FIR was recorded on September 19, 2017, while the Court had already disposed of the matter on September 18, 2017.
It was stated in the petition that the case disclosed offence punishable under Section 8 of the Prevention of Corruption Act, 1988 and Section 120B of the IPC against these named persons as well as against the unknown public servants and private persons.

It was also pointed out in the petition that since the matter involves the persons placed at the high echelons of power including justice delivery system and in subsequent raids made by the CBI it has recovered close to Rs. two crores in cash, the agency has seized Rs. one crore which the Hawala operator had handed over to an aide of the retired Judge, I.M.Quddusi.

The Constitution Bench held that the CJI is the master of the roster, as per the decision of the Court in the case – State of Rajasthan v. Prakash Chand & Others (1998) 1 SCC 1 .What has been laid in this judgement squarely governs the power of the CJI. He has the prerogative to constitute the benches of the court and allocate cases to the benches so constituted.

The order passed by the division of this court on November 9, 2017 has been rendered ineffective and the CJI has constituted this 3-Judge bench to hear the matter on November 13, 2017. Thus, it has been heard before this bench was constituted by the CJI.
Attorney General of India K.K. Venugopal sought dismissal of the petition terming it unnecessary. On behalf of the Government of India, it was stated that it was clearly a case of forum hunting.

The court has laid down that when imputations were made against the Chief Justice, it is his prerogative to constitute the benches and assign judicial business, and it would not hinge on the whim of the litigant. This responsibility flows from his office.

According to the court, entire judicial system has been unnecessarily brought into disrepute for no good cause whatsoever. These petitions as filed are a misconceived venture in as much as the petition wrongly presupposes that investigation involves higher judiciary.

There cannot be any FIR even against a Civil Judge/Munsif without permission of the Chief Justice of the concerned court; and rightly, FIR has not been registered against any sitting judge. It is far-fetched and too tenuous to even assume or allege that the matter was pending in the Supreme Court for which any bribe was to be delivered to anyone.

There is no conflict of interest in such a matter. The submission that the CJI should not hear the matter or should not assign it on the administrative side is highly improper. The court held that prayer that Justice Khanwilkar may recuse himself from hearing the matter is another attempt of forum hunting, which cannot be permitted. Rather this kind of prayer has been held to be contemptuous.