Strong Message to Forum-shoppers and Aberrant Judges

An eminent jurist Benjamin Cardozo has said that ‘the judge is not a knight-errant, roaming at will in pursuit of his own ideal of beauty and goodness.’ Another jurist Felix Frankfurter has said that ‘for the highest exercise of judicial duty is to subordinate once personal pulls and private views to the law of which all are guardians-those impersonal convictions make a society a civilized community and not the victims of personal rule.’

These two quotations are apt in the present circumstances when the judicial discipline was thrown overboard by the Lucknow bench of the Allahabad High Court resulting into the huge erosion in the image of the judiciary. Thanks to the timely and bold intervention of the Supreme Court, the rot that was spreading very fast in the name forum shopping and extracting favourable justice was stemmed otherwise, brokers and blackmailers would have brought further disrepute to the Institution. The controversy arose in the Supreme Court of India when a group of lawyers created an unsavoury effort for impeaching the authority of two judges namely; the Chief Justice of India and Justice A.N khanwilkar. The root of the controversy lies in the medical admission scam or simply MCI scam. In September this year, the CBI arrested a retired judge of the Orissa High Court and five others for allowing a private medical college enrol students despite a ban by the Supreme Court on the same.

According to the CBI investigation, Justice IM Quddusi, a judge with the Orissa High Court between 2004 and 2010, and his alleged accomplice Bhawana Pandey helped the Prasad Education Trust that runs Lucknow-based Prasad Institute of Medical Sciences to enrol students in different courses. The Prasad Institute of Medical Sciences of Lucknow was among 46 colleges barred by the government from admitting students. These colleges were found to have sub-standard facilities and non-fulfilment of the required criteria.Justice Quddusi and Bhawana Pandey allegedly assured the Prasad Education Trust that they would ensure that their matter was settled in the Supreme Court. The CBI said that Quddusi and Pandey roped in a middleman identified as Biswanath Agrawala of Bhubaneswar.Besides, Justice Quddusi, Bhawana Pandey and Biswanath Agrawala, the CBI also arrested BP Yadav, Palash Yadav (both from Prasad Education Trust) and an alleged hawala operator Ramdev Saraswat.
Agrawala claimed to have contacts with influential people. The CBI seized Rs 1 crore during searches from Agrawala soon after he got the money from Saraswat in Delhi’s Chandni Chowk area. The CBI later recovered another Rs 90 lakh from the places owned by him.

The Supreme Court came into the picture after the Prasad Institute challenged the government’s decision to debar it from admitting students for medical courses. Some other medical colleges too had filed petitions in the Supreme Court.In August this year, a Supreme Court bench headed by CJI Dipak Misra directed the Centre to review its order to debar medical colleges it found having sub-standard facilities. On August 10, the government heard the arguments of the Prasad Institute. But, it refused to lift the restriction till 2018-19. It also asked the Medical Council of India (MCI) to encash its bank guarantee of Rs 2 crore. The FIR registered by the CBI states that BP Yadav of the Prasad Education Trust contacted Justice Quddusi and Pandey through another person identified as Sudhir Giri of Venkateshswara Medical College of Meerut. The CBI FIR says they ‘entered into a criminal conspiracy for getting the matter settled.’

The Prasad Institute challenged the government order in the SC afresh. However, a few days later, on the advice of Justice Quddusi, the petitioner withdrew the plea from the Supreme Court and moved the Allahabad High Court. The Allahabad High Court provided temporary relief to the petitioner staying the debarment order. It also stayed encashment of bank guarantee by the MCI. The medical college regulator, in turn, challenged the Allahabad High Court order in the Supreme Court. Now, the Prasad Institute also filed a writ petition in the Supreme Court. The CBI says that it is at this point of the legal battle, Quddusi and Pandey roped in Agrawala, who was engaged to influence the judges of the Supreme Court. Most of the accused of the case are out on the bail.

Meanwhile, the Campaign for Judicial Accountability and Reforms filed a petition in the Supreme Court seeking setting up of an independent probe by a SIT headed by a retired chief justice of India. The petitioner, Kamini Jaiswal, contended that such a probe is urgently needed as it involved charges of corruption in the highest judicial bodies – the High Court and the Supreme Court. The petition was first put up on 8th of November before the bench of Justice J Chelameswar, who posted the matter for hearing on 11th November but the petitioner’s counsel- Dushyant Dave and Prashant Bhushan- again mentioned the matter on 9th November once again before the bench of Justice Chelameswar, who agreed to hear the matter.Admitting the petition, Justice Chelameswar passed an order to set up a constitution bench of five senior-most judges of the Supreme Court for hearing the petition seeking a probe by a SIT. The bench also issued notices to the Centre and Medical Council of India.

The petitioner contended that CJI Dipak Misra should not be on the constitution bench as he was on the bench that dispensed with the case relating to Prasad Education Trust in the past. Justice Chelameswar, however, left the matter to be decided by the constitution bench itself.While Justice Chelameswar was about to pass the order, another draft order was delivered to him. The draft order was apparently issued by CJI Dipak Misra, who listed the same matter in another court.Justice Chelameswar interpreted the draft order differently. Citing Article 145(3), he observed that the matter relating to the SIT probe can be heard by a constitution bench without the CJI passing a specific order. As per existing practice and law, setting up a constitution bench is the administrative function of the CJI.The matter took another turn when the CJI set up a seven-judge bench to hear the order passed by Justice Chelameswar bench in the matter of SIT probe. Two of the judges, however, recused themselves from the bench. The five-judge bench annulled the order passed by Justice Chelameswar.

Later the matter was heard by the bench of the Chief Justice and it scathingly attacked the conduct of the judges of the Allahabad High Court by saying that, obviously, the Division Bench of Allahabad High Court had abandoned the concept of judicial propriety by quashing the ban order of the Central Government and the Medical Council of India. More so, when at the time of the withdrawal of the Petition, the Supreme Court had very clearly directed that ‘the High Court, while entertaining the Writ Petition shall not pass any interim order pertaining to the academic year 2017-2018’The Supreme Court said that, ‘it is as the cloudless sky that the judgement of the High Court shows unnecessary and uncalled-for hurry, unjustified haste and unreasonable sense of promptitude being oblivious of the fact that the stand of the Medical Council of India and the Central Government could not be given indecent burial when they were the parties on record. Such a procedure cannot be countenanced in law.’ The Supreme Court debarred the Institution from continuing the Course and said that although students cannot be fully compensated, yet it ordered the Institution to refund their fees besides paying Rs ten lakh to each. The Court also imposed the cost of Rs 25 lakh on the Institute.

The drama that was played out by the Commission for Judicial Accountability and Reforms(CJAR) is saddening and cover it with bad light. Firstly, it made the egregious mistake of filing two identical petitions in the Supreme Court. One in the name of its member Kamini Jaiswal and other in the name of the CJAR itself. Secondly. It pressed the immediate hearing of the case, which should not have Chief Justice Dipak Misra on the bench. It amounted to eroding the authority of the Chief Justice, who is the master of the roster and has got the sole right to constitute the Bench of the Supreme Court. Another bench consisting of Justice R. K. Agrawal, Arun Mishra and A. M. Khanwilkar heard the petition of Kaman Jaiswal and dismissed with scathing comments on the conduct of the concerned advocates. The second petition was also dismissed but this time a hefty cost of Rs 25 lakh was imposed on the CJAR for its misadventure of forum hunting and tarnishing the majesty of the judiciary.

There is no doubt, that those who are in the Judiciary particularly in the higher judiciary, which includes Bar and Bench both must conduct themselves in the manner, which could serve as the role model for others and instil the unshakable faith in the institution of justice.

Strong Message to Forum-shoppers and Aberrant Judges