Attorney General of India K K Venugopal told the Supreme Court Monday that developments in the wake of two petitions seeking an SIT probe into alleged judicial corruption involving a blacklisted Lucknow medical college had “caused deep wounds on the judiciary and the Bar” and “will take a long time to heal”. This prompted the bench to remark that “damage has already been caused… outcome does not matter… everyone is doubting this court unnecessarily”.
Venugopal made the remarks while appearing in his personal capacity before a three-judge bench of Justices R K Agrawal, Arun Mishra and A M Khanwilkar which, after hearing arguments for over 90 minutes, reserved its order on the maintainability of one of the two petitions — this one was filed by advocate Kamini Jaiswal — saying it would pronounce it Tuesday.
Referring to allegations in the CBI FIR that Justice I M Quddusi, a retired High Court judge arrested on September 21, had promised promoters of the Lucknow-based Prasad Institute of Medical Sciences, one of 46 medical colleges barred from admitting students for two years, to get their matter settled in the apex court through their contacts, Venugopal said “no evidence had been adduced to further Quddusi’s statement that money was collected to pay any judge”.
The CBI claimed that Quddusi and five others, who were arrested in the case, were involved in deals to try and secure favourable orders from courts.
Opinion | Pratap Bhanu Mehta writes: The judiciary has created a crisis of institutional credibility for itself
Citing this reference in the FIR, Prashant Bhushan, who appeared for petitioner Jaiswal Monday, had last Friday — he was appearing then on behalf of NGO Campaign for Judicial Accountability and Reforms (CJAR) — demanded that Chief Justice of India Dipak Misra stay away from taking any judicial or administrative decisions in the matter since a bench headed by him in the past had dealt with the case of the Prasad Trust that runs the medical college.
Venugopal described the petitions as “hasty”, intended to “drag the investigation in a particular direction towards a particular result”. Denying that any judge was named in the FIR, he wondered “why on earth must you say when no judge is named, it must be this judge and no one else?”
Responding to the Attorney General, Justice Arun Mishra said “damage has already been caused… outcome does not matter… everyone is doubting this court unnecessarily”.
Venugopal said: “The buck stops at Quddusi who unfortunately happens to be from Orissa. So somebody presumes if he is from Orissa, he is linked to a particular person.” He said “the petition should not have been filed”.
Justice Mishra asked “how this damage can be repaired”. At this, Venugopal said “damage can be repaired only by withdrawing the petition unconditionally”.
Referring to the slanging match in the court room last Friday, the Attorney General said it was upsetting to see “members of the Bar shouting down the other side, and the other side also raising its voice… this is a case where there is crisis of confidence itself”.
But petitioner Jaiswal seemed in no mood to withdraw her plea. Her lawyer Prashant Bhushan said it was true that the FIR had not named any judge. “The petition does not make any allegation against the CJI. Somehow an impression was trying to be created that it blamed the CJI,” he said. The sole aim of the petition, he said, was to ensure that the case was monitored by a retired Chief Justice since the CBI, being a government agency, could be misused by the state to put pressure on the judiciary. “Since CJI and some others were mostly dealing with this (matter), they ought not to have heard this matter,” he said.
At the outset, senior advocate Shanti Bhushan, who also appeared for Jaiswal Monday, said the matter raised several Constitutional questions and must be dealt with by a Constitution Bench.
He also questioned the constitution of the three-judge bench which heard the matter Monday. He said one of the judges on it was part of the bench that dealt with the Prasad Trust case. Shanti Bhushan wanted to know if the judge would recuse himself from hearing the matter. At this, Justice Khanwilkar replied in the negative.
Shanti Bhushan persisted: “We will file a formal application for recusal.” Justice Mishra said, “No, we are not allowing you to file any application.” Questioning the November 10 order by a five-judge Constitution Bench which said the Chief Justice of India was the master of the court roster and only he had the power to constitute benches and allocate work to judges of the court, Shanti Bhushan said it was “totally illegal and violated Article 142 of the Constitution”.
He said Article 142 gave the Supreme Court wide powers to do anything necessary in the interest of justice but forbade it from doing anything unconstitutional. “It is only a rule that only CJI can constitute a bench. That’s not part of Constitution,” he said, adding that Article 142 “clearly permitted” Justice J Chelameswar who headed the two-judge bench to pass the November 9 order that the petition be heard by a Constitution Bench comprising the five most senior judges of the court — it was annulled Friday by another ruling.
Justice Arun Mishra asked the petitioner’s counsel about the need to file a second petition on November 9 when another plea with similar prayers had already been filed on November 8 and marked for hearing before another bench on November 10. He sought to know if this would not amount to forum shopping and contempt.
“We are examining if it will tantamount to forum shopping. When one petition is filed, whether it was appropriate for a member of that body (which filed the first petition) to file second petition… whether the prayer that CJI must not hear the matter will not amount to contempt,” Justice Mishra said.
To this, Prashant Bhushan replied that this was because Justice Chelameswar, while dealing with the CJAR petition on November 8, had said that it will be heard by him only on November 10. But by lunch time, it was informed that the CJI had shifted the matter to another bench. The second plea, he said, was filed because the petitioner felt that the CJI ought not to have even exercised administrative jurisdiction in the matter since he had in the past dealt with the Prasad Trust case.
Indicating that the allegations against the CJI were rumours, Justice Arun Mishra also sought to know how any judge can be held liable if any lawyer misuses his name. He also asked the petitioner’s counsel why they were particular on Court 2 (of Justice J Chelameswar) hearing the matter.
Prashant Bhushan replied that they mentioned it before Court 2 because the practice is that if the CJI is busy with Constitution Bench matters, urgent matters are mentioned before the second most senior judge — in this case, Justice Chelameswar in Court 2.
Justice Arun Mishra said it was unfair to discriminate among courts: “We are all equal”. At this, Prashant Bhushan asked: “If all judges are equal, when this matter was referred to five judges, why was it changed?”