2nd February, 2018

thewire.in

The manner in which two medical colleges with similar case trajectories were dealt with raises serious questions about the propriety of the judicial and administrative orders in both these instances.

It has been reported that an in-house committee of three high court judges set up by the chief justice of India in December 2017 has found Justice Narayan Shukla of the Allahabad High Court guilty of judicial misconduct. The committee specifically looked into a judicial order passed by him on September 1, 2017 – and then corrected by hand three days later – permitting the GCRG Medical College to admit students for the year 2017-18.

It has also been reported that judicial work has been withdrawn from Justice Shukla on the recommendation of Chief Justice of India Dipak Misra, who has perhaps also recommended his impeachment.

This action taken against Justice Shukla in the GCRG case is being cited as evidence of Chief Justice Misra’s bona fides in the matter involving a conspiracy to influence the Supreme Court – which is the subject matter of an FIR filed by the Central Bureau of Investigation against another medical institution, the Prasad Institute of Medical Science (PIMS). However, the manner in which the cases of the two medical colleges unfolded, the CJI’s orders, action and inaction against Justice Shukla and especially his refusal to allow registration of an FIR against Justice Shukla, raise serious questions in the public mind that require answers.

Similar case history, different outcomes

On August 24, 2017, a bench headed by Chief Justice Dipak Misra, granted leave to the PIMS medical college run by the Prasad Education Trust to withdraw its writ petition in the Supreme Court, where it challenged the governments order rejecting permission for the college to admit students for the year 2017-18, and to approach the Allahabad high court. Given the fact that the CJI was directly dealing with many other cases of similarly placed medical colleges to whom the Medical Council of India (MCI) had refused recognition, this seemed a little surprising.

The very next day itself, an Allahabad high court bench headed by Justice Shukla granted an interim order to the Prasad Education Trust, allowing it to proceed with counselling and directing the MCI not to encash its bank guarantee. Thereafter, on August 29, in hearing the special leave petition filed by the MCI challenging the  relief given to the Prasad Education Trust, a bench headed by Chief Justice Dipak Misra directed that while the writ petition before the high court shall be deemed to have been disposed of, liberty is granted to the trust to again approach the Supreme Court under Article 32 of the constitution of India.

Allowing the college to approach the Supreme Court again in such circumstances was very unusual. Moreover, the interim order of the high court allowing counselling to continue  – and thereby admissions to continue – was not expressly set aside by the order disposing of the writ of the medical college in the high court.

On August 28, 2017, a similar case involving GCRG Medical College came up in the Supreme Court before the CJI’s bench.  The court granted leave to the college to withdraw its writ petition and approach the high court, and additionally ordered that the high court “while entertaining the writ petition, shall not pass any interim order pertaining to the academic year 2017-18.”

However on September 1, 2017, Justice Shukla at the Allahabad high court passed an order allowing the College to admit students for the academic year 2017-18. The MCI came in appeal to the Supreme Court and on September 6, a bench headed by Chief Justice Misra stayed the operation of the high court order and debarred the students admitted from continuing in the course. The bench also observed the irregularity in Justice Shukla passing a final order despite the Supreme Court disallowing the high court from passing any order with respect to 2017-18.

It goes without saying, that at this time, the facts of the GCRG Medical College case and the unconscionable order of Justice Narayan Shukla were clearly before the CJI when he passed this order on September 6 staying the order of the Allahabad high court. Also before him at this time were Justice Shukla’s orders in the Prasad Education Trust case grating interim relief to the college.

On the same evening that Chief Justice Misra passed his order in the GCRG Medical College case staying the  high court order “we really fail to fathom”, it is learnt from reliable sources that CBI officers went to him with the transcripts of conversations between middlemen, and other evidence recorded by them, showing almost conclusively the involvement of Justice Shukla in the conspiracy to receive a bribe in order to grant a favourable order in the matter of the Prasad Education Trust case.

The CBI also showed evidence that Justice Shukla received gratification of at least Rs 1 crore in the matter. The CBI reportedly told the chief justice that the recorded conversations showed that the college had asked for refund of the bribe from Justice Shukla and that they were meeting in Lucknow on September 7 for this purpose. The CBI team wanted to catch Justice Shukla on September 7 red handed – when he was to return part of the money – and arrest him. Yet the CJI refused the CBI permission to register an FIR.

The CBI then registered a preliminary enquiry (PE) report on September 8, 2017, after Chief Justice Misra refused permission to register an FIR against Justice Shukla on September 6. The PE report states as follows:

“Source also informed that Shri I.M. Quddusi and Shri B.P. Yadav met Hon’ble Justice Shri Narayan Shukla in the morning on 25.08.2017 at his residence in Lucknow regarding the matter and delivered illegal gratification. Source has further informed that on 25.08.2017, an order was passed in petition, Misc. Bench No. 19870 of 2017 filed by Prasad Education Trust, by a Bench, which included Hon’ble Justice Shri Nayaran Shukla. The order directed that the petitioners college shall not be delisted from the list of colleges notified for counselling till the next date of listing, i.e. 31.08.2017…

Sources informed that Justice Shri Narayan Shukla assured Shri I.M. Quddusi that he will return a part of illegal gratification previously received by him shortly.

Source also informed that Shri I.M. Quddusi and Shri B.P. Yadav met Hon’ble Justice Shri Narayan Shukla in the morning on 25.08.2017 at his residence in Lucknow regarding the matter and delivered illegal gratification….The aforesaid acts prima-facie reveal that Hon’ble Justice Shri Narayan Shukla of Lucknow Bench of the High Court of Allahabad in collusion with Shri I.M. Quddusi, Retired Justice of the High Court of Odisha; Smt. Bhawana Pandey; Shri B.P. Yadav and Shri Palash Yadav of Prasad Education Trust and Shri Sudhir Giri of Venkateshwara Medical College and unknown others, committed gross misconduct while discharging duties as a public servant.”

Even after being made aware of compelling evidence against a high court judge in accepting gratification, Chief Justice Misra refused to allow the CBI to register even a regular FIR against Justice Shukla, thereby preventing criminal action against him. The CBI has made a record of this denial of permission by the CJI in a notesheet.

Fine imposed for seeking probe

On September 19, the CBI registered its FIR in the matter of the Prasad Education Trust case, alleging  conspiracy, planning and preparation to bribe senior functionaries of the apex court. This was immediately followed by a raid where almost Rs 2 crore in cash was recovered and a retired judge of the Orissa high court , I.M. Justice Quddusi, Prasad medical college officials and middlemen were arrested.

Following this, the Campaign for Judicial Accountability and Reforms (CJAR) filed a petition in the Supreme Court seeking a court-monitored Special Investigation Team to probe the allegations in the CBI FIR in order to maintain the credibility of the institution of the Supreme Court and the people’s faith in the judiciary.

Much has been written about the eventual handling of this case – the manner in which it was dealt with on the judicial and administrative side by Chief Justice Misra despite him being on every bench that heard the case of the Prasad Education Trust, in an  arguable conflict of interest. It goes without saying that an investigation, if it was permitted, would have also extended to an investigation into the role of the judges that had dealt with the case in the Supreme Court. Despite this, in an unprecedented hearing on November 10, the chief justice asserted his supremacy as master of roster. The CJAR case was then listed by him before a bench of junior judges, one of whom was with the chief justice in all hearings of the Prasad Education Trust case and would ordinarily  have been expected to recuse himself from the case hearings. This bench then dismissed the case and imposed an exemplary cost of 25 lakhs on CJAR, an organisation working in the public interest for greater transparency and accountability in the manner and functioning of the judiciary.

It is only when this matter of the CBI FIR, subsequent raids and arrests of the middleman and the CJAR petition seeking a probe into this whole conspiracy became a public spectacle, that Chief Justice Misra had the GCRG Medical College case, pending from September 6, listed before himself on November 23.

It is important to note here that both the Prasad and the GCRG Medical Colleges were given adverse reports by the final hearing committee of the government when they approached the Supreme Court. Both colleges were found deficient on various grounds, with the assessor noting about GCRG “the functioning of the hospital as per norms is in serious doubt” and  in the Prasad case “the campus wore a deserted look and hospital door was closed during their second visit”. These and other gross deficiencies led to the final government debarment of these two colleges for the academic year 2017-18.

Also Read: Medical College Bribery Scam: CBI Tapes Talk of ‘Prasad’
for ‘Temple’ in Delhi, Allahabad

The Supreme Court’s final order in the Prasad medical college case dated September 18 is based on a September 1, 2017 order debarring Venkateshwara College. If the Prasad college was to be debarred based on this September 1 order, why was the Prasad order delayed till September 18? Interestingly, this order was uploaded on the Supreme Court website in the evening of September 21, after the CBI’s FIR and raids.

Vikas Singh, who was counsel for the Medical Council of India in some of these cases, has pointed out that five similar cases of five medical colleges were listed for hearing on September 18. He claims that similar orders had been passed in all those five cases by the court, i.e. not allowing admissions for the current year but allowing their applications to be examined for the next year and directing that their bank guarantees not be encashed. He cites these as a ground for saying that the orders in all these cases were in fact issued on September 18 itself, prior to the CBI’s FIR and raids. Interestingly, his own letter points out that the dates for uploading of these orders in each of these five cases were all different, though each is supposed to have been heard and orders passed in court on September  18 itself. The dates of uploading of these five cases are as follows:

The question is, if orders were indeed issued in open court on September  18 in each of these cases, why were they not uploaded immediately or soon thereafter? Why are they all uploaded after the CBI’s FIR and why on different dates running right up to October 13, more than three weeks after the purported passing of the order?

The transcripts

The evidence with the CBI before it registered this FIR includes several tapped conversations between the middleman Biswanath Agarwala, Justice (retd) I.M. Quddussi and officials from the medical college. The transcripts of some of these conversations are dated September 3, 2017 and September 4, 2017. These dates are crucial. Since the second writ petition of the Prasad medical college was admitted in the Supreme Court on  September 4. The transcripts indicate heavy negotiations were on to get the matter fixed. The bribe money was being negotiated and hearing dates were being sought to be manipulated. A relevant portion of the conversation from transcript dated September 3, 2017 is as follows:

V: Yes I think, in which is theirs, in which temple is it – Temple of Allahabad or Temple in Delhi
Q: No no it is not in any temple yet, now it needs to be
V: Yes yes yes! So now you can talk about it, he will do it. About that I have spoken about it there
Q: Has said for sure (pucca)
V: Yes yes. In that you see this one thing…100% this, our person who is our captain, it is being done through the captain, so what is the problem. Tell me?

(V – Vishwanath Agarawala, Q – Justice (retd) I.M. Quddussi)

It is relevant to note that writ petition no. 797/2017 of the Prasad Education Trust was admitted a day later, on September 4, 2017, by a bench headed by Chief Justice Dipak Misra. The bench issues notice on the new writ.

As quoted above, and in the excerpt below, reference has been made in the conversations to the “captain” who will get the matter favourably settled on the payment of the bribes:

V: He knows that we people say 200 bahi. 500 bahi you tell them, 500 gamla! We will say 200 gamla there, 100 gamla we will give, 100 we will give later.
V: 500 tell him to do..that work is very difficult work…we should also get, you and I
Q: Alright, alright, alright
V: Yes that will be done for sure. Have had a complete talk, there is no problem
Q: Ok so tomorrow we will meet
V: Now only one thing father is saying, one thing he is saying that, this captain of ours has … all over India…whatever work there is, he is willing to do

Further, the tapped conversation from September 4, 2017 between Biswanath Agarwala, Quddussi and B.P. Yadav (of the Prasad Education Trust), refer to the said petition under article 32 being filed that day and that the next date for hearing given by the court is “Monday”. The Monday after September 4 is September 11, 2017 when the matter of Prasad Education Trust was indeed listed and again heard by a bench headed by Chief Justice Misra, that directs the matter to be further listed on September 18, 2017.

Q: They say they filed their petition. Today they have given a date for Monday. They are asking when- how much will it be and how and secondly how can they believe their work will be done for sure.
V: Are these those medical people?
Q: Yes yes
V: Ya so the date is listed for the coming Monday?
V:  Yes so that is review ?
Q: No no it’s a petition under art 32
V: Yes yes yes. There is no such assurance/guarantee. If they give the stuff work would be done 100%…

On November 23, 2017, Chief Justice Misra debars GCRG Medical College from admissions for the academic year 2017-18 and imposes a cost on the college apart from ordering the college to pay a sum of Rs 10 lakh to each affected student.

The case of these two medical colleges and the CJI’s handling of them comes to a curious juncture when he orders an in-house enquiry in December 2017 – nearly two months after this matter has become a public scandal and the subject of many prime time debates on the state of the judiciary. This inquiry was initiated based on Justice Shukla’s September 1, 2017 order. If his order in the GCRG case warranted an in-house inquiry, why was this not ordered in the case of the Prasad Education Trust, where an identical interim order was passed by Justice Shukla and which came up before Chief Justice Dipak Misra well before this? Also, if this was serious enough for an in-house inquiry, why was permission denied to the CBI to register an FIR particularly when the CBI had presented documentary evidence of bribery in the case, or, at the very least, an inquiry not launched then?

It is because questions like this have arisen that a thorough, independent enquiry/investigation is required into the whole case, which may clarify the Chief Justice of India’s own role in this matter, in the public interest. The CBI would not be the appropriate agency to undertake this investigation, being a government-controlled agency .

Given his role as the master of the roster,  the chief justice is in a position to control the outcome of every politically sensitive case that comes before the Supreme Court. Disquiet about the manner in which he has exercised his authority has been expressed by the four senior most puisne judges. It was in such circumstances that the Campaign for Judicial Accountability and Reforms had asked for a court-monitored SIT to investigate this case.

Up to five top judges now

Given that the CJAR case has been dismissed and the CBI has been denied permission to investigate and charge Justice Narayan Shukla, what is the process by which attendant issues such as the  CJI’s role can be examined?  And who can examine it?

According to the Supreme Court’s judgment in K. Veeraswami, the government would have to seek permission from other judges of the Supreme Court to register an FIR and investigate the Chief Justice through the CBI. Using this, the government can keep the sword of Damocles hanging over the Chief Justice. It goes without saying that this would provide the executive a weapon with which the independence of the judiciary may be breached.

It is in under these grave circumstances that the CJAR has been forced to file a complaint against Chief Justice Misra with the five senior most judges of the Supreme Court (other than the CJI). We are seeking an in-house enquiry against the chief justice. This is indeed an extraordinary step but extraordinary situations call for extraordinary actions. The independence of the judiciary and the fate of our democracy hang in balance. The ball is now in the hands of the five senior judges of the Supreme Court. The country awaits their move.

Prashant Bhushan and Cheryl D’souza are convenor and secretary respectively of the Campaign for Judicial Accountability and Reforms