Name of Judge: Chief Justice Dipak Misra

Post Held at Relevant Time: Chief Justice of India

Current Status: Chief Justice of India

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Analysis/Comment/Critique:

In-house complaint  (Read complaint with Annexures part 1, part 2, part 3) 

The Executive Committee of the Campaign for Judicial Accountability and Reforms submitted a complaint against Chief Justice Dipak Misra to the 5 senior most judges of the Hon’ble Supreme Court after Justice Misra, on the 15^th of January 2018. The Complaint was made under the in-house procedure for investigating complaints against judges of the High Courts and the Supreme Court. The complaint alleged serious acts of misconduct and urged that an in house committee of three/five judges be set up to inquire into allegations in the complaint. No action was initiated under the in house mechanism to inquire into these charges. The main charges in this complaint against the Chief Justice of India are as follows:

• The facts and circumstances relating to the Prasad Education Trust case, show prima facie evidence suggesting that the Chief Justice of India, Justice Dipak Misra may have been involved in the conspiracy of paying illegal gratification in the case, which at least warrants a thorough investigation. (Read the Writ Petition (Criminal) Campaign for Judicial Accountability and Reforms vs. UOI & Anr, Read the final order dismissing the case with a 25 lakh fine on the petitioner)

• That the Chief Justice of India, Justice Dipak Misra dealt on the administrative as well as judicial side, with a writ petition which sought an investigation into a matter in which he too was likely to fall within the scope of investigation since he had presided over every bench which had dealt with this case and passed orders in the case of Prasad Education Trust, and thus violated the first principle of the Code of Conduct for judges.

• That the Chief Justice of India appears to have antedated an administrative order dated 6^th November 2017 which amounts to a serious act of forgery/fabrication.

• That Justice Dipak Misra acquired land while he was an advocate, by giving an affidavit that was found to be false and despite the orders of the ADM cancelling the allotment in 1985, surrendered the said land only in 2012 after he was elevated to the Supreme Court. (Read Mr. Shanti Bhushan’s article in TheWire Should a Judge With a Serious Moral Flaw Become Chief Justice of India, dated 2^nd August 2018)

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Impeachment motion (Read impeachment motion)

On the 20^th of April 2018, 64 members of seven opposition parties signed a notice of motion for the removal of Chief Justice Dipak Misra and submitted it to the Vice President in his capacity as Chairman of the Rajya Sabha. This was the first time in the history of Supreme Court of India that such a move had been initiated against the Chief Justice of India. On the 23^rd of April, the Vice President rejected the notice of motion in a completely arbitrary manner and without any application of mind. The motion, which was fully documented and contained serious charges of misconduct against the Chief Justice of India made out a case for constituting an inquiry committee under section 3 (2) of the Judges Inquiry Act, 1968. This move by the Vice President was clearly beyond the scope of his powers and role under the Judge Inquiry Act. (click to read Vice Presidents rejection order)

Petition challenging Vice Presidents order rejecting the notice of motion 

After rejection of their notice of motion for removal of the Hon’ble Chief Justice of India, by the Vice President of India, two Members of Parliament approached the Supreme Court demanding a direction to the Rajya Sabha Chairman to constitute a committee to investigate the allegation against the CJI as presented in the notice of motion. The Petition asserted that the rejection of the motion by the Vice President was “ex facie illegal, arbitrary and violative of Article 14”, and demanded that the order be quashed.  The MPs withdrew their petition after a five-Judge Constitution Bench refused to give them a copy of the administrative order placing their petition before a Constitution Bench. The petition was dismissed as withdrawn.

(click to read the petition)

Click to read RTI application filed in the Supreme Court by Advocate Prashant Bhushan seeking information on the administrative order constituting the bench to hear the challenge to the Vice Presidents rejection of the notice of motion for removal of the Chief Justice of India

Read the first appeal against the order of the Supreme Court PIO

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Chief Justice of India as the master of roster 

Senior Advocate Mr. Shanti Bhushan filed a writ petition under article 32 of the Constitution of India to clarify the administrative authority of the Hon’ble Chief Justice of India as the mater of roster and for laying down the procedure and principles to be followed in preparing the roster for allocation of cases. The petition raised issues concerning the extremely disturbing trend of listing matters subjectively and selectively as clearly discernible from the available data of matters recently filed and listed before only certain Hon’ble Benches. This trend the petition stated, reflected a serious erosion of independence of the judiciary, namely, the Hon’ble Court in deciding matters objectively and independently by resorting to the method of favoured listings. The petition stated that the powers being exercised by the Hon’ble Chief Justice and the concerned Registry officials clearly reflected a pattern of favouritism, nepotism and forum shopping. The powers being exercised in this regard were purely administrative and it is well settled that administrative exercise of powers is subject to judicial review and if it is found that such exercise is vitiated on account of many extraneous factors like acting under dictation, abuse of discretion, taking into account irrelevant considerations and omitting relevant considerations, mala fides including malice in fact or malice in law, collateral purpose or colourable exercise of power, failure to observe principles of natural justice and take reasoned decisions and violation of doctrine of proportionality, together or separately vitiate the entire decision making process. The petition also stated that it has been held consistently by the Hon’ble Supreme Court that the cardinal principle of our Constitution is that no one howsoever lofty or mighty or highly placed can claim to be the sole judge of his power under the Constitution and that therefore, Rule of Law requires that the exercise of power by the Legislature, the Executive, the Judiciary or any other authority must be conditioned by the Constitution.

A bench of Justice Sikri and Justice Ashok Bhushan who heard the matter dismissed the petition observing that the principle on which the second judges’ case had established that consultation with the collegium in matters of judicial appointments is mandatory to avoid arbitrary discretion in the hands of one person, cannot be extended to the powers of the Chief Justice of India as master of roster in allocating cases .

(read the petition) (Judgement) 

Mr. Prashant Bhushan also submitted a letter to the Supreme Court Secretary General on the 2^nd of April when filing the petition(read letter), that this petition cannot be placed before the Hon’ble Chief Justice of India to either hear it on the judicial side or order on its listing, since the matter involves the powers of the Hon’ble Chief Justice himself, who is also made a respondent in the petition. He hence requested the Secretary General to seek the opinion of the next three senior most judges of the Supreme Court with regard to listing this petition.

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Links to Media Stories

https://thewire.in/health/curious-saga-chief-justice-india-handled-two-medical-college-cases

http://www.livelaw.in/putting-the-cart-before-the-horse-when-rs-chairman-rejected-impeachment-motion-against-cji-for-not-proving-allegations/

http://www.livelaw.in/breaking-2mps-move-sc-challenging-vice-presidents-order-rejecting-impeachment-motion-against-cji-justice-chelameswar-asks-lawyers-to-mention-tomorrow/

No Man Shall Be a Judge in His Own Cause* (*Conditions Apply)

Addendum: Contempt and the Supreme Court’s Humpty Dumpty Jurisprudence

Master and the roster

https://www.thehindu.com/opinion/op-ed/a-roster-of-questions/article22671006.ece

An opaque justice

http://www.livelaw.in/supreme-court-crossroads-senior-advocate-dushyant-dave/

http://www.tribuneindia.com/news/nation/congress-mps-withdraw-petition-on-impeachment-against-cji/586172.html

King of the court

 

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Details of individual/organization writing critique

Name: Campaign for Judicial Accountability and Reforms
Address: 6/6 Basement, Jungpura B, Delhi – 110014

Date of update: 04/07/2018