Shamsher Chandel, The Hush Post: At about 12:00 noon, the four senior-most judges of the Supreme Court did what normally the news channels are derided for – BREAKING NEWS. News channels are notorious for frivolous use of ‘breaking news’ tag on unimportant issues, or breaking a lot less than what they know. As the four judges of the Supreme Court –Kurian Joseph, J. Chelameswar, Ranjan Gogoi and Madan Lokur called the press, there was excitement among news hounds of hearing an untold story. But at the end of the press conference the four judges behaved like the news channels, broke no news. Their address to the nation was something which could have seemingly been resolved just across the table or “Did they stop just on the brink and deliberately?” is what the experts say.
Justice Chelameswar addressed the proceeding, calling it an “extraordinary” event in the history of India and its judicial institutions. “Sometimes, the administration of the Supreme Court is not in order. There are many things less than desirable that have happened in the last few months… As senior-most justices of the court, we have a responsibility to the nation and institution. We tried to persuade the CJI that some things are not in order and he needs to take remedial measures. Unfortunately, our efforts failed. We all believe that the SC must maintain its equanimity. Democracy will not survive without a free judiciary.”
“There have been instances where case having far-reaching consequences for the nation and the institution had been assigned by the Chief Justice selectively to the Bench “of their preference” without any rationale for this assignment. This must be guarded at all costs,” he said.
WHAT’S AT THE CENTRE OF IT ALL?
The allegations are that since Justice Dipak Mishra is in the midst of many a row — assignment of Justice BH Loya’s death’s case to a Bench, MCI scam, Arunachal Pradesh’s ex-chief minister Kalikho Pul’s suicide and certainly as former president of Supreme Court Bar Association Dushyant Dave raised in the Indian Express where he wrote that,“….the Chief Justice has been exercising his powers in an opaque manner.”
He further added: “A little insight reflects that the Constitution Benches are constituted by including certain judges and excluding certain others. And senior judges and even judges known for their proficiency in certain branches of law are excluded from such benches.”
Insiders say, since Justice Mishra assigned Judge Loya’s death’s case in which Amit Shah’s name came up to a fellow judge from his home state Orissa and matters as important as this to judges junior to some of the senior brother judges is what has been questioned by Justice Chelameswar and three other judges. And it probably took a wrong turn, insiders say, because the Chief Justice of India Justice Mishra’s name has come up directly or indirectly in one investigation headed by CBI which is directly in control of the government — a government which is politically aggressive about judicial issues, right from appointment of judges through which the government could get a leeway or gateway into judiciary and thus judicial intervention by the legislature.
JUSTICE CHELEMESWAR VERSUS DIPAK MISHRA IN THE ‘COURT’ OF MEDIA
The medical admission scam or simply MCI scam hit headlines sometime in September when a retired judge of the Orissa High Court and five others were arrested by the CBI for allowing private medical college register students despite a ban by the Supreme Court.
- As per CBI, Justice IM Quddusi, a former judge with the
Orissa High Court and Bhawana Pandey, his alleged accomplice helped the Prasad Education Trust admit students in different courses in Lucknow.
- The Prasad Institute of Medical Sciences, Lucknow, along with some others were barred by the government from admitting students due to sub-standard facilities.
- Justice Quddusi and Bhawana Pandey ‘assured’ the Trust that the issue would be settled favourably in the Supreme Court.
- Judge Quddusi and Pandey had a middleman Biswanath Agrawala. Apart from these three, there was a hawala operator Ramdev Saraswat. The CBI seized Rs 1 crore during searches from Agrawala and later another Rs 90 lakh was recovered.
- Subsequently, the Prasad Institute challenged the government’s decision of debarring the institute.
- That is when a Supreme Court Bench headed by Justice Dipak Misra directed the Centre to review its order to debar medical colleges. Government refused.
- Now the Prasad Institute challenged the government order in the SC afresh. A few days later, on the advice of Justice Quddusi, the petitioner withdrew the plea from the apex court and moved the Allahabad High Court.
- The Allahabad High Court provided temporary relief to the petitioner staying the debarment. 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.
- Meanwhile, the Campaign for Judicial Accountability and Reforms filed a petition in the Supreme Court seeking setting up of an independent probe by an SIT headed by a retired chief justice of India.
THIS IS WHEN IT GOT WORSE
The petition was first put up before the Bench of Justice J Chelameswar, who admitted it. 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 probe by an SIT. 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 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.