A Constitution Bench, on November 13, will hear a petition regarding a corruption case involving a former Odisha High Court judge who allegedly conspired with a "hawala dealer" to influence the outcome of a case pending in the Supreme Court in favour of a debarred private medical college.
The petition seeks an investigation into the case by a special team, supervised by a former Chief Justice of India. The Bench will comprise "first five judges of the Supreme Court in the order of seniority".
The medical college case in question was heard by a Bench led by Chief Justice of India Dipak Misra in August/September this year.
The petition filed by Supreme Court advocate Kamini Jaiswal, represented through senior advocate Dushyant Dave and advocate Abhimanue Shrestha , submitted that the CBI had registered an FIR and was investigating the corruption case.
The two-judge Bench of Justices J. Chelameswar and Deepak Gupta, who referred the petition to the Constitution Bench, noted its alarm at the contents of the FIR. “The FIR contained certain allegations which are disturbing. The allegations pertain to the functioning of this Court,” Justice Chelameswar recorded in the court order.
Chief Justice Misra
The petition has asked the Supreme Court to shift the case from the CBI to a Special Investigation Team led by a retired Chief Justice of India to ensure a fair investigation. It said that as the case involves “corruption in the very highest echelons of power, including the justice delivery system”, a probe by the CBI, a government-controlled agency, may affect the independence of the judiciary.
“As it appears from the FIR recorded by the CBI, attempts were being made to unduly and illegally influence the outcome of the petition which was pending before this Hon’ble Court…The FIR lodged by the CBI names a retired judge of a High Court as an accused, who was allegedly negotiating through a middle man to get the favourable order in a petition pending in this Hon’ble Court. The said petition was being heard by a bench headed by the present Chief Justice of India. The FIR therefore casts cloud on the judiciary at the highest level,” the petition noted.
Significantly, the petition urged that Chief Justice Misra should not be part of the Bench hearing it because the top judge had previously dealt with the medical college case under scanner.
“As the allegations pertain to a case which was being heard by a bench headed by the Hon’ble Chief Justice of India, propriety demands that the Hon’ble Chief Justice of India, ought not to deal with the present petition either on the judicial side or even on the administrative side. Therefore, the present petition can neither be heard by a bench presided by the Hon’ble Chief Justice of India nor can it be assigned to any other bench by his Lordship in his administrative capacity,” the petition contended.
It has to be seen whether Chief Justice Misra would be leading the Constitution Bench on November 13.
"Integrity of the judicial institution at stake"
The petition quoted the CBI’s FIR alleging a “bribery scandal” which names retired Odisha High Court judge I.M. Quddusi, Delhi resident Bhawana Pandey and “hawala operator” Biswanath Agarwal, all of whom hatched a conspiracy with the management of Uttar Pradesh-based Prasad Education Trust to influence its case in the Supreme Court in exchange for a “very large illegal gratification”. The Trust's medical college was debarred by the Medical Council of India for sub-standard infrastructure and facilities.
The petition quoted news reports that CBI raids in connection with the case saw seizure of close to ₹2 crore in cash and several incriminating documents. The agency had also seized ₹1 crore, which the hawala operator had handed over to an aide of the retired judge.
Events began to unfold on Thursday morning when Mr. Dave mentioned the petition before Justice Chelameswar’s Bench. Mr. Dave launched into a short narrative of the contents and allegations in the FIR and requested the Bench to hear the matter as soon as possible. Mr. Dave said the integrity of the judicial institution was at stake.
Usually, urgent matters like this are mentioned before the Chief Justice’s Bench. But Chief Justice Misra was at the time heading a Constitution Bench hearing the Centre-Delhi power tussle over who should administer the National Capital.
Moved by Mr. Dave’s submissions, Justice Chelameswar posted the matter at 12.45 p.m. Post noon, the Constitution Bench hearing before Chief Justice Misra in the Centre-Delhi spat came to an abrupt halt.
Meanwhile, Justice Chelameswar’s court called Mr. Dave’s case at the scheduled time. However, the proceedings witnessed an officer of the Registry of Supreme Court hand over to Justice Chelameswar a xerox copy of some “proceedings purportedly issued by the Chief Justice of India” in the corruption case.
But this did not have any effect on Justice Chelameswar’s Bench. Justice Chelameswar went on to place on record the document given to him by the Registry officer. Justice Chelameswar then proceeded to order the Constitution Bench to be set up and hear the corruption case on November 13.
“Having regard to the totality of the circumstances, we deem it appropriate that this matter be heard by the Constitution Bench of the first five Judges in the order of seniority of this Court. Having regard to the importance of the matter, we also deem it appropriate that the matter be listed on Monday, the 13th November, 2017,” Justice Chelameswar ordered.
Besides, in an interim order, Justice Chelameswar directed the case diary, materials and evidence collected so far by the CBI in the corruption case to be sealed and produced before the Constitution Bench on November 13. Justice Chelameswar recorded that these precautionary measures to keep the evidence safe was necessary “having regard to the nature of the case”.
