Question of conduct

The complaint filed by the Campaign for Judicial Accountability and Reforms against the Chief Justice of India serves as the latest reminder of the urgent need for reform in the Supreme Court.

Prashant Bhushan at a press conference in New Delhi on January 16.

On January 15, barely three days after four senior judges of the Supreme Court addressed a press conference, in an unprecedented development, the Campaign for Judicial Accountability and Reforms (CJAR) sent a written complaint to five most senior judges of the court demanding an inquiry against the Chief Justice of India for allegedly committing “several acts of serious misconduct”. It was authored by Prashant Bhushan, convener of the CJAR.

Invoking the “in-house procedure” that provides for remedial action against High Court and Supreme Court judges if they do not adhere to the “values of judicial life”, the complaint mentioned four specific charges against the CJI.

Detailing those charges over 24 pages, the complaint sought an inquiry by a committee of either three or five most senior sitting judges in the Supreme Court. While the “in-house procedure” is silent about what needs to be done if a complaint is received against the CJI, the CJAR complaint suggests a method by citing past court judgments in India and the practice followed in the British legal system. So, in the legal history of the country, this may be seen as a significant intervention if it is accepted by the senior judges.

The complaint is significant for its timing, coming days after the judges’ press conference.

All the four charges it mentions as “apparent acts of misconduct” by the CJI are related to two issues—the “medical scam” cases and the acquisition of government land by Dipak Misra by filing a false affidavit while he was enrolled as an advocate in Odisha.

The medical scam cases refer to a conspiracy by some middlemen, erstwhile members of the higher judiciary and the Lucknow-based Prasad Education Trust to get favourable orders from courts in an ongoing case for the college run by the trust which failed to get official registration.

The first charge is: “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.”

It elaborates on the relevant “facts and circumstances”, which include the fact that Dipak Misra “presided over every bench that heard the matter of this medical college”, which, at present, is being investigated by the Central Bureau of Investigation (CBI) after it registered an FIR.

The CJAR complaint letter then details the legal journey, through various petitions and orders, of the case in the apex court as well as the Allahabad High Court, which also heard the matter. Critically, the letter claims, citing “reliable sources”, that the CJI denied permission to the CBI for registering a regular FIR against a judge of the Allahabad High Court who passed an interim order that was favourable to the controversial medical college.

In the eyes of the CJAR, this denial of permission by the CJI “further strengthens doubt regarding the role of the Chief Justice of India in the Prasad Education Trust matter” because of multiple reasons.

The complaint claims that the CBI went to meet the CJI with its request for permission to register an FIR against the judge on September 6, 2017. During its meeting, the CBI presented incriminating evidence such as some transcripts of recordings of phone conversations between conspirators who sought to bribe the judge, apart from other things gathered during the course of a preliminary enquiry, which “almost conclusively” showed that the judge received “gratification of at least one crore in the matter”.

In the second charge, which is related to the first, the complaint describes a “violation of the first principle of the code of conduct for judges”. It says: “That the Chief Justice of India dealt on the administrative as well as the 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 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.”

The first principle of the code of conduct says: “Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people's faith in the impartiality of the judiciary. Accordingly any act of the judge of the Supreme Court or a High Court, whether in official or personal capacity which erodes the credibility of this perception has to be avoided.”

According to the CJAR complaint, the CJI’s “violation” of the code of conduct was evident in the manner in which two petitions—one filed by the CJAR itself and another a related writ petition filed by Kamini Jaiswal in November 2017—were dealt with in the apex court. It describes in granular detail the constantly changing timings of the hearings and benches which were to hear both the petitions. It also quotes the CBI FIR which alleges that a “conspiracy” existed to bribe and influence the outcome of a case pertaining to the Prasad Education Trust, which was being heard by a bench headed by the CJI.

This fact, in the CJAR’s reckoning, made the CJI an “interested party” with an obvious “conflict of interest” (see “Crisis of Leadership”, Frontline , December 8, 2017).

Notwithstanding these factors, the CJAR complaint points out, the CJI was involved in the judicial side (he presided over the bench that heard the CJAR petition) and the administrative side (he decided which bench would hear the related petition filed by Kamini Jaiswal) in the matter. In the light of these circumstances, the complaint asserts, a thorough investigation is definitely warranted.

The third charge is: “That the Chief Justice of India appears to have antedated an administrative order dated 6th November 2017 which amounts to a serious act of forgery/fabrication.”

Antedating is essentially the act of assigning a date earlier than the actual occurrence of an action. In the current context, the CJAR complaint pointed towards an administrative note brought by the court Registrar on November 9, 2017, while the previously described petition filed by Kamini Jaiswal was being heard. This note stated that whenever matters pertaining to those raised by the petition being heard come up in the future, they may be listed before the bench of the CJI. The CJAR complaint claims that though this note was dated November 6, it “appears to be antedated and appears to have been prepared and issued on 9th November 2017 itself”. It describes at some length the circumstances that point towards the possibility of the note having been antedated. This is serious, the complaint says, because, “antedating of a document of this kind is a serious act of forgery and fabrication and amounts to serious misconduct”.

The fourth and final charge describes a purported case of misconduct from the CJI’s past when he was serving as an advocate in Odisha. It states: “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.”

But why should an old land allotment case be reconsidered? The complaint argues: “The act of Justice Dipak Misra in seeking this allotment as a lawyer for raising a fodder farm is itself improper. As a lawyer, under the Bar Council of India rules, he is not allowed to conduct any business. Moreover, seeking the allotment by filing a false affidavit is even more serious misconduct. Finally, keeping possession of the plot for many years even after cancellation of the allotment is even more serious misconduct.”

In addition to these arguments is the fact that the CBI investigation into this and many other land transactions, initiated after the Odisha High Court directed an inquiry, has not yet been completed.

Notwithstanding the elaborate documentation of these charges in their complaint, the CJAR and Prashant Bhushan did not, until the time of filing this report in late January, receive any response from the five most senior judges of the apex court.