22 April 2018

Pin It

In Depth Explained 5 Charges leveled against Chief Justice Dipak Misra

In Depth Explained 5 Charges leveled against Chief Justice Dipak Misra

A notice of motion for presenting an address to the President of India for the removal of Chief Justice Dipak Misra, Chief Justice of India was presented by 64 Members of the Council of States to the Chairman of the Council of States on the 20th of April 2018.

Notice of motion for presenting an address to the President of India for the removal of Mr. Justice Dipak Misra Chief Justice of India under article 217 read with 124 [4] of the constitution of India.

The present motion is presented for the impeachment of a sitting Chief Justice of India, namely Justice Dipak Misra, who was elevated as judge of the Honable Supreme Court on 10-10-2011 and was elevated as Chief Justice of India on 28-08-2-2017

Charge 1 -
The facts and circumstances relating to the Prasad Education Trust case, show prima facie evidence suggesting that Chief Justice Dipak Misra may have been involved in the conspiracy of paying illegal gratification in the case, which at least warrants a thorough investigation

The Chief Justice of India, Justice Dipak Misra presided over every Bench that heard the matter of this medical college which is the subject matter of the investigation in the FIR registered by the CBI. circumstances which raise reasonable doubt about the role of Justice Dipak Mishra in Prasad Education Trust matter are as follows:
That by order dated 1.08.2017 the bench headed by Justice Dipak Misra in the Prasad Education Trust writ petition (no. 442/2017) which was tagged with Glocal Medical College and Super Speciality Hospital and Research Centre v. UOI (no. 411/ 2017) , ordered that the government consider afresh the materials on record pertaining to the issue of confirmation or otherwise of the letter of permission granted to the petitioner colleges/institutions and that the Central Government would re-evaluate the recommendations of the MCI, Hearing Committee, DGHS and the
Oversight Committee , This by itself was not extraordinary

That on 24th August 2017, a Bench headed by Chief Justice Dipak Misra, granted leave to the Prasad Education Trust to withdraw the said writ petition and to approach the Allahabad High Court. This was certainly unusual, given the fact that Justice Dipak Misra was directly dealing with many other cases of similarly placed medical colleges to whom MCI had refused recognition.

That on the 25th of August 2017 itself, the Allahabad High Court granted an interim order to the Prasad Education Trust, allowing them to proceed with counselling and directing the Medical Council of India not to encash their bank guarantee. That thereafter on 29th August 2017, in hearing the SLP filed by the Medical Council of India from the order of the Allahabad High Court granting relief to the Prasad Education Trust, the 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 Prasad Education Trust to again approach the Supreme Court under Article 32 of the Constitution of India. The granting of liberty to the college to approach the Supreme Court again in such circumstances was very unusual. This is compounded by the fact that the interim order of the High Court allowing counselling to continue and thereby admissions to continue, was not expressly set aside by this order disposing of the writ in the medical college in the High Court.

Thereafter on 4th September 2017 , Justice Dipak Misra issued notice on the new writ petition filed by the Prasad Education Trust (writ petition no. 797/2017). It is really surprising that notice should have been issued on this fresh writ petition of the college if indeed the matter stood concluded by disposing of the writ petition of the college in the High Court on the basis of Mr. Mukul Rohtagi’s statement that he does not seek any relief other than non encashment of the bank guarantee. It is even more unusual because 1st September 2017, the same bench had already given
a judgment in the matter of a similar medical college namely Shri Venkateshwara University (Writ petition no. 445/ 2017), by stating that, “ The renewal application that was submitted for the
academic session 2017-2018 may be treated as the application for the academic session 2018-2019. The bank guarantee which has been deposited shall not be encashed and be kept alive”

This indeed became the basis of the final order in the Prasad Education Trust writ petition which is shown to be dated 18th September 2017. If the matter had to be disposed off mechanically by following the judgment of 1st September 2017, in the other medical college case, where was the occasion for first giving liberty and then entertaining the fresh petition of the college on 4th
September 2017 and keeping it alive till at least the 18th of September 2017?

It is also important to note that officials of Venkateshwara college are mentioned in the CBI FIR, “ Information further revealed that Shri B P Yadav got in touch with Shri I M Quddusi, Retd. Justice of the High Court of Odisha and Smt. Bhawana Pandey r/ o N-7, G.K. -1, New Delhi through Sh. Shudir Giri of Venkateshwara Medical College in Meerut and entered into criminal conspiracy for getting the matter settled .

That the order dated 18Ih September 2017, was not uploaded on the Supreme Court website till the 21st of September evening as is clear from the date stamp on the 18th September 2017 order. The order was uploaded 2 days after the registration of FIR by the CBI. This puts a question mark on whether indeed the order was dictated in open court that day or whether it was kept pending and dictated after the registration the FIR and the Besides the order reporting of that in the media, uploaded to the website has the date of 21st September 2017 stamped on it

Finally the manner in which the Chief Justice of India has tried to ensure that the writ petition filed by the Campaign for Judicial Accountability and Reforms (writ petition no. 169/ 2017) not heard along with the writ petition no. 176/ 2017 filed by Ms. Kamini Jaiswal by the senior most 5 judges of this court while hastily constituting a 7/5 judge bench, himself presiding over
that Bench , not recusing himself from the Bench even after being requested to do so, countermanding the order passed by Court No. 2 in Ms. Kamini Jaiswal’s petition to list the case before the 5 senior most judges and thereafter constituting a bench of 3 relatively junior judges which included one judge who had been party to the order in the Prasad Education Trust case, are further circumstances which raise serious doubt about his role in the Prasad Education Trust case, which is being investigated by the CBI

The CBI lodged an FIR on the 19th of September 2017, in the matters relating to criminal conspiracy and taking gratification by corrupt or illegal means to influence the outcome of a case pending before the Supreme Court. The FIR reveals a nexus between middlemen, hawala dealers and senior public functionaries including the judiciary'. The case in which the FIR has been filed
involves a medical college set up by the Prasad Education Trust in Lucknow. As it appears from the FIR lodged by the CBI, an attempt was being made to corruptly influence the outcome of the petition which was pending before the Supreme Court. The said petition was being heard by a bench headed by the Chief Justice of India

The evidence with the CBI , before it registered this FIR, includes several tapped conversations between the middleman Bisw'anath Agarwala, Shri I.M. Quddussi, Retd. Judge of the Orissa High Court and the Medical College officers. The transcripts of some of these conversations dated 3.09.2017 and 4.09.2017, have been received by the Campaign from reliable sources and may
be verified from the CBI.

It is important to note that the tapped conversation on 3.09.2017 between Shri Quddusi and Biswanath Agarawala (middleman ) , indicate that negotiations are on to get the matter of the Prasad Education Trust Medical College settled in the Apex Court. A relevant portion of the conversation from transcript dated 3.09.2017 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 - Shri I.M . Quddussi)

It is relevant to note that the writ petition no. 797/2017 of the Prasad Education Trust was admitted a day later, on the 4.09.2017 by a Bench headed by the Chief Justice Dipak Misra, that issues notice on the new writ petition filed by the Prasad Education Trust. 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 . India...whatever work there is, he is willing to do all over

(V - Vishwanath Agarawala Q - Shri I.M. Quddussi)

Further the tapped conversation from 4.09.2017 between Biswanath Agarwala , Shri I .M . Quddussi and Mr. BP Yadav (of Prasad Education Trust), refer to the said petition under article 32 being filed on 4.09.2017 and that the next date for hearing given by the Court being “ Monday” . The Monday after 4.09.2017 is 11.09.2017 when the matter of Prasad Education Trust was indeed listed and again heard by a bench headed by the Chief Justice of India that directs the matter to be further listed on the 18.09.2017.

“ 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 7es yes yes. There is no such assurance/ guarantee. If they give the stuff work would be done 100%...

Yadav - So that day I had gone to the High Court because, see brother, that time on/ in it money was stuck. No I spoke/ said very clearly. That’s why we went. From there they/ he gave an order. . After coming here, they dismissed it. They/ he said to file a fresh petition. Under article 32 a fresh petition has been filed. It had a date set, the date was pushed to the 11th by them/ him. So what we want is that tomorrow we make your ticket and for that sorry.

Vishvanath Ji I will give it to you, now you get our work done for us.

V - No, the work is not even 100% but 500% > guarantee. But the luggage before and he/ they is/ are saying no to meeting because the government that is going on - Tea seller’s government.
will have to be given •i f * * • That is watching everyone, that is the problem...

Yadav - No Prasad will be needed. We will give the Prasad. We have to give the Prasad.

V - Work will be done 100%, but I wont go to speak tomorrow or day after. You keep the luggage/ stuff ready... if given we people will get it done 100%

Yadav - Meaning advance will have to be given

V - Yes, advance has to be given to them/ him. Otherwise why will they/ he do it, you say. There is no written- reading in these matters. All this runs on
belief in this world. They/ he will do it 100%. Yadav - Tell me what has to be given. I have only one college I can’t trust another.

V - Will get it done for 1.

Yadav - Tell me clearly, what will I have to give. We don’t have much capacity. Make us speak, if boss/ sir is there then make us speak, I will talk to boss/ sir.

V - No there’s no problem. We/ 1 will get the work done.

V - No they/ he said for 1. I had spoken for 1, they/ he said three. 2.5 has to given there, 50 will be kept with us.

Q - So how much advance has to be given They/ he said at that time, for review petition give 100 people. If the review is allowed, then even you will get to know. Then we....

V - Advance now.

Q - Then you do one thing. You do one thing. His is listed for Monday, postpone the date by 3-4 days.

V - So we will send a few people. So 3-4...if you give 2 people then we will extend the date by 3-4 days.

V - On Monday we will finalize. They give us the luggage/ stuf f(saamaan) - some 2-2.5; no problem some order will be given. Papa see here. Neither will it put you in a problem nor will it put me. Because there the association will talk. Won’t reach, otherwise we will be stuck in a lot of problems. If we are not  able to do the work, then we will return the luggage/ stuff (saamaan) that is here. There is no chance that work will not be done. There we have spoken clearly, that it will be allowed.

Q - Here, talk to them/ him.

V - Yes, conversation was clear. Calculated as per three. They/ he wont do it for less than 3.

Yadav - Hello

V - Yes, we had spoken last time also. Sir for 1 they were asking for 3. If 3 is given total will be allowed to those ask for prayers. I told him, he was talking about 5 at the time. They/ he were speaking of 15 bricks, even last time they were speaking about that only.

Yadav - So all the money will go in advance.

V - Sir I don't want to take any risk there, because it’s a 100% guarantee job. If you give it there, your work will be done 100% guarantee. No ifs and buts. Once work Is done, sir will sit for 10-15 months. Get 14-15 jobs done, even you will believe it. He will do it 101%.

Yadav - So when should I give, tell me.

V - Date is 11th, so if it can reach us by 6-7th we will get it done. Your work will get done by the 11th.

Yadav - Do it within 2.5 yaar, my capacity is only till 2.5. get it done.

(V - Vishwanath Agarawala Q - Shri I.M. Quddussi)

This evidence available with the. CB1, of the tapped conversations between Shri Quddussi, middlemen and the medical college officials, reveals that a conspiracy, planning and preparation was underway to bribe the judge/ judges who were dealing with the case of this medical college. It further reveals that negotiations regarding the amount of bribes to be paid were still on
while the matter was listed before a Bench headed by Chief Justice Dipak Misra on 4.09.2017 and 11.09 .2017. The references in the conversations between the middleman Biswanath Agarwala from Orissa and the officers of Prasad Education Trust to “Captain... has all over India” and to “ sir will sit for 10-15 months” seem to be referring to the Chief Justice. In light of the
convoluted course that the case followed and in light of these tapped telephonic conversations, this matter needs an independent investigation to ascertain the veracity of the claims being made in the conversations, of the plans to allegedly pay bribes to procure favourable order in the case of the Prasad Education Trust in the Supreme Court and to also clear the doubt about the role of the present Chief Justice of India .

Denial of permission to the CBI to register an FIR against Justice Narayan Shukla of the Allahabad High Court

The most serious circumstance that has emerged, which further strengthens the doubt regarding the role of the Chief Justice of India in the Prasad Education Trust matter , is his denial of permission to the CBI to register a regular FIR against Justice Shukla of the Allahabad High Court, who presided over the Bench that gave the interim order in favour of Prasad Education Trust. It is learnt from reliable sources that the CBI officers went to the Chief Justice of India on the 6th of September 2017, with the transcripts and other evidence recorded by them in
the FIR and preliminary enquiry, showing almost conclusively the involvement of Justice Shukla in this conspiracy and his receiving gratification of at least one crore in the matter. The CBI Preliminary Enquiry report was registered on the 8th of September 2017 after the Chief Justice of India refused permission to register an FIR against Justice Shukla on the 6th of September 2017. The Preliminary Enquiry report obtained from reliable sources 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. Further the encashment of bank guarantee was also stayed till the next date of listing. It was further clarified that on the basis of the order, the petitioners shall have no right to claim any admission of the students...

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.
The aforesaid acts primafacie 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 this extremely important and virtually conclusive evidence against Justice Shukla in accepting gratification, the Chief Justice of India
refused permission to the CBI for registering even a regular FIR against Justice Shukla, without which further investigation against him cannot be done and he cannot be charge-sheeted. It is reliably learnt that the officers of the CBI have made a record of this denial of permission by the CJI in a notesheet. By preventing the registration of an FIR against Justice Shukla and later by
dismissing the CJAR petition seeking a SIT probe into the allegation in the CBI FIR by a bench constituted by the Chief Justice, all investigation into the conspiracy to bribe judges for obtaining a favourable order has been virtually stalled. Ensuring that no further investigation is undertaken, into this serious charge of alleged judicial corruption , amounts to a serious abuse of power by the Chief Justice of India.

It has however subsequently been reported that the CJI has set up some in-house inquiry against Justice Narayan Shukla on the basis of some orders that he passed in another similar case of a Medical College. If this warranted an in-house inquiry, why was an in-house inquiry' not ordered in the case of 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 register an FIR particularly when the CBI had presented documentary evidence in the case. Therefore subsequent in-house inquiry ordered in this case appears to be an eye wash after this scandal became well publicized

Charge 2 -
That the Chief 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.

The Code of Conduct formulated in a Conference of all the Chief Justices in the country in 1997 which has been laid down in the ‘Restatement of Values of Judicial Life’,
says in the very first code: “ 1. 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.

The actions of Chief Justice Dipak Misra in dealing with this case in the manner detailed below, clearly violate this salutarv Code of Conduct.

On Friday 10th November 2017, writ petition no. 169/ 2017, Campaign for Judicial Accountability and Reforms v. UOI & Anr, was listed before Court no. 6. When this petition was mentioned for urgent hearing on 8th November 2017 before Court no. 2, it was directed that this matter be listed before Court no. 2 on Friday the 10th November 2017. Thereafter the registry informed the petitioner’s counsel Mr. Prashant Bhushan, that on account of the Chief Justice’s administrative order, the case would not be listed before Court , no. 2 but in another court. On the 10th of November 2017, when this matter was taken up before Court no. 6, the court was informed that in a similar connected matter of Kamini Jaiswal the court had already directed it to be listed before a Constitution Bench of 5 senior most judges of the court and therefore this should be tagged with that related matter. The order of this court was to place the matter before the Chief Justice for appropriate directions. However at 2 :45p.m. the petitioners counsel was telephonically informed that a 7 judge bench would sit in Court no. 1 and that he should come to Court no. 1 by 3p.m. Outside the court a notice had been put up mentioning the constitution of this bench as, Justice Dipak Misra , Justice A.K. Sikri, Justice R.K. Agrawal, Justice Arun Mishra, Justice Amitava Roy, Justice A.M. Khanwilkar and Justice Ashok Bhushan. However going inside the court, it was found that of those 7 chairs put up initially, two chairs were hurriedly removed and a
bench of 5 judges excluding Justice Sikri and Justice Bhushan sat at 3p.m.

The petitioners counsel was then told that the court was taking up the petition of the Campaign for Judicial Accountability and Reforms, wherein it had sought an
independent SIT supervised by a former Chief Justice of India and monitored by the court, into a CBI FIR making allegations of conspiracy and preparation to pay bribes to
procure a favourable order in the matter pending before the Supreme Court. It is relevant here to quote from the CBI FIR dated 19th September 2017:
"Information further revealed that Prasad Education Trust filed a Writ Petition (Civil) No 797/ 2017 in the Apex Court. Shri B. P Yadav, in furtherance of the said conspiracy requested Shri.
.I M Quddusi and Smt. Bhawana Pandey who assured to get the matter settled in this Apex Court through their contacts and they further engaged Shri. Biswanath Agrawala, a private
person R/ o HIG-136 , Phase 1, Kanan Vihar, Chandrashakerpur Bhuneneshwar, Odisha for petting the matter settled in the Apex Court Shn. Biswanath Agrawala claimed veru close contact
with the senor relevant public functionaries and assured that he would get the matter favourably settled. However, they demanded huge gratification for inducing the public servants bu
corrupt and illegal means in lieu of the aforesaid help

Further, the petitioners counsel requested the Chief Justice of India that it would be wholly improper for the Chief Justice to hear this matter in his judicial capacity or administrative capacity since this case involved investigation which may extend to his conduct as well, since he had presided over eveiy bench which had dealt with this case and passed orders in the case of Prasad
Education Trust. However ignoring all this and the clear principle of conflict of interest, the Chief Justice of India proceeded with the hearing and passed an order effectively nullifying the order of Court no. 2 in Ms. Kamini Jaiswal’s case, where the matter was ordered to be listed before the senior 5 judges of the Supreme Court since it involved an issue of importance and sensitivity.

It is well settled that no person can be a judge in his own cause ( nemo judex in sua causa) and accordingly no judge or administrative authority can deal with the case in which that person is himself interested or concerned.

In Ranjit Thakur v Union of India (1987) 4 SCC 611, this Honhle Court held: “ 15. The second limb of the contention is as to the effect of the alleged bias on the part of Respondent 4. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether Respondent 4 was likely to be disposed to decide the matter only in a particular way.  16. It is the essence of a judgment that it is made after due observance of the judicial process; that the court or tribunal passing it observes, at least
the minimal requirements of natural justice; is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a
nullity and the trial “ coram non-judice. 17. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party . The proper approach for the Judge is not to look at his own mind and ask himself , however. honestlu, “ Am I biased?” ; but to look at the mind of the partu before him. 18. Lord Esher in Allinson v. General Council of Medical Education and Registration said: “ The question is not, whether in fact he was or was not biased . The court cannot inquire into that. . . . In the administration of justice, whether by a recognised legal court or by persons who, although not a legal public court, are acting in a similar capacity, public policy requires that, in order that there should be no
doubt about the purity of the administration, any person who is to take part in it should not be in such a position that he might be suspected of being biased.

In Inderpreet Singh Kahlon v. State of Punjab, (2006) 11 SCC 356 : this Hon’ble Court held , “ 81. We also fail to understand as to whu two Senior judges who had headed the Committee
should have been made part of the Bench. It was not a case where the doctrine of necessitu was required to be invoked. It may be that the counsel appearing on behalf of the judicial officers did not object to the learned judges who were members of the Committee to hear the matter. 82. There is no quarrel with the proposition that the allegation of bias may be capable of being
waived. [See G. Sarana (Dr.) v. University of Lucknow22.J However, in this case, bias as regards the subject-matter on the part of the members of the Committee who heard the writ
petition is apparent on the face of the record. 85. The writ petitioners, thus, might have waived their right to raise a contention as regards bias on the part of the Hon’ble judges but the same would not mean that this Court would ignore such a vital fact. It was clearly a case where the Hon’ble judges should have recused themselves from hearing the matter. It was for them to remind themselves that justice is not onlu done but manifestly seen to be done.”

In Pinochet, In re [1999] UKHL 1; [2000] 1 AC 119; [1999] 1 All ER 577; [1999] 2 WLR 272, the House of Lords in appeal held, “ The fundamental principle is that a man may not
be a Judge in his own cause...In such a case, once it is shown that the Judge is himself a party to the cause , or has a relevant interest in its subject-matter, he is disqualified without any
investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest is sufficient to disqualify him unless he has made sufficient disclosure....”

In P.D. Dinakaran (1 ) v. judges Inquiry Committee, (2011) 8 SCC this HonT^le court further held ,  In India, the courts have, by and large, applied the “ real likelihood test” for deciding
whether a particular decision of the judicial or quasi-judicial body is vitiated due to bias. In Manak Lai v. Dr. Prem Chand Singhvi_it was observed: (AIR p. 429, para 4) “ 5. ... every member of a tribunal that [sits to] try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.

n this case clearly the CBI FIR makes allegations that the entire conspiracy and planning was to bribe and influence the apex court judges who are dealing with the case of Prasad Education Trust. This bench was clearly headed by Chief Justice Dipak Misra. In these circumstances, he was an interested party and could not have dealt with this case either on the judicial or even on
the administrative side by way of assigning a particular bench to hear this case.

Further against all principles of natural justice and in a clear case of conflict of interest, the Chief Justice Dipak Misra constituted a three judge Bench to hear Ms. Kamini Jaiswal’s related petition, with Justice Khanwilkar as a part of the Bench. This despite the fact that Justice Khanwilkar was part of every hearing in the Prasad Education Trust matter. The judgment of this
Bench in Kamini Jaiswal petition says that the Chief Justice can still exercise his power as master of the roster and constitute benches even when he is involved in the case. It further says that asking a judge to recuse from a case amounts to contempt of court. It is submitted that these two propositions are both in violation of settled law by this court by larger benches
and - have been given by a bench where one of the members had a conflict of interest and had been expressly asked to recuse himself. Therefore, this order is clearly in violation of the principles of natural justice and  therefore, void and can be ignored by any court of authority

The law on recusal has been settled in a large number of cases, both in India as well as abroad. The principle in all these cases is clear, that no judicial or administrative
authority can deal with a case, even if it had a remote connection with that case. In this case the connection was direct, since CJAR’s petition sought an independent investigation into a matter, where the allegation was that attempt was made to procure a favourable order in a  petition regarding recognition of medical college which case was being heard by a bench which included the Chief Justice of India and Justice Khanwilkar. The apparent acts of Justice Dipak Misra, in hearing this case, asserting authority by assigning benches to hear this case, preventing or trying to prevent a Constitution bench of 5 senior most judges to hear this case and fixing it before a bench of junior judges, constitute a gross violation of natural justice, abuse of authority and gross misconduct.

Charge 3 -

That the Chief Justice Dipak Misra appears to have antedated an administrative order dated 6th November 2017 which amounts to forgery/fabrication That on 9th November 2017 while the hearing of a writ petition no. 176/ 2017, Kamini Jaiswal v. UOI & Anr was in progress before Court no. 2, the registrar brought an administrative note to the court which was thereafter
ordered to be annexed to the order passed by the court on 9th November 2017

This note is purportedly dated 6th November 2017 but appears to be antedated and appears to have been prepared and issued on 9th November 2017 itself. This seems to be the case from the following facts and circumstances:

i. That at the end cf para one of the note it is stated that: "Your Lordship has been pleased to direct that in future whenever such directions are issued, the matter(s) be listed before the Bench presided over by Hon’ble Chief Justice of India at 3p.m. or at such time as may be indicated by Your Lordship, on the same day or before such Bench as directed by the Hon’ble Chief Justice of India.

If there were already pre-existing orders of the Chief Justice of India on this issue, what was the occasion for the Chief Justice to call for, and for the registrar to put up a fresh note on the 6th November 2017?

ii. If this note was indeed issued on 6th November 2017, why was it not communicated earlier to Court no. 2 which was to hear the urgent mentionings while the Chief Justice of India was
' sitting in the Constitution Bench? Why was it only communicated in a hurry while the hearing of Ms. Kamini Jaiswal’s petition was in progress?

iii. The Constitution Bench presided over by the Chief Justice of India in a highly unusual manner, arose at noon on 9th November 2017 after Court no. 2 had ordered Ms. Kamini Jaiswal’s petition to be taken up at 12:45p.m. in Court no. 2. The Chief Justice thereafter reportedly told lawyers when the bench resumed at 2p.m. that he had risen early prior to lunch to attend to some family matters.

It appears from the above-mentioned circumstances that this administrative note dated 6th November 2017 was in fact hurriedly prepared between noon of 9th November 2017 when the Constitution Bench was made to rise and 12:45p.m . when Court no. 2 was to take up Ms. Kamini  Jaiswal’s matter and has been apparently antedated to 6th November 2017. Antedating of a document of this kind is a serious act of forgery and fabrication and amounts to serious misconduct.

Charge 4 -
That Chief Justice Dipak Misra acquired land while he was an advocate, bjr giving an affidavit that was found to be false and despite the orders of the ADM canceling the
allotment in 1985, surrendered the said land only in 2012 after he was elevated to the Supreme Court

That in the year 1999, two years after being enrolled as an advocate in Orissa, Justice Dipak Misra had applied for and was allotted 2 acres of agricultural land from the
government , purportedly for raising a fodder farm. For seeking this allotment he gave a false affidavit that neither he nor his family owns any agricultural land.
However in an earlier lease application for this land he had stated that his family owns 10 acres of land

Thereafter in an enquiry bv the Additional District Magistrate (ADM), Cuttak, it was found that this allotment was illegal and ordered to be cancelled. The ADM ’s order held
“ I am satisfied that the lessee has obtained lease by misrepresentation and fraud.

That despite cancellation of allotment it was learnt that Justice Dipak Misra did not surrender possession of plot for many years after and the record of rights was corrected only on 6.01.2012 , a year after he was elevated to the Supreme Court in 2011. It is noteworthy that in this case and other similar illegal land allotments, the Orissa High Court had ordered a CBI investigation. The
CBI had thereafter submitted a status report in 2013 but it appears there is no final report prepared by CBI and the matter is still pending investigation. The PIL in which this order directing CBI enquiry was passed , has apparently been listed before the bench of Justice Inderjit Manahty for years and has been adjourned many times.
In the CBI status report it is stated: “ In this case, Shri Dipak Mishra s/ o Raghunath Mishra, Vill-Tulsipur, P.S. - Lalbagh, Cuttack & permanent R/ o Banpur, Puri was sanctioned 2
acres of land by the then Tahsildar Mr. J. A. Khan on 30.11.1979 at Plot No. 32 Khata no. 330 , Mouja - Bidyadharpur.
The allotment order of Tahasildar was cancelled by ADM cuttack vide Order 11.02.1985. But record was corrected only on 6.01.12 as per the order passed by the Tahasildar, Cuttack only
after 6.01.2012.”

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 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

This case of Chief Justice Dipak Misra’s alleged land allotment fraud , relates to a period when he was still a lawyer. It is important here to point out that in the case of Justice Soumitra Sen of the Calcutta High Court, the in-house inquiry committee held him guilty of misappropriation of large sums of money which he received in his capacity as receiver appointed by the High
Court of Calcutta, when he was still a lawyer. Though he had paid back the money, the in-house committee had noted in its February 6, 2008 report to the Chief Justice
of India that "mere monetary recompense under the compulsion of judicial order does not obliterate breach of trust and misappropriation of receiver's funds for his personal gain". The in-house committee had concluded: The conduct of Soumitra Sen had brought disrepute to the high judicial office and dishonour to the institution of judiciary, undermining the faith and confidence reposed by the public in the administration of justice.” Justice Soumitra Sen gave in his resignation after the Rajya Sabha passed the motion for his impeachment and before it was placed before the Lok Sabha.

Charge 5 -
That Chief Justice Dipak Misra has abused his administrative authority as master of roster to arbitrarily assign individual cases of particular advocates in important politically sensitive cases, to select judges in order to achieve a predetermined outcome

It is a principle that has been settled by judicial pronouncements and conventions of the HonTDle Supreme Court that the Chief Justice of India is the master of the roster and has the authority to allocate cases to different benches/judges of the Supreme Court. Adherence to this principle is essential to maintain judicial discipline and decorum and for the proper and efficient functioning of the Court. The power to exercise such authority cannot be used in such a manner as to assert any superior authority by the Chief Justice. It is a well settled principle of jurisprudence that the Chief Justice is only the first among equals.

Though the Chief Justice of India is the master of roster and has the administrative authority to determine benches to hear cases, it does not mean that such power can be exercised in an arbitrary or malafide manner or to the exclusion of senior judges in sensitive cases. This power is reposed with the Chief Justice of India and must be exercised by him in good faith. The main object of such power of master of roster being with the Chief Justice is that there must be some fair, transparent and rational way of deciding how cases will be listed before
particular courts and to ensure ease of business. The power of the Chief Justice in assigning cases can only mean that benches would be assigned by subject matter, and if there is more than one bench dealing with a particular matter, cases would be assigned by random computerised allocation. Any other way of construing the powers of the Chief Justice as master of roster would
lead to a situation where the Chief Justice himself controls the entire court rather than be . the first among equals.

In a stark departure from this practice and raising questions about the Chief Justice of India’s accountability, there have been various instances where Chief Justice Dipak Misra has abused his authority as master of roster and exercised this power in a malafide and arbitrary mannei;. From the instances of cases given in the table below is appears that the Chief Justice has
directed the registry to place before him cases Filed by particular advocates or PILs involving the government and other matters of importance, for individual allocation
to particular judges, which is arbitrary. If such allocation of important PIL’s is made only to particular favoured benches, then such allocation becomes malafide as well
since it is done to achieve a particular outcome.  There is a clear pattern visible in the manner in which the Chief Justice of India has allocated and in many cases withdrawn cases from particular benches and placed them before other particular judges, which shows that this authority is being exercised in an arbitrary and malafide manner. This is a dangerous pattern of the
Chief Justice abusing his power as the master of roster in selectively assigning important and politically sensitive cases to particular benches of junior judges of his choice, in an arbitrary manner, without any rational basis. This would have a serious long term impact on democracy and the future of our republic. It is also clear that the assignment of such cases to certain junior judges has been for achieving a particular result, which in most cases can be seen to be in tune with the wishes of the government.

On the 12th of January7 2018, four of the senior most Judges of the Honhle Supreme Court, brought to the notice of the public this very malady in the administrative functioning of the Supreme Court.

The letter released to the media by the four senior most judges states: “ ..with great anguish and concern that we... highlight certain judicial orders passed by this court which has adversely affected the overall functioning of the justice delivery system and the independence of the high courts, besides impacting the administrative functioning of the office of Hon’ble the Chief Justice of India.” The convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different members/ benches of the Court is a convention devised for a disciplined and efficient transaction of business of the Court but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues, There have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of this Court selective to the benches “ of their preference” without any rationale basis for such assignment. This must be guarded against at all costs.”

The judges went on to say that,  we are not mentioning details only to avoid embarrassing the institution but note that such departures havd already damaged the image of
the institution to some extent

There are numerous instances of, such abuse of the power of the master of roster by Chief Justice Dipak Misra. A few of the cases, other than the Memorandum of Procedure matter already mentioned in the letter of the four judges, where such abuse has taken place, are listed in the table below.

A few important instances of abuse of the power of master of roster by Chief Justice Dipak Misra W.P. (Criminal) 169 of 2017 Campaign for Judicial
Accountability and Reforms v UOI & Anr. (Writ Petition seeking SIT investigation into allegations in CBI FIR relating to conspiracy to bribe in order to obtain a favourable judgment in the case of a Medical College that was pending before the Honhle Supreme)

i. On 8.11.2017 after the writ petition was numbered , this case was mentioned for urgent listing before court number 2 (since this is the court where mentionings for urgent listing were
being taken up and also because it would not be appropriate for the Chief Justice to deal with this matter in his judicial and administrative capacity in view of the fact that he had dealt
with the case of the medical college throughout on the judicial side). On mentioning, J. Chelameswar’s bench ordered it to be listed before him on Friday, 10th November. However
during lunch the petitioner’s counsel was informed by the Registry that in the light of an order by the Chief Justice this case is assigned to another bench and therefore would be
coming up on Friday not before Court 2 but before the other bench. On 10.11,2017, the matter was heard by a bench headed by Justice Sikri. The same afternoon the matter was
suddenly heard by a Constitution Bench headed by Chief Justice Dipak Misra and junior judges hand picked by him. This was then referred to a bench headed by Justice R. K.
Agarwarl. Judgement of 1.12.2017, dismissed the Writ Petition imposing a cost of 25 lakhs on the petitioner. Review petition Filed on 4.01.2018 and has not yet been listed.

Writ Petition (Civil) No. 1088/ 2017 in the matter of Common Cause v Union of India. (Involving a challenge to the appointment of the Special Director CBI)
This matter was listed on 13.11.2017 when this Hon'ble Court comprising of Hon'ble Mr. Justice Ranjan Gogoi and Hon'ble Mr. Justice Navin Sinha passed the following order: “ List
the matter on Friday i.e. 17th November, 2017 before a Bench without Hon'ble Mr. Justice Navin Sinha.” On 17th November 2017 matter was listed before Hon 'ble Mr. Justice R. K
Agrawal and Hon'ble Mr. Justice Abhay Manohar Sapre in complete contravention of Supreme Court Handbook on Practice and Procedure. On 17.11.2017 Hon bile Mr. Justice
Navin Sinha was not sitting with Hon’ble Mr. Justice Gogoi and accordingly matter ought to have been listed before the Bench presided by Hon’ble Mr. Justice Gogoi

Civil Appeal No.10660/ 2010 Centre for Public  Interest Litigation v Union of India. (The 2G case) iii. This matter came up before Court Number 2 on 01.11.2017 and was to come up on 06.11.2017 before the said Court. However it was deleted and upon mentioning ordered for listing before appropriate Bench as per roster. The matter was thereafter listed before Court No.

on 13.11.2017 and upon recusal by Hon 'ble Mr. Justice A. M Khanwilkar and Hon’ble Mr. D.Y. Chandrachud, the matter was placed before the Bench presided by Hon 'ble Mr. Justice Arun
Mishra on 17.11.2017, even though other Benches of senior Hon'ble Judges were available

Writ Petition (Civil) 20/2018 Bandhuraj Sambhaji Lone Petitioner Versus Union of India with Writ Petition (Civil) 1,9 of 2018 Tehseen Poonawalla v Union of India (The Judge Loya death investigation case)

This matter upon being mentioned before the Chief Justice on 11.01.2018 was surprisingly ordered to be listed before Court No. 10 on 12.01.2018 and 16.01.2018. Subsequently the
matter was mentioned perhaps without notice to the others on 19.01.2018 before the Hon'ble Chief Justice’s Bench and it was ordered that the same be listed before “ appropriate Bench as
per roster.” It is submitted that as on date the only published information by the Registry of the Supreme Court was “ Supreme court of India list of revised subject category and it does
not appear that any other Court Roster was published or if it was at all in existence. PILs were being heard by several courts in this Hon'ble Court. Yet, on 22nd January 2018 the matter was listed before Court No. 1 which heard the matter.

5. Special Leave to Appeal (Criminal) No 8937 of 2017 Dr. Subramanian Swamy v Delhi Police through Commissioner of Police (Involving the M.P. Shashi Tharoor)
v. The matter was listed before Court No. 10 on 29.01.2018 and adjourned to satisfy on maintainability. Subsequently on 23.02.2018 the Bench issued notice keeping the question of
maintainability open

6. Special Leave to Appeal (Criminal) No. 1836 of 2018 Rohini Singh v State of Gujarat
This matter involving Shri. Jav Shah, son of Shri. Amit Shah was also listed before Court No. 1 while several other courts have been authorized to hear criminal matters under the Roster

Writ Petition (Civil) No. 494 of 2012 (Aadhar case) vii. The matter was heard initially by a Bench presided by Honhle Mr. Justice Chelameswar. Subsequently it was referred to a larger Bench
which was constituted on 18.07.2017 by Honhle Chief Justice Khehar and which included Honhie Mr. Justice Chelameswar and Honhle Mr. Justice Bobde amongst others. The
question whether privacy is a fundamental right arising out of the same was referred to a Bench of 9 Honhle Judge which included the above Honhle Judges. However subsequently
the Bench came to be reconstituted and does not comprise of Honhle Justice Chelameswar, Honhle Justice Bobde and Honhle Justice Nazeer.

SLP(C ) No. 033869 - / 2017 Energy Watchdog V . K Union of India (ONGC) Challenge to the appointment of BJP Spokesperson Sambit Patra as Independent Director, ONGC and the appointment of tainted officer Shashi Shankar as CMD, ONGC viii. Matter listed before Justice R.K. Aggarwal and Justice Manohar Sapre on 04.01.2018 when they adjourned the matter to 08.01.2018. On 08.01.2018, one of the judges recused. The matter was thereafter listed before Justice Sikri and Bhushan in Court 6 on 5.03.20 SLP(C) 28662-28663/ 2017 R.P. Luthra v. Union of India & Anr. (The petition which sought an explanation from the Centre for the delay in finalizing the memorandum of procedure (MOP) for appointment of judges to the Supreme Court and
High Courts and which also questioned continuing appointments even when the MOP had not been finalised. On 27.10.2017, the bench of Justices Goel and Lalit heard the matter and scheduled the next hearing for November 14. However, on 8.11.2017, the case was listed before a new Bench of CJI Misra, Justices A.K. Sikri and Amitava Roy. The three
judges bench headed by CJI recalled the 27 October order.

The three Judge Bench of the Supreme Court in Pune Municipal Corp. v. Harakchand Misirimal Solanki 2014(3)SCC183 had held that unless the compensation amount is deposited in the concerned Court it would not be treated paid in terms of Section 24(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, Act and therefore, nondeposit of such compensation would result in a lapse of acquisition proceeding under Section 24(2) of the Act. The correctness of this law was doubted by a
two judge bench of the Supreme Court headed by Justice Arun Mishra vide dated 07.12.2017 in Civil Appeal No. 20982 of 2017, Indore Development Authority v. Shailendra (Dead) Through LRs, and therefore, the same was referred to the larger bench. In Indore Development Authority, a three judge bench headed by Justice Arun Mishra by a majority of 2:1 vide order dated 08.02.2018 held that the judgment in Pune Municipal Corporation was per incuriam. One of three judges was of the view that a three judge bench cannot hold judgement of another
three judge bench per incuriam. Meanwhile, a similar land acquisition matter came up for consideration before another three judge bench headed by Justice Madan B. Lokur on 21.02.2018.
This three judge bench, while considering the submission made by the counsels appearing for the farmers, whether a bench of three Learned Judges could have held decision rendered by another bench of three Learned Judges as per incuriam , without referring it to a larger bench and therefore whether this matter should be referred to a larger bench, vide
order dated 21.02.2018, made a request to the concerned benches of the Supreme Court dealing with the similar matters to defer the hearing until a decision is rendered one way or the other and listed the matter on 7.03.2018 to hear the State. On 22.02.2018 that is the very next day 2 similar matters were listed before two different two judge benches of the Supreme Court, headed by Justice Arun Mishra and Justice Goel respectively who were part of the judgement holding Pune Municipal per incuriam. Both the two judge benches of the Supreme Court instead of simply adjourning the matter referred their respective cases to the Chief Justice of India to list them before the appropriate bench. The Chief Justice of India without waiting for
the hearing before Justice Lokur on 7.03.2018, listed the matters refereed by two other benches on 06.03.2018 before a 5 judge bench presided by himself, when an Order was passed that this bench shall consider all the issues including the correctness of the decision rendered in Pune Municipal Corporation as well as the judgment rendered in Indore Development Authority.

CITIZENS FOR JUSTICE vs. THE STATE OF GUJARAT SLP(Crl) No. 006754 - 006756 / 2011 came to be listed before the bench presided by Justice Arun Mishra. The aforesaid SLP came to be withdrawn.

Also the new roster system is highly questionable as all the important political matters/PIL’s/Writ Petitions/ Election matters are exclusively heard by the Chief Justice of India whereas rest other matters 'vi/ can be heard by other courts.

These above-mentioned charges against the Chief Justice of India, have brought the judiciary into disrepute. In view of these serious charges and explanatory note on
each charge, it is apparent that there is sufficient prima facie evidence for initiation of impeachment proceedings against Mr. Chief Justice Dipak Misra.

Reality views by sm -

Sunday,April 22, 2018

Tags – Notice Impeachment Chief Justice Dipak Misra


rudraprayaga May 02, 2018  

Read only the head lines. An enquiry should have been done by a reliable commission and done the required.