CJI Ranjan Gogoi writes to PM for removal for Allahabad HC judge: Case reveals rot in judiciary; mere touch-up won't cure epidemic

Shishir Tripathi
“The judge is not a knight errant” quoted former CJI Dipak Misra while striking down an order passed by Justice SN Shukla; who now faces impending ‘impeachment’. Will judiciary take its former captain's word seriously?

On 23 November, 2017, a Supreme Court bench led by then Chief Justice of India (CJI) Dipak Misra struck down an order passed by the Lucknow Bench of the High Court of Allahabad.

The order passed by Justice SN Shukla of the Lucknow Bench of the High Court of Allahabad, allowed a Lucknow-based medical college named GCRG Institute of Medical Science to take fresh admissions; which was in total disregard of Supreme Court directives and the order of Medical Council of India (MCI) €" erstwhile chief regulator of medical colleges in India.

While striking down the order passed by Shukla, the Supreme Court bench made some serious observations that hold a mirror to the judiciary, especially at the time when it is facing a serious integrity crisis.

The bench observed: "One cannot but say that the adjudication by the Division Bench tantamounts to a state as if they dragged themselves to the realm of 'willing suspension of disbelief'. Possibly, they assumed that they could do what they intended to do. A Judge cannot think in terms of 'what pleases the Prince has the force of law'. Frankly speaking, the law does not allow so, for law has to be observed by requisite respect for the law. In this context, we may note the eloquent statement of Benjamin Cardozo who said: 'The judge is not a knight errant, roaming at will in pursuit of his own ideal of beauty and goodness'."

Exactly 19 months after this judgment, now the Chief Justice of India (CJI) Ranjan Gogoi has written to Prime Minister Narendra Modi to initiate a motion of removal of Shukla. Earlier in January 2018, Misra had asked Shukla to resign or take a voluntary retirement following an adverse in-house probe committee report against him.

After Shukla denied to resign or take voluntary retirement, Misra had written to the government to initiate proceedings to remove Shukla.

In August 2018, in a response to a question raised by Congress Member of Parliament (MP) Shashi Tharoor, then Minister of State for law PP Chaudhary had confirmed that the government has received communication in this regard.

A three-judge in-house committee, comprising of then Madras High Court Chief Justice Indira Banerjee, then Sikkim High Court Chief Justice SK Agnihotri and then Madhya Pradesh High Court judge Justice PK Jaiswal concluded that there was substantial evidence against Shukla to prove the allegations of corruption complaint against him.

The allegations against Shukla pertains to a case where Lucknow-based GCRG Institute of Medical Science was allowed to admit 150 students for the 2017-18 session in spite of the apex court direction that the high court shall not pass any interim order pertaining to the admission for the academic year 2017-2018.

Now, with CJI Gogoi also seeking his removal, Shukla's departure is imminent. The only question remains is whether it will be voluntarily or a new chapter will be added in India's judicial history as till now no judge of the higher judiciary has been removed.

A look at the chain of events that led to this crisis is necessary to understand how indiscretion on part of a high court judge led to this totally undesirable situation. Also, this case is not just about an erring judge but throws floodlights on the rot in the system.

In 2016, 32 new medical colleges failed inspections conducted by the Medical Council of India (MCI). GCRG Institute of Medical Science was among them. They moved the Supreme Court, which appointed three-member Oversight Committee (OC) headed by former CJI ML Lodha. The Oversight Committee allowed them to admit the first batch of students on a condition that if they fail in future inspections by MCI, they will be barred from admitting students for next batch and will lose their 2 crore security deposit.

When MCI conducted its inspection, apart from two colleges, all 30 colleges failed to pass the inspection test. They again approached the Oversight Committee, which heard the matter and asked the Union Health Ministry to grant permission to 23 colleges out of 30 that had failed the inspection test, to admit new batch of students. GCRG Institute of Medical Science was one among these 23 colleges.

This brought the Union Ministry of Health in direct confrontation with the Oversight Committee as the Union Health Ministry rejected the recommendation of the Oversight Committee. Following this, the colleges facing rejection moved the Supreme Court which asked the Union Health Ministry to review the matter.

However, the Union Ministry of Health maintained its stance. Not able to get a favourable response from the Union Health Ministry, GCRG Institute of Medical Science again made an appeal to the Supreme Court against the Ministry's decision of not allowing it to make fresh admission.

However, in a move that hints at the beginning of this whole scam, GCRG Institute of Medical Science decided to withdraw its petition from the Supreme Court during the hearing and decided to seek 'relief' from Allahabad High Court. While the Supreme Court allowed GCRG Institute of Medical Science to withdraw the case, it categorically stated that the high court will not pass any order allowing any fresh admission for 2017-2018 batch.

However, as expected GCRG Institute of Medical Science started getting favourable judgments.

First, on 1 September, 2017, a two-judge bench that included Shukla directed MCI and the Uttar Pradesh government to allow GCRG Institute of Medical Science fresh admissions. And, then in a strange turn of events, on 4 September, Shukla made "suo motu" correction to his earlier order, further facilitating the admission process for the GCRG Institute of Medical Science.

Armed with this order GCRG Institute of Medical Science approached the Directorate General Medical Education (DGME), Uttar Pradesh. DGME found the order in contravention with the Supreme Court order that had fixed the final date of all admission to be 31 August, whereas the revised order made it 5 September. Also, the Supreme Court had clearly barred the high court from passing any order in this regard.

DGME send the revised order to MCI, and MCI in turn moved the Supreme Court which quashed the high court order and slapped a penalty of Rs 25 lakh on GCRG Institute of Medical Science. It also directed the institute to pay Rs 10 lakh as compensation to admitted students, apart from refunding their entire fees.

Shukla is not the first judge to be facing impending action in this alleged "medical scam". This medical scam has loomed large at the higher judiciary in the last two years.

The backdrop of the press conference addressed by the four senior-most judges of Supreme Court on 12 January, 2017, was also related in more than one way to this medical scam.

Two days before the famous "presser" by the four senior-most judges of the Supreme Court, a high voltage drama was witnessed in the Supreme Court. At the surface level, it looked like an ego tussle between the Milords. The showdown was over the question of who is the 'master of the roster' and has the prerogative to constitute benches. It was a question that came up when a two-judge bench headed by Justice (now retired) J Chelameswar passed an order to set up a larger bench to hear a petition.

However, it was much more than a contestation over the issue of 'master of the roster'.

It was a petition that put in motion a series of unprecedented events.

And the petition in question was one that sought a probe by a special investigation team (SIT) into allegations of corruption involving a medical college in Lucknow and a retired Orissa High Court judge IM Quddusi. In this alleged scam, probed by the Central Bureau of Investigation (CBI), former members of the higher judiciary allegedly took bribes to manipulate court orders in favour of medical colleges that had failed to get official registration from the MCI.

The CBI had in September 2017 arrested five persons, including Quddusi on a corruption charge.

The Campaign for Judicial Accountability and Reforms (CJAR) had filed a petition seeking a court-monitored probe in this matter. On 8 November, the matter was mentioned in front of a bench of Chelameswar seeking the listing of the matter. It was then listed for 10 November. However, on 8 November itself, the Supreme Court registry informed Prashant Bhushan that the CJI (Misra) had placed the petition before a bench of justices AK Sikri and Ashok Bhushan.

A day later, on 9 November, advocate Kamini Jaiswal also moved a similar petition which was mentioned before Chelameswar. A bench comprising justices Chelameswar and Abdul Nazeer passed an order directing its listing on 13 November before a Constitution Bench of the five senior-most judges.

When Prashant's petition came up before the bench comprising justices Sikri and Ashok on 10 November, the stage for the big drama was set. Justice Sikri expressed his displeasure over the filing of the second petition "since it showed a lack of confidence in this bench".

Prashant then requested the bench that his matter too should be tagged with Jaiswal's petition. The bench, however, decided to refer the matter to the CJI for passing appropriate orders. The same day, meanwhile, a Constitution Bench comprising the CJI and justices RK Agarwal, Arun Mishra, Amitava Roy, and AM Khanwilkar was formed to hear the matter (two of the original seven members had recused themselves).

Following heated arguments between the bench and the bar, the bench passed an order stating in clear terms that neither a two-judge bench nor a three-judge bench can direct the CJI to constitute a specific bench.

The high-decibel debate that followed was centered around questions like whether or not petitioners were resorting to 'forum shopping' and 'bench hunting', and, whether or not the CJI, by declaring himself 'master of the court', asserted more power than what is constitutionally mandated and also over the wisdom of Chelameswar ordering to form the Constitution Bench.

However, in the shadow of all these administrative questions, the most important question that got sidelined was: is judiciary actually being 'remote controlled' by certain middleman and racketeers who are in the business of getting favourable judgments for their clients.

"The faith of the common man in the country is shaken to the core by such shocking and outrageous orders as the kind that have been passed by the single judge. 'Something is rotten in the State of Denmark', said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court, as this case illustrates," observed a bench of justices Markandey Katju and Gyan Sudha Misra in 2010, while passing an order that indicted a judge of the High Court of Allahabad for passing orders on "extraneous considerations".

The case of Quddusi and Shukla is sign of this rot, that has penetrated deep into the judiciary. This sinister nexus of 'white collar' racketeers and middleman has penetrated deep into the corridors of the judiciary. And, this rot is leading to a serious epidemic that requires serious overhauling, not just a customary touch-up.

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