On Friday, November 10, the Supreme Court witnessed acrimonious scenes when a Constitution bench led by Chief Justice of India Dipak Misra nullified the order of a smaller bench and lawyer Prashant Bhushan stormed out of the court, alleging that he was not being allowed to argue his case.
The genesis of these chaotic developments lay in two similar petitions moved last week, one by Bhushan and the other by advocate Kamini Jaiswal. Both sought an independent, court-monitored inquiry into a recent medical college scam that is under the scrunity of the Central Bureau of Investigation.
On September 19, the CBI lodged a First Information Report about the scam that named, among others, IM Quddusi, a retired judge of the Odisha High Court. The CBI maintained that several members of the Lucknow-based Prasad Education Trust and a middleman entered into a conspiracy with the former judge to manipulate proceedings in the Supreme Court and obtain orders to permit the college to admit students for the 2017-’18 academic year.
Just a day before the FIR was filed, the Prasad Education Trust case had been wrapped up by the Supreme Court. Citing a September 1 order relating to Venkateshwara University in Uttar Pradesh, the bench headed by Justice Misra said permission for the college would not be renewed for 2017-’18. The “Medical Council of India shall send the inspecting team to the Institution as per the schedule for consideration of grant of letter of permission for the academic year 2018-2019,” the bench stated. “The bank guarantee which has been deposited shall not be encashed and be kept alive.”
Question of powers
On Thursday, a bench led by Justice J Chelameswar had directed that a five-judge Constitution bench be formed to deal with Jaiswal’s petition. The order said that the bench should consist of the five senior-most judges of the Supreme Court. But on Friday, this order was nullified by a fresh Constitution bench. The court asserted that the Chief Justice alone had the powers to decide on the composition of a bench and that Thursday’s order was bad in law. Friday’s Constitution bench was formed after a two-judge bench led by Justice AK Sikri placed Bhushan’s petition before the Chief Justice for appropriate orders.
The case filed by Jaiswal will now be heard by a three-judge bench on Monday.
Tracing the various petitions filed by the Prasad Education Trust shows how it sought to manipulate judicial proceedings, something the CBI has pointed to in its FIR lodged in September.
The Medical Council of India is the statutory body entrusted with ensuring that medical colleges in India adhere to minimal standards. The council is no stranger to controversy. In 2010, for instance, the council was dissolved after its president Ketan Desai was booked under the Prevention of Corruption Act and was arrested by the CBI. The council was reconstituted in 2013, but continued to face allegations of misconduct. In May 2016, the Supreme Court formed an oversight committee headed by former Chief Justice of India RM Lodha, which was given the responsibility of ensuring that the council functioned properly. The council was asked to seek the oversight committee’s approval for almost all of its decisions.
The case pertaining to the Prasad Education Trust dates back to the weeks immediately after the Lodha committee was formed. In 2015, the trust applied for permission to start a medical college. After considering the applications, the Medical Council of India inspected the infrastructure of the proposed college but found some deficiencies. In June 2016, the council denied the college permission to open.
The trust took the matter to the oversight committee, following which the Union Ministry of Health issued a conditional letter of permission in August last year. The college was allowed to admit students on the condition that it would rectify all the deficiencies pointed out by the council and then be inspected again later that year. But when the council inspected the college a second time, it again found deficiencies and denied the institution permission to admit students for the academic years 2017-’18 and 2018-’19.
Based on the council’s report, the health ministry also ordered that the Rs 2 crore bank guarantee the college had provided be encashed, as per rules. The trust then moved the Supreme Court. A bench headed by Chief Justice Misra directed a fresh inspection. But the council came back with the same findings and reiterated its ban on admissions. Once again, the trust challenged this.
In the meantime, a petition the trust had moved against being de-listed from medical admissions in the Allahabad High Court came up for hearing on August 25. It claimed that counselling for medical seats was due on August 27 to inform candidates who had been successful in the entrance exams about which institutions they could seek admission to, given their rank. If the council’s order was not stayed, the trust said, it would jeopardise the institution if the courts decided in its favour at a later stage. The trust maintained if the college was not part of the counselling process on August 27, it would lose the whole year. The trust also maintained that the council had denied permission despite the oversight committee not finding any major deficiencies in its working.
In its order, the Allahabad High Court said:
“Regard being had to the aforesaid submissions, we hereby direct to list this matter on 31.08.2017, in the meanwhile, the petitioners’ college shall not be delisted from the list of colleges notified for counselling till the next date of listing i.e. 31.August 2017. Further the encashment of Bank Guarantee is also stayed till the next date of listing. It is clarified that on the basis of this order the petitioners shall have no right to claim any admission of the students.”
When the matter eventually came up before a bench headed by Chief Justice Dipak Misra on August 29, the trust’s lawyer Mukul Rohatgi gave an undertaking that the institution would not claim any benefit from the order passed by the High Court, except that the Medical Council of India should not encash the bank guarantee of Rs 2 crores.
Passing the order, the bench said:
“We appreciate the fair submission of Mr. Rohatgi and direct that the bank guarantee shall not be encashed. As the present order is passed by us, the writ petition filed before the High Court shall be deemed to have been disposed of. Liberty is granted to the respondent to approach this Court under Article 32 of the Constitution of India.
It was while these petitions were being heard that the CBI seems to have initiated a preliminary investigation into what it believed was a big bribery scam. On September 19, it filed an FIR, naming former Odisha High Court judge Quddusi. The report said that members of the trust, the former judge and a few others engaged a middleman named Biswanath Agarwala to obtain favourable court orders in return for a hefty bribe. The CBI arrested the accused when, it alleged, they were about to make the bribe payments.
Meanwhile, as all this was happening in the case involving the Prasad Education Trust, a similar matter with a trust named GCRB Memorial Trust was going back and forth between the Supreme Court and the Allahabad High Court. On August 28, the GCRB trust wanted to withdraw a petition it had filed against being denied permission to admit students before the Supreme Court. The court allowed this and gave the go ahead for the trust to approach the High Court, but with a direction that the High Court should not pass any interim orders in relation to admissions for 2017-’2018.
Rather than issuing an interim order, the High Court decided to take up the matter for final disposal. In its judgement on September 1, the High Court passed a final order allowing the college to admit students for the academic year. The Medical Council of India challenged this before the Supreme Court bench headed by Chief Justice Misra, which on September 6 set the High Court judgement aside, stating that it would scrutinise the reasons for the High Court order. The Times of India reported on Friday morning, the day when the acrimonious scenes in the Supreme Court transpired in the afternoon, that the High Court order annoyed Misra and that he was contemplating “structured, stringent action” against the erring judges if some allegations were prima facie true.
In many of these cases involving medical colleges, the Medical Council of India had denied permission to operate, but the oversight committee had then suggested clearance. Some of these colleges did manage to get a favourable order from the Supreme Court in early September.