Conspiracy To Frame CJI - The 'Ifs And Buts' In Lawyer Utsav Bains' Story
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"If the (sexual harassment) allegations are proved, this (lawyer Utsav Bains' claim of a larger conspiracy to force the Chief Justice of India to step down) won't be a defence", Justice Arun Mishra had stated on April 25.With the Supreme Court in-house committee giving a clean chit to Chief Justice Ranjan Gogoi in the sexual harassment case levelled by a former court employee, all eyes would...
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"If the (sexual harassment) allegations are proved, this (lawyer Utsav Bains' claim of a larger conspiracy to force the Chief Justice of India to step down) won't be a defence", Justice Arun Mishra had stated on April 25.
With the Supreme Court in-house committee giving a clean chit to Chief Justice Ranjan Gogoi in the sexual harassment case levelled by a former court employee, all eyes would now be on Justice A. K. Patnaik who as of last week has commenced the task of examining Bains' contentions (which Senior Counsel Indira Jaising had called a defence action against the sexual harassment allegations).
Jolted into action by the evidence adduced by Bains in a sealed cover on April 24 in support of his affidavit, the bench headed by Justice Mishra had immediately convened an in-chamber meeting with the chiefs of the IB, the CBI and the Delhi Police (who are to assist Justice Patnaik in the court-ordered probe). Subsequently, Bains has filed two additional affidavits, both in sealed covers.
The first of Bains' affidavits, and the lone which is available in public domain, avers about Jet Airways' Naresh Goyal's alleged attempt to bribe the CJI through one Romesh Sharma, a "fixer", to get "a favorable order to Jet Airways and to order the Government to waive off its losses". Bains has contended that Sharma and his "cash-for-judgment" aides were already upset with CJ Gogoi for cracking down on their racket on assuming office in October last year. It is his claim that Sharma was introduced to Goyal by United Nations Security Council designated terrorist Dawood Ibrahim who supposedly has invested money in Jet Airways. Bains also mentions that a corporate figure (who he does not name), who had unsuccessfully tried to approach an apex court judge to procure a favourable order in a high-profile case and then also failed in having the matter transferred from the court of said judge, had "ganged up" with Sharma to frame the CJI in a false case of sexual harassment to compel him to resign, post which the other judge on account of whose judgment the corporate figure incurred huge losses would be targeted. He has advanced that in addition to the links between Goyal, Ibrahim, Sharma and the said corporate figure, some "disgruntled employees" and "former employees" of the Supreme Court have also joined forces in the conspiracy.
Ever since he chose to surface, Bains' bonafides have been the backdrop on which successive question-marks have been put- while Ms. Jaising requested Justices Mishra, Rohinton Nariman and Deepak Gupta to investigate his credentials along with his averments , veteran lawyer Prashant Bhushan reportedly suggested that Bains had met with the CJ twice before filing his affidavit. Besides expressing wonderment at how Bains had managed to enter the court premises in a white Jaguar taxi without the SC sticker and park it in the space allotted to the AG, Ms. Jaising had also urged the court to require him to file a sworn affidavit that he is not connected to any of the parties involved in the controversy (to which Bains had asserted in open court that despite rumours that say otherwise, he has no relations with the CJI). Senior Advocate Nina Gupta Bhasin has apparently recounted that on April 22 in the afternoon she had witnessed Bains' taxi being allowed inside the gates after the security guards verified over the phone that Bains was called in by some "sir". "Later that night, the Supreme Court registry notified that his affidavit was listed for hearing the next morning at 10:30 a.m. before a special bench...This was strange as the registry normally does not accept an affidavit without an application," Mr. Bhushan has said.
In court, AG K. K. Venugopal had drawn the bench's attention to certain portions of Bains's affidavit to show what he described as a "significant departure". While in his Facebook post on April 20 at 6.50 PM, he said that he will file an affidavit with evidence of "conspiracy against the CJI by a lobby of disgruntled judges, SC fixers, corporate scamsters and a few corrupt Politicians - All who have meticulously planned the conspiracy to force the CJI to resign as their corrupt works were not going through in SC", the AG indicated that Bains' affidavit filed in the court has no mention of the alleged lobby of disgruntled judges and corrupt politicians.
Countering Bains' claim of privilege in respect of certain communications which he had been reluctant to disclose, the AG had said, "I don't understand how one can give an affidavit, produce half the evidence and say that rest is confidential? And if Your Lordships want his cellphone, [unclear]...(earlier in the day the bench had asked Bains if he had his mobile on him to which Bains had replied that that was his private phone while the others were at his residence)"
Regarding these objections as a personal attack on his character and integrity, when Bains had an outburst in court, terming the AG's "allegations" as "ridiculous", Justice Nariman had pulled him up, sternly observing, "If you have an iota of doubt in the AG, we will throw you out". "Since Justice Nariman said he will throw me out, I shall walk out myself", Bains had retorted, following which Justice Mishra had tried to calm him down. At this episode too, several lawyers voiced their shock at never having seen anyone get away with such conduct with Justice Nariman. Even on Solicitor General Tushar Mehta's insistence, Bains had refused to apologise to the AG, upon which Justice Mishra had tendered the apology on his behalf in good humour. At this episode too, several lawyers voiced their shock at never having seen anyone get away with such conduct with Justice Nariman.
A fact that has stood out, and been echoed from several quarters, is the uncanny timing of Bains' emergence on the scene immediately a day after the ex-SC staffer had circulated a letter of her allegations among the judges on April 19. Within hours of an urgent hearing being convened in the top court on April 20 (which was a Saturday) where the stand adopted was that the sexual harassment claim was a part of a larger plot against the independence of the judiciary, Bains put up the Facebook post saying that on April 4, he was approached with a bribe of Rs. 50 lakhs (which was hiked to 1.5 crores in the same meeting) by one Ajay, who introduced himself as a relative of the former woman employee, to represent her and to hold a press conference specifically at the Press Club of India to frame the CJI in a false case of sexual harassment.
For 15 days after this alleged incident, he says in his post that he enquired into the issue at his own level from "reliable sources" and "every information pointed to a larger conspiracy to make the CJI resign" "the kingpin of which are many Delhi-based SC fixers or those who engage in cash-for-judgments". "After days of getting such credible information", he went to the CJ's residence in the evening of April 19 to inform him of the bribe offer and the conspiracy but was told that CJ was not at his residence at that moment. The following morning (that is, on April 20) his "perception turned out to be true", and "after hours of ponder and soul searching", "(he) decided to speak the truth".
In her press release announcing her decision to withdraw from the proceedings before the in-house enquiry panel, the woman employee has said, "I was repeatedly asked by the committee as to why I had made this complaint of sexual harassment so late (the alleged incidents having transpired on October 10 and 11 last year)" . Even in an interview given to The Caravan, The Wire, Scroll.in and The Leaflet on Wednesday, she is quoted as reiterating that "they (the judges on the panel) were stuck on one question: why had I filed the complaint so late?" .
Along the same line of thought, one could wonder why Bains insisted on assuming the responsibility of the enquiry, gathering evidence at his personal level with his "limited resources", spending over a fortnight on it and risking the preemption of his sombre claim of a larger conspiracy to destabilise the judiciary by framing the head of the institution on fabricated charges of sexual harassment? And this when in his Facebook post, Bains has admitted that in the very first meeting on April 4 itself, 'Ajay' had seemed like a "trained agent", and that he "found the story facts fishy and also (Ajay) couldn't reply to any question about the many loopholes in the story he (Ajay) narrated".
Section 39 of the Cr. P. C. obligates any person aware of the commission or the intention of another to commit any offence relating to illegal gratification (which was punishable under sections 161 to 165A of the IPC before being reenacted in the Prevention of Corruption Act) to forthwith relay the information to the nearest Magistrate or police officer. In fact, the dereliction of this duty attracts liability under section 202 of the IPC, even section 176 of the Penal Code. So when one is statutorily bound to immediately raise an alarm where any 'undue advantage' attempts to change hands by way of consideration for inducing by corrupt or illegal means a public servant to forbear a public duty (as under section 7A of the PC act), isn't an offer of a bribe to a member of the bar to falsely implicate the CJI in a sexual harassment case in a conspiracy to compel him to resign its gravest manifestation and didn't it deserve the earliest intervention of the court?
While a competent officer is empowered to initiate a preliminary enquiry even with "shadowy beginnings and vague rumours" , the scope of such an enquiry has been confined by a Constitution bench of the top court to not encompass a verification of the veracity of the information that motivated it but only to ascertain whether the information reveals any cognizable offence! This inquiry is also expected to be concluded within a week's time. Moreover, whether or not this information is credible or the complaint is reasonable is not a condition precedent for even the registration of a case.
Before Justice Mishra's bench, Bains had justified his abstention from approaching the police as this matter concerns the independence of the judiciary while the police is under state control. "We have seen how the CBI is used as a political tool", he had said. But ultimately, even the court has assigned the IB, the CBI and the Delhi police to look into his claims, albeit under the supervision of a retired Supreme Court judge.
Since Bains came into the picture, there has been much speculation as to why he of all was singled out by those plotting the alleged conspiracy to represent the ex-court assistant (considering that the Supreme Court is bustling with senior lawyers who are champions of causes and even extend their services pro bono, particularly when Bains is not deemed to be a "regular" in the top court. Ms. Jaising had asked him to say he is not a member of the SCBA before Justice Mishra's bench) and how badly they must have wanted him to be willing to offer a hefty fee of Rs. 50 Lakh which shot up to the mammoth sum of 1.5 crores within minutes when it appeared that he was not inclined to do their bidding.
Earlier this year, on February 13, Bains had contended (again on his FB page) that another lawyer (the son of an "honest judge" and an alumnus of UILS, Punjab from which Bains has himself graduated) had tried to entice him with 35 crores (which offer was increased to 45 crores once Bains refused) to dissuade him from placing on record the video-recording of a gangster confessing to having been solicited to murder a witness in the Asaram Bapu sexual assault case, a case chequered with instances galore of mysterious disappearances of witnesses, even fatal attacks on them just outside courts, and death threats to lawyers and investigating officers.
As in the present instance, in the Manipur CM's son's roadrage case also (where Bains had appeared for the victim's family), he had cited danger to his life, taking note of which Justice Ranjan Gogoi had granted him security in 2017.
In the case at hand too, Bains has voiced his fear of being murdered by an "untraceable poison" for lifting the covers off the rich and the powerful. "...In every matter he kept on saying that his life is under threat. I really don't understand this", Senior Supreme Court lawyer Kamini Jaiswal (who Bains had approached in connection with the Manipur case) has reportedly said.
Further, in the course of the hearing on April 24 and 25, it so seemed that Bains was hinting towards a collusion between the woman employee and the two court-masters, Manav Sharma and Tapan Chakraborty, dismissed by CJ Gogoi for having tampered with an order to dispense with Anil Ambani's personal appearance which Justice Nariman had mandated in the Ericsson-RCom case.
"There was the episode of Tapan Chakraborty and Manav Sharma...Action has been taken by the CJ for the first time in the history of the country...no other CJ could do such a thing before...if the CJ wants to clean the system, we are with him...he is taking action after action without any fear and it will reflect on the independence of the judiciary...if there is any collusion of the person, or disgruntled employees, it is a very serious issue...When somebody tries to improve things, he is killed?! Maligned?!- 'If you take an action, we will malign you worse?!'", Justice Mishra had remarked passionately.
"He says one Ajay came to meet him. He doesn't know who Ajay is, but he says he is offered bribe of Rs. 1.5 crores by Ajay to frame the CJI...he says that some disgruntled employees- Manav Sharma, who was removed by the CJI, along with other employees have ganged up. There is also a certain registry person", the judge had let on.
But one could rationally wonder how the removal from service of the two court masters in February for tampering with a judicial order in January and their subsequent collusion with or their manipulation of the lady junior court assistant explains her dismissal on seemingly inadequate grounds in December last year (from a job that was now claimedly offered back to her in the in-house procedure )?
"I was particularly struck by the fact of her dismissal after the alleged event, which appeared to be on flimsy grounds – i.e., leave of absence for half-a-day, and making a fuss about the change in her seating position, etc", former Delhi High Court Chief Justice A. P. Shah has been quoted as saying in this behalf . "For the present, the internal justice meted out to the employee seems in violation of due process and prima facie excessive...It is arguable that such a major penalty should not have been imposed; and although formal procedures were followed, they may have been insufficient and hurried.", concurs Senior Supreme Court Advocate Rajeev Dhawan .
The Supreme Court Officers and Servants (Conditions of Service and Conduct) Rules envisage that in matters not dealt with under them, the position as it prevails in respect of the servants of the government of India shall apply. And as per an Office Memorandum of the government of India, even in the face of facts which have led to conviction in a Criminal Court of a government servant, dismissal is not to be automatic! Each case is to "be examined on its merits and orders imposing the appropriate penalty passed only where the charges against the government servant on which his conviction is based show that he was guilty of moral turpitude or of grave misconduct which is likely to render his further retention in service undesirable or contrary to public interest" [].
But here, from the records of her disciplinary hearing available in public domain, the demeanour of the woman court assistant which hit the final nail in her coffin does not seem to carry even a tinge of moral turpitude or such grave misconduct.
Nevertheless, Bains having led his findings and supporting evidence (including a CCTV footage) to the court in sealed covers, much has been left to imagination as to the justification of these 'ifs and buts'.